‘The unprecedented challenges we are facing in the Anthropocene require

radically new governance approaches that recognize the entanglement

between human activities and Earth system processes. This volume provides a
cutting-edge contribution to the emerging field of Earth system law by
exploring and proposing novel legal developments for governing planetary
transformations created by humans.’
Agni Kalfagianni, Co-chair of the Earth System Governance Project

‘Earth System Law: Standing on the Precipice of the Anthropocene is a

ground-breaking work in the climate governance literature. The book reas-
sesses the status quo for legal process. To do so, it uses years of expert insight
into how to meet the challenges environmental change presents to governance
as its measure of assessment. Its conclusion is that the status quo for legal
process has become dangerously antiquated at this critical moment in Earth’s
history. Much of the book explores what types of legal reform are needed
from various disciplinary positions. The result is an outline of a new theory of
law, which draws its direction from pragmatic solutions to the governance
problems created by climate change.
Undoubtably, this theory will appear strange and unfamiliar to many,
straining their legal imagination. But this strain is a testament to the book’s
importance. Many of us cling — with good reason — to our confidence in
how society ought to be ordered. Our legal status quo, which supports the
modern order, was hard-won in the trenches of Verdun and on the beaches of
Normandy. Since then, it has served as the midwife for the birth of the
modern nation-state, establishing a common ground for the negotiation of
conflict in multiple contexts. Undermining this status quo may invite many
risks to social stability. On the other hand, law inevitably must adapt to
change and, as this book suggests, pragmatism must trump convention at this
time when we stand on the precipice of environmental catastrophe.
For these reasons, Earth System Law: Standing on the Precipice of the
Anthropocene is a provocative book, which ought to be read widely.’
Fenner Stewart, Associate Professor of Law at the University of Calgary,
Canada; Dentons Canada LLP Research Fellow in Energy Law &
Policy; Research Fellow in Energy and Environment at The School
of Public Policy; Climate Governance Expert at the Canada
Climate Law Initiative
Earth System Law: Standing on the
Precipice of the Anthropocene

This book systematically explores the emerging legal discipline of Earth system
law (ESL), challenging the closed system of law and marking a new era in law and
society scholarship. Law has historically provided stability, certainty, and predict-
ability in the ordering of social relations (predominantly between humans). How-
ever, in recent decades, the Earth’s relationship in law has changed with increasing
recognition of the standing of Mother Earth, inherent rights of the environment
(such as flora and fauna, rivers), and now recognition of the multiple relations of
the Anthropocene. The book questions the fundamental assumption that ‘the law’
only applies to humans, and proposes that the Earth, as a system, has intrinsic
rights and responsibilities. In the last ten years the planet has experienced its hot-
test period since human evolution, and by the year 2100, unless substantive action
is taken, many species will be lost, and planetary conditions will be intolerable for
human civilisation as it currently exists. Relationships between humans, the bio-
sphere, and all planetary systems must change. The contributors address these
challenging topics, setting the groundwork of ESL to ensure sustainable develop-
ment of the coupled socio-ecological system that the Earth has become. Earth
system law is an interdisciplinary and transdisciplinary research project, and, as
such, this book will be of great interest to researchers and stakeholders from a
wide range of disciplines, including political science, anthropology, economics,
law, ethics, sociology, and psychology.

Timothy Cadman is a Senior Research Fellow with the Earth System Gov-
ernance Project and an Associate of its Task Force on Earth System Law. He
is a Research Fellow in the Law Futures Centre and the Institute for Ethics,
Governance and Law at Griffith University, Australia.

Margot Hurlbert is a Senior Research Fellow with the Earth System Governance
Project and an Associate of its Task Force on Earth System Law. She is Canada
Research Chair, Tier 1 Professor in Climate Change, Energy, and Sustainability
Policy at the Johnson-Shoyama Graduate School of Public Policy, Canada.

Andrea C. Simonelli is Assistant Professor of Political Science at Virginia

Commonwealth University, USA, and founder of Adaptation Strategies
International (ASI).
Challenges of Globalisation
Series Editors: Charles Sampford and Melea Lewis, Griffith University,
Australia

This series seeks to make systematic contributions to international debates

over two intimately related issues:
 The values that should inform the governance of modern states and the
globalizing world in which they are increasingly enmeshed, in particular
whether the liberal democratic values that sought to civilize the sover-
eign state need to be reconceived as global values.
 The institutions that are needed to realize those values, be they local,
national, regional, international, transnational or global.

Strengthening the Rule of Law through the UN Security Council

Edited by Jeremy Farrall and Hilary Charlesworth

Law, Lawyering and Legal Education

Building an Ethical Profession in a Globalizing World
Charles Sampford and Hugh Breakey

Norm Antipreneurs and the Politics of Resistance to Global Normative Change

Edited by Alan Bloomfield and Shirley V. Scott

Judges and Democratization

Judicial Independence in New Democracies
B. C. Smith

Regulating the Use of Force by United Nations Peace Support Operations

Balancing Promises and Outcomes
Charuka Ekanayake

Earth System Law

Standing on the Precipice of the Anthropocene
Edited by Timothy Cadman, Margot Hurlbert and Andrea C. Simonelli

For more information about this series, please visit: https://www.routledge.

com/Challenges-of-Globalisation/book-series/CG
Earth System Law
Standing on the precipice of the
Anthropocene

Edited by
Timothy Cadman, Margot Hurlbert and
Andrea C. Simonelli
First published 2022
by Routledge
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© 2022 selection and editorial matter, Timothy Cadman, Margot Hurlbert
and Andrea C. Simonelli; individual chapters, the contributors
The right of Timothy Cadman, Margot Hurlbert and Andrea C. Simonelli
to be identified as the authors of the editorial material, and of the authors
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A catalogue record for this book is available from the British Library
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ISBN: 978-1-032-05624-1 (hbk)

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ISBN: 978-1-003-19843-7 (ebk)
DOI: 10.4324/9781003198437

Typeset in Times New Roman

by Taylor & Francis Books
To those who have died, and their loved ones.
Contents

List of illustrations xii

List of contributors xiii
Foreword xvi
Preface xix
Acknowledgements xx
Acronyms xxi

1 Introduction: Origins and evolution of Earth system law 1

TIMOTHY CADMAN

PART I
Mapping the contours of Earth system law 13
2 Dimensions and definitions, signposts and silos in Earth system
law 15
TIMOTHY CADMAN, MARGOT HURLBERT AND ANDREA C. SIMONELLI

PART II
The analytical dimensions of Earth system law 31
3 Earth system law in the age of humanity 33
WALTER F. BABER

4 International Relations and the analytical foundations of Earth

system law 55
MIKE ANGSTADT

5 An Earth system science-based perspective: A foundational

feature of Earth system law 72
EDGAR FERNÁNDEZ FERNÁNDEZ
x Contents
6 The ESL framework: Re-visioning in the age of transformation
and the Anthropocene 89
MARGOT HURLBERT

PART III
The normative dimensions of Earth system law 109
7 Rights of nature as an expression of Earth system law 111
ALICE BLEBY

8 The ethical place of the non-human world in Earth system law:

Pathways of transformation 128
ROSALIND WARNER

9 Legitimacy and the role of law for social and ecological resilience 148
BRITA BOHMAN

10 Climate (im)mobilities in migration governance and law:

Integrating an Earth systems perspective 165
ANDREA C. SIMONELLI

PART IV
The transformative dimensions of Earth system law 183
11 The Earth system, the orbit, and international law: The
cosmolegal proposal 185
ELENA CIRKOVIC

12 Integrating the Mexican water law into the Earth system law
perspective 205
GABRIEL LOPEZ PORRAS

13 A framework of Earth system justice in the Earth system’s legal

context 226
MACIEJ NYKA

14 Common interest, concern or heritage?: The commons as a

structural support for an Earth system law 248
PAULO MAGALHÃES
 Contents xi
PART V
Plotting the course of Earth system law 267
15 Conclusion: Plotting the course of Earth system law on the
precipice of the Anthropocene 269
MARGOT HURLBERT, ANDREA C. SIMONELLI AND TIMOTHY CADMAN

Index 284
Illustrations

Figures
3.1 An Environmental Rights Opportunity Structures (EROS) force
field 47
3.2 A model of environmental human rights research and advocacy 51
6.1 A critical realist Earth system legal research framework 92
12.1 The Earth system law conceptual framework 207
15.1 Earth system law’s expanded cognitive and moral framework 281

Tables
1.1 The analytical, normative and transformative dimensions of
ESL and associated questions 4
2.1 The analytical, normative and transformative dimensions of
ESL and associated questions with proposed answers 25
6.1 Earth system law research lens and contextual conditions 102
8.1 Comparative analysis of ESL pathways 141
12.1 A comparison of the implications of an ESL approach and the
institutional principles of adaptiveness 209
12.2 Pecan production and mining activity in Mexico analysed
through the five major components of telecoupling 217
15.1 Analytical dimensions of Earth system law 273
15.2 Normative dimensions of Earth system law 275
15.3 Transformative pathways and dimensions of Earth system law 280
Contributors

Mike Angstadt is a Research Fellow with the Earth System Governance Project.
He is a teacher and researcher at the nexus of environmental law and envir-
onmental politics. His research explores international law, courts, justice and
politics. He joined the Earth System Governance Research Alliance in 2013
as a Research Fellow and is also a member of the IUCN’s World Commission
on Environmental Law.
Walter F. Baber is in the Earth System Governance Lead Faculty. He is Pro-
fessor in the Environmental Sciences and Policy Program and the Graduate
Center for Public Policy and Administration at California State University,
Long Beach, USA, and a member of the State Bar of California. He also
holds many international environmental research affiliations.
Alice Bleby is a PhD student and Scientia Scholar at the University of New
South Wales, Australia. She is researching the rights of nature as a legal
instrument for protecting the Earth in the Anthropocene. Prior to com-
mencing her PhD, she led the Climate Change Adaptation Policy team in
the Victorian Government Department of Environment, Land, Water and
Planning, Australia. She built her skills in policy and advocacy working
with environment NGOs and youth-led organisations.
Brita Bohman is a Senior Lecturer in Environmental Law in the Faculty of Law
at Stockholm University, Sweden. Her research focuses on international and
European Union environmental law and governance, especially marine gov-
ernance. She is also interested in questions related to the role of law in the
governance of complex environmental problems and legal institutional
design. Her research further investigates broader topics including environ-
mental law and sustainability, the role of law for achieving social-ecological
resilience and adaptivity, and ecosystems-based approaches.
Timothy Cadman is a Senior Research Fellow with the Earth System Gov-
ernance Project and an Associate of its Task Force on Earth System Law.
He is a Research Fellow in the Law Futures Centre and the Institute for
Ethics, Governance and Law at Griffith University, Australia. He specia-
lises in governance of sustainable development, environmental politics and
xiv List of contributors
policy, climate change and natural resource management, including forestry,
responsible investment and institutional performance. He works with com-
munities and governments across the Asia Pacific to develop governance
standards for international projects and programmes.
Elena Cirkovic is a Research Fellow with the Earth System Governance Project
as well as the Helsinki Institute of Sustainability Science (HELSUS), Finland.
She is also a Postdoctoral Researcher in the Aleksanteri Institute – the
Finnish Centre for Russian and East European Studies at the University of
Helsinki, Finland. She is currently leading a project on environmental
degradation in the Earth system and outer space (orbital debris).
Edgar Fernández Fernández is a Research Fellow with the Earth System Gov-
ernance Project, and Associate Researcher at Institut de l’Ouest: Droit et
Europe at the University of Rennes, France. He is a member of the Costa
Rican Bar Association. His current research focuses on the implications of
an Earth system approach for international environmental law. He has over
20 years of research and professional experience on the protection of natural
spaces, land tenure and property rights issues.
Margot Hurlbert is a Senior Research Fellow with the Earth System Governance
Project and an Associate of its Task Force on Earth System Law. She is
Canada Research Chair, Tier 1 Professor in Climate Change, Energy, and
Sustainability Policy at the Johnson-Shoyama Graduate School of Public
Policy, Canada. Her research interests focus on energy, climate change, agri-
culture and water. She has made significant contributions to reports of the
Intergovernmental Panel on Climate Change on Land and Climate, notably
as a Review Editor for the Sixth Assessment Report (AR6).
Gabriel Lopez Porras is a Research Fellow with the Earth System Govern-
ance Project and an environmental social scientist and lawyer with over 10
years’ experience in policy design and environmental litigation. He has
worked as an attorney at the Ecology Directorate in Chihuahua, Mexico,
as a regional coordinator at an environmental law NGO, and as an envir-
onmental project consultant in the private sector. Currently, he is a
Research Fellow in Earth System Law at the University of Lincoln, UK.
His research interests include adaptive governance, socio-ecological sys-
tems, resilience theory, and Earth system law.
Paulo Magalhães is a Jurist and Researcher at the Center for Legal and
Economic Research at the University of Porto, Portugal. He is founder
and president of Common Home of Humanity and proposes a new
global legal framework, based on new knowledge about the functioning
of the Earth system.
Maciej Nyka is Associate Professor at Gdansk University, Poland. His main
area of research is environmental law and economic law, especially the
legal perspective on the use of economic instruments of environmental
 List of contributors xv
protection, marine environment protection law and international economic
law. He is the author of over 70 articles, chapters and books published in
Poland, Germany, Slovakia, Great Britain and Ukraine. He is a member of
various research societies, including the European Environmental Law
Forum and the International Law Association.
Andrea C. Simonelli is Assistant Professor of Political Science at Virginia
Commonwealth University, USA, and founder of Adaptation Strategies
International (ASI). She is a speaker for the Climate Voices Network, an
expert for the Climate and Development Knowledge Network, a member
of the Human Rights and Climate Change Working Group, an Associate
with the Millennium Alliance for Humanity and the Biosphere, an external
expert and consultant for the French National Research Agency and the
European Cooperation in Science and Technology.
Rosalind Warner is a Research Fellow with the Earth System Governance
Project and Continuing College Professor in Political Science at Okanagan
College, Kelowna, Canada. She has researched and published on topics
such as ecological modernisation, global environmental governance
issues, protected areas governance in North America, environmental
discourses, global disaster risk reduction in Canadian foreign policy,
and environment and trade in Canadian foreign policy.
Foreword

The recognition of the Anthropocene as a new epoch in the history of our

planet has fundamentally redefined how people relate to nature. It has also
changed the functions of law. While law has been understood for centuries, in
the Euro-centric tradition at least, as normative relationships between people
and the state and as law among sovereign states, the Anthropocene now poses
radically new challenges of governing human societies in an interdependent,
highly complex Earth system. It also forces us to reconsider the rights of
nature and of unborn generations along with multifaceted claims of justice.
Given these novel challenges, it is increasingly argued that the Anthropocene
calls for an entirely new legal paradigm – Earth system law.
After a series of ground-breaking journal articles by Louis Kotzé, Rakhyun
Kim and others in recent years, it is commendable that we now have the first
book-length treatment of Earth system law. This book is a milestone in the
continuous development of novel approaches in legal theory and practice that
seek to better account for the daunting Anthropocene challenges.
At the same time, this book is an important contribution to the broader,
interdisciplinary research programme on Earth system governance. The role
of law has been an integral part of Earth system governance research from its
beginning. Law was a key element of the first Science and Implementation
Plan of the Earth System Governance Project in 2009. Legal debates have
been a key concern under the project’s research theme of architecture. Legal
theory also influenced research on access and allocation and was important in
exploring issues of agency, adaptiveness and accountability and legitimacy.
Moreover, law was reflected in the project’s cross-cutting theme of norms
that the 2009 science plan prioritised as well. The second science plan of
the Earth System Governance Project of 2018 has followed this trend and
continues to provide multiple avenues for lawyers to cooperate within the
broader governance research programme.
There is no doubt that the study of Earth system law poses a huge research
challenge with complex analytical, normative and transformative dimensions.
This volume reflects this by covering all these three dimensions, neatly orga-
nised around a suite of theoretical and practical concerns. Analytically, scho-
lars of Earth system law need to reconsider the very foundations of law, for
 Foreword xvii
example, the relations between society and law or between the fields of inter-
national relations and international law, all of which might require novel
theoretical approaches and reflections. The normative dimensions of Earth
system law are challenging as well. Scholars might need here to redefine the
role of nature, explore novel ideas of rights of nature or the legal standing of
non-human entities, from animals to the legal recognition of the rights of
rivers or even the declaration of the entire Earth system as a common heri-
tage of humankind. In the end, lawyers will need to leave behind the certain-
ties of a positivist legal order and embark on new ways of legal reasoning.
The challenges of the Anthropocene do not allow for business of usual. They
require fundamental societal and political transformations towards Earth
system governance and hence Earth system law.
As many chapters of this book reflect, the rethinking of law in the
Anthropocene is not a mere academic exercise confined to ivory towers of law
departments. The practical implications are becoming more prominent every
day. Numerous courts around the world are responding to the threat of Earth
system transformations by interpreting the law in novel and exciting ways.
Litigation has become one of the foremost strategies of environmentalists in
many countries. For example, the Dutch government has lost a case against
local environmentalists who claimed that the Dutch state is failing to suffi-
ciently protect citizens from climate change. Germany’s constitutional court
ruled in 2021 that the country’s climate legislation unfairly disadvantages the
youth, as it would create an unconstitutional limitation to the freedoms of the
young. More recently, a Dutch district court has ordered Shell, as a private
corporation, to reduce its emissions of carbon dioxide to protect the global
climate. All these cases have been hailed by environmentalists and climate
activists. However, the cases also signal the complexity of the current legal
situation, where governments fail to shield their citizens from global environ-
mental change and where citizens thus take to the courts to claim their con-
stitutional rights to life, a healthy environment and a future for their children.
While litigation is a route that seems to bring success after success to the
environmental movement, it also shows the urgent need for a strong
research programme on Earth system law – and hence, again, the timeliness
of this book. When district judges and constitutional courts leave behind the
traditional understanding of law by redefining the legal obligations of gov-
ernments, corporations and citizens, with novel interpretations of the rights
of citizens, nature and future generations, academic legal communities are
called upon to support such novel trends in the courts with solid theoretical
reasoning and rigorous analytical work. New interpretations of law by
courts require a firm grounding in legal theory and a better understanding
of what Earth system law calls for in concrete cases. This book makes an
important first contribution to this challenging debate that requires much
more attention in the legal sciences.
The transformative character of this rapid development of Earth system
law, however, poses novel challenges also to the practice of legal scholarship,
xviii Foreword
especially with a view to global justice and democracy. First, any reinterpre-
tation of the law must build on a full consideration of global inequalities and
injustices. Novel interpretations of the rights of nature or future generations,
or a new ecocentric approach in legal science, are only legitimate if read in
the context of equally important concerns of social justice. Notably, they must
fully consider global inequalities and the worldwide eradication of poverty.
Second, the stronger roles that many courts now assume in charting new ways
in interpreting constitutional law could lead to a new balance in the separa-
tion of powers, with some courts increasingly overruling environmental poli-
cies enacted by parliaments. This trend raises concerns about the role of the
judiciary and of the future of democracy in the Anthropocene. Many scholars
have pointed to the dangers of the technocratic rule of experts, such as sci-
entists and top-level bureaucrats. Similar concerns could now be raised about
the broader roles that some district judges and high courts are assuming for
themselves.
Given the inherent global challenge of Earth system law, we must also revisit
how the international legal community functions. First, the need for a more
interdisciplinary approach that brings in the humanities and social sciences is
evident. Second, the complexity of Earth system challenges makes a closer
cooperation with the Earth sciences essential. Third, the global legal discourse
on Earth system law that so rapidly develops, remains embedded by and large
in a predominantly anglophone academic community at universities of the rich
industrialised countries. Billions of people are thus underrepresented, and the
legal community in the Global North – where only a minority of humankind
lives – dominates the contours of the debate. The theory of Earth system law,
as it is currently evolving, is not different in this respect, even though the edi-
tors of this volume tried hard to have a broader debate and more diversity
represented. To legitimately and authoritatively chart new ways towards Earth
system law, the legal sciences still have a long way to go towards more diversity,
inclusiveness and openness to other voices and views.
In short, this book is the first volume entirely devoted to exploring the
novel notion of Earth system law. It is without any doubt a major milestone
in the long way towards a new understanding of law and legal science in the
Anthropocene.

Frank Biermann
Utrecht University, the Netherlands
Founding Chair, Earth System Governance Project
Preface

This volume is a stand-alone investigation of the current state of law and its
future potential, in the context of planetary perturbations created by humans. It
has arisen from, but is not confined to, scholars who are part of the international
Earth System Governance Project. As humanity confronts climate change, bio-
diversity loss, melting icebergs, sea-level rise, droughts, fires and floods, it has
become clear that the thresholds of many inter-related planetary-level functions
(or Earth systems) have been crossed. This has major implications for nation-
states, which have previously seen themselves as sovereign entities within their
own borders, and have dealt with legal, national, and transboundary challenges
largely in that capacity. Earth system law is a new frontier of law and legal stu-
dies, which seeks to move beyond contemporary notions of environmental law. It
advances an analytical, normative and transformative approach, which recog-
nises that the Earth, and the many systems which sustain it, including, but not
limited to, the atmosphere, the biosphere, the geosphere, the hydrosphere and the
cryosphere, function as a single whole. The book provides new perspectives on
understanding how the traditional practice of law has failed to protect the life-
support systems on which the Earth and its inhabitants depend. From the depths
of the ocean to outer space, this book presents an alternative vision of what is
required to ensure the law remains a relevant, legitimate and effective mechan-
ism for governing human and societal interactions and their impacts on the
planet, in this, the era of the Anthropocene. This work builds on and extends
existing scholarship in this emerging field by providing a series of cutting-edge
investigations into how Earth system law can be understood, the role it should
play in the context of a planet under pressure, and the opportunities it provides
in reshaping the law into a force for good in the light of the changes to come.

Timothy Cadman
Margot Hurlbert
Andrea C. Simonelli
Acknowledgements

The editors would like to recognise the Earth Systems Governance Project and
the Task Force on Earth System Law, both of which provided encouragement
in the early stages of this book’s conception. They also gratefully acknowledge the
financial and logistical support provided by Griffith University, the Arts,
Education and Law group, the Law Futures Centre, and the Institute for
Ethics, Governance and Law. The editors also acknowledge the editorial
contributions of Dr Rosalind Warner and Dr Michelle Lim. Heartfelt thanks go
in particular to Rebecca Marshallsay and Kirrallee Grace for their assistance in
preparing this book for submission to the publisher, and to Routledge, especially
Emily Ross and Hannah Rich, in bringing it to completion.
Acronyms

ACHR American Convention on Human Rights

CAT Convention Against Torture
CBD Convention on Biological Diversity
CC Common Concern
CCH Common Concern of Humankind
CCP UN Climate Protection Campaign
CHH Common Heritage of Humankind
CONAGUA Mexico’s National Water Commission
COP Conference of the Parties
COSPAR Committee on Space Research
CSOs civil society organisations
CSR corporate social responsibility
EC environmental constitutionalism
ECHR European Convention on Human Rights
EEZ Exclusive Economic Zones
ENSO El Niño–Southern Oscillation
EO Earth’s orbit
EROS Environmental Rights Opportunity Structures
ESA European Space Agency
ESG Earth System(s) Governance
ESGP Earth System Governance Project
ESL Earth system law
ESSP Earth System Science Partnership
GEP global environmental politics
GHG greenhouse gas
GJIE Global Judicial Institute on the Environment
ICJ International Court of Justice
ICSU International Council for Science
IDP internally displaced persons
IGBP International Biosphere-Geosphere Programme
IGO intergovernmental organisation
IHDP International Human Dimensions Programme on Global
Environmental Change
xxii Acronyms
IL international law
ILC International Law Commission
IPBES Intergovernmental Science-Policy Platform on Biodiversity
and Ecosystem Services
IPCC Intergovernmental Panel on Climate Change
IR international relations
IUCN International Union for Conservation of Nature
LEO low Earth orbit
LOS legal opportunity structures
MEA Multilateral Environmental Agreement
MWLF Mexican Water Legal Framework
NAFTA North American Free Trade Agreement
NELD non-economic loss and damage
NRC National Resistance Council (Uganda)
NRM National Resistance Movement (Uganda)
OST Outer Space Treaty
PB planetary boundaries
PBF Planetary Boundaries Framework
SBSTTA Subsidiary Body on Scientific, Technical and Technological
Advice
SDG Sustainable Development Goals
SMO Social Movement Organisations
SSR Space sustainability Rating
STS Science and Technology
TFCD Task Force on Climate-related Financial Disclosures
UDHR Universal Declaration of Human Rights
UN United Nations
UNCLOS United Nations Convention on the Law of the Seas
UN COPUOS United Nations Committee on the Peaceful Uses of Outer
Space: Scientific and Technical Subcommittee
UNDRIP UN Declaration of the Rights of Indigenous Peoples
UNEP United Nations Environment Programme
UNESCO United Nations Educational Scientific and Cultural
Organization
UNFCCC United Nations Framework Convention on Climate Change
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNOOSA United Nations Office for Outer Space Affairs
WIM Warsaw International Mechanism
WMO World Meteorological Organization
1 Introduction
Origins and evolution of Earth system law
Timothy Cadman

Background
This work has been four years in the making. Originally conceived in 2017, its
authors first submitted their abstracts in 2018, followed by preliminary essays
in 2019, and completed chapters in 2020. It may seem strange to start this
book with a catalogue of dates, but there is a reason. The World Meteor-
ological Organization (WMO) declared 2016 to be the hottest ever recorded,
taking the world into what it called ‘unchartered territory’ (World Meteor-
ological Organization, 2017). In the same year, and again in 2017, Australia’s
Great Barrier Reef suffered two catastrophic bleaching events, followed by a
third in 2020; in five years, half of the shallow water corals of the reef were
dead and scientists had declared the ecosystem in danger of imminent col-
lapse (Cockburn, 2020; Dietzel et al., 2020; Hughes et al., 2018). Despite an
apparent reprieve, due to a La Niña cooling of the ocean’s surface as part of
the broader El Niño Southern Oscillation (ENSO) climate pattern, 2020 was
also one of the world’s hottest years on record; the previous five years were
the warmest in recorded history (World Meteorological Organization, 2020),
in a decade with the highest global temperatures ever documented (Blunden
and Arndt, 2020). Since the Earth’s climate is a dynamic system, it is affected
by the interactions between the atmosphere, the hydrosphere, the cryosphere,
the lithosphere and the biosphere (Pörtner et al., 2019). As such, whatever
policy decisions are made to combat anthropogenic climate change, good or
ill, will take decades to come into effect, due to inertia in the system – physi-
cal, not political: that is another discussion altogether (Boston et al., 2011;
Hansen et al., 2013). The fate of the planet will be locked in, forcing future
generations to make choices about circumstances over which they will have
no control, while those who were responsible will be long gone – and where is
the justice in that?
That multiple planetary-level interactions might function collectively as a
single system has been theorised since ancient times. But Earth system science
remained relatively unknown as a discipline until the 1970s, when James
Lovelock reworked the age-old stories of Greek mythology into his Gaia
hypothesis, subsequently sparking a rethink about global environmental

DOI: 10.4324/9781003198437-1
2 Timothy Cadman
politics, and climate change in particular (Litfin, 2005). Legal scholars also
began to examine the idea that nature had rights, and such terms as Earth jur-
isprudence and wild law started to appear in the literature (Murray, 2014). The
term Earth systems law (plural) may be traced to a work published as early as
1995, exploring the relationship between humans, nature and modern society
(Bosselmann, 1995). However, the relationship between Earth system science
and international environmental law seems to have come much later, in a paper
of 2014, arguing that international agreements should reflect the complex adap-
tive systems of the Earth, if they are to avoid the fragmentation common in
environmental policy (Kim and Mackey, 2014). The first occurrence of Earth
system law (ESL, singular) appears to be in an editorial of the Review of Eur-
opean Community & International Environmental Law in 2015, commenting on a
paper advocating for ecological integrity as a basis for international environ-
mental law, but not in the paper itself (Kim and Bosselmann, 2015; van Asselt,
2015). In 2017, the Earth System Governance Project (ESGP), one of the leading
international academic networks exploring the interactions between governance
and global environmental change, established the Taskforce on Earth Systems
Law ‘to explore novel legal developments in and for the Anthropocene, where
the Earth as a whole is now seen to have become a socio-ecological system’
(Earth System Governance Project, n.d.a). By 2019, the first academic
paper referring specifically to ESL and the Anthropocene in its title had been
published, heralding a new era in legal scholarship (Kotzé and Kim, 2019).

The scholarly underpinnings of this book

The contributors to this volume were selected from an open call for papers,
first launched in May 2019 (Earth System Governance Project, 2019). The
editors wish to acknowledge the broad sweep of representation from a variety
of countries and continents in this volume, as well as the balance of gender
and capability, from professors to legal practitioners, and emerging scholars.
They also accept the European and Northern predominance of contributors;
a sign perhaps of the locus of origin of Earth systems governance as an aca-
demic network, and the Taskforce on Earth Systems Law, from which this
title sprang (Earth System Governance Project, n.d.b).
While there have been a number of journal articles and academic papers
on the topic, Earth System Law: Standing on the Precipice of the Anthro-
pocene is the first book to be published on this emerging legal discipline. It
questions the fundamental assumption that the law only applies to humans,
and posits that the Earth, as a system, has intrinsic rights, and that humans
have intrinsic responsibilities towards it. By 2100, unless substantive action
is taken, many species will be lost, and planetary conditions will be intoler-
able for human civilisation as it currently exists (Conkin, 2007; Tollefson,
2020). In short, humanity is standing on a precipice. Relationships between
humans, the biosphere and all planetary systems, must change. This book
addresses these challenging topics.
 Introduction 3
It is far easier to reflect on the fate of the planet and advocate for a new
approach to doing law in the context of the contemporary era, than it is to
describe ESL, although some early efforts are to be commended (Kotzé, 2020).
Consequently, an attempt has been made in this book to seek out the views of a
wide range of scholars to help delineate the contours of this emerging body
of thought and chart its future directions. As this discipline is still in its
developing stages, the book examines which analytical frameworks might be
applied to both understanding and applying ESL in diverse national, geo-
physical and philosophical contexts. From a normative perspective, it also
speculates as to how ESL should be used, and what values it is seeking to
promote and protect, notably through the lenses of inequality and sustain-
ability, key issues underlying ESL’s development. Finally, the book considers
the extent to which ESL can serve as a transformative concept for law in the
Anthropocene, or as it has also been called, Lex Anthropocenae (Kotzé and
French, 2018).
However, the analytical, normative and transformative dimensions of ESL
themselves engender a series of questions, and these too are interrogated by
the contributors to this book (Table 1.1).

Overview of the volume

As intimated above, this book is divided into five Parts. Immediately follow-
ing this introduction, in Part I, ‘Mapping the contours of Earth system law’,
Chapter 2, ‘Dimensions and definitions, signposts and silos in Earth system
law’, Andrea C. Simonelli, Margot Hurlbert and Timothy Cadman describe
the structural and theoretical components of ESL, exploring definitional
terms (Earth systems versus Earth system theory, Anthropocene, etc.) and
outline the gaps, tensions and silences identified by the authors within this
volume. This is the beginning of the quest to find answers to the questions
posed about ESL in Table 1.1.
Part II, ‘The analytical dimensions of Earth system law’, considers, first,
what ESL is, and questions how conventional legal discourses translate into
ESL. The authors in this Part interrogate the theoretical, methodological and
analytical frameworks that inform ESL and explore the theoretical and prac-
tical links between the Anthropocene, ESL and Earth system governance.
This part is comprised of four chapters.
In Chapter 3, Walter F. Baber in ‘Earth system law in the age of humanity’
makes an argument that new opportunities to protect the environment as well
as an analytic for advancing and measuring these opportunities are required.
The Anthropocene, the recognition of the change agents that humans have
become, entails great responsibility as well as great opportunity. Baber creates
an analytic using existing research on legal opportunity structures and
Environmental Rights Opportunity Structures (EROS) as configurations of
circumstances that are supportive of civil society, interventions into environ-
mental decision making, and participation in either litigation or regulatory
4 Timothy Cadman
Table 1.1 The analytical, normative and transformative dimensions of ESL and asso-
ciated questions
Analytical dimensions of
ESL
What is understood by  Does ESL exist? Can it be created from existing
ESL? principles of law and legal developments? Does ESL
go beyond conventional legal theories to address the
Anthropocene and how?
 What role do law and legal institutions play in Earth
system governance in the Anthropocene?
 What are the cross-overs between current law and
concepts enshrined in the Anthropocene?
How can the fundamen-  How are conflicts between adaptiveness and the rule
tally static, and anthro- of law negotiated, framed and resolved? Which his-
pocentric nature of law toric rules of law need to be addressed? Which need
and lawyers be dealt to remain?
with?  Can we stretch existing law or do we need to create
new law?
How can the memes of  How is ESL in society to be envisioned? What is the
ESL be translated to a socio-legal-Earth relation? What about local
wider audience? (common) law and global law? Or nation-state law,
and soft international law?
Which theoretical and  Is a jurisprudential analysis of ESL enough, or is a
methodological frame- post-structural analysis of the experience of law
works should inform required, i.e., a body of living law – and what are the
ESL? narratives or discourses of law in the context of ESL?
 Can ESL be analysed on the basis of conflict, power,
hegemony, and social class, or must these concepts be
refined or expanded?
Normative dimensions of ESL
Addressing inequality  Will the rule of law really solve everything?
How can ESL overcome  What international norms and institutions are parts
inequalities, pervasive of ESL?
hierarchies among spe-
 What is the normative view of non-human life? How
cies, geographical
can this be protected in law, for example, are there
regions, countries and
retirement rights for cows?
across generations?
 Do human rights exist in conflict with non-human
life?
 Is there a need for an interspecies ombudsperson?
Ensuring sustainability  What is the role of standards in ESL, and should
How can ESL ensure a they be voluntary or mandatory?
sustainable way of  Should there be an international Earth system court?
exploiting resources,
 How does jurisprudence apply to sustainability as a
directing investments,
legal norm?
and orienting technologi-
cal development and  Could/should soft contested eco-norms become hard?
institutional change?
 Introduction 5
Analytical dimensions of
ESL
Transformative dimensions of ESL
What are the transforma-  How can the transformations under ESL benefit from
tive pathways, that ESL concepts and experiences stemming from Earth
should develop? system governance?
To what extent could  What are cross-cutting principles? Can they have
adaptive legal systems universal application? Are they in silos, or can they
serve as a transformative be global?
concept for ESL in the  Can rights of eco-centrism evolve? What has changed
Anthropocene? in eco-constitutionalism?
 What are the problems and path dependencies of
state-centrism? Where is the will to change? Can
there be non-state internationalism? Why are existing
mechanisms not working?

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

and legislative processes. This systematic and comprehensive analytical fra-

mework explains and guides those who want to transform EROS structures.
In Chapter 4, ‘International relations and the analytical foundations of
Earth system law’, Mike Angstadt sets the stage for visionary legal approa-
ches, new analytical tools and frameworks of environmental and human
social changes, and in so doing, provides a toehold for social science insights
that thus far have not widely informed legal analysis. These suggested changes
are steeped in international relations and global environmental politics, with
emphasis on norm diffusion, judicial globalisation, and legal practices
reflecting an Earth systems approach. Expanding law to include social science
insights beyond the legal discipline, including interdisciplinary Earth system
governance, advances theoretical and methodological pluralism, and could
achieve norm diffusion, and judicial globalisation.
In Chapter 5, ‘An Earth system science-based perspective: A foundational
feature of Earth system law’, Edgar Fernández Fernández highlights the fun-
damental role of an Earth system science-based perspective in defining and
constructing what ESL is. This perspective is important because at its core is
an implicit ethical frame on global stewardship, a perspective implicit in
Earth system transformation and change, and emphasis on the importance of
governance, or steering society within the normative concept of sustainable
development. Reimagining ESL in the time of the Anthropocene has been
advanced by scholarship including that of the Earth’s safe operating space,
recognition of the Earth system as a United Nations Educational Scientific
and Cultural Organization (UNESCO) natural intangible endangered heri-
tage, transforming the UN Trusteeship Council for the purpose of governing
and managing the whole Earth system, the idea of the Earth condominium as
6 Timothy Cadman
a legal model for the Anthropocene, or the idea of a framework convention
on planetary boundaries.
Bringing Earth system governance and ESL into closer alignment, Margot
Hurlbert in Chapter 6, ‘The ESL framework: Re-visioning in the age of
transformation and the Anthropocene’, argues that the Anthropocene opens a
new front for the conceptualisation of law, society and the Anthropocene.
Building on Baber’s call for an environmental rights opportunity structure
configuring social, political and legal circumstances supportive of civil society
participation, Angstadt’s call for the creation of a toehold for social science in
ESL, and Fernández Fernández’s call for the incorporation of international
relations and Earth system science into Earth systems law, Hurlbert develops
a new theoretical ESL framework. Incorporating social science through law
and society literature, together with the Earth systems governance framework,
Hurlbert reimagines the space for ESL scholarship.
Part III, ‘The normative dimensions of Earth system law’, seeks pathways
forward in addressing the fundamentally static and anthropocentric nature of
law and lawyers. Ethical dimensions of intragenerational, intergenerational
and inter-species issues as well as justice issues centring on geographical
regions and countries are explored. How to eradicate socio-ecological injus-
tices among and between species, geographical regions, countries and across
generations through the development of a new ESL in the Anthropocene is
engaged in four chapters.
In Chapter 7, ‘Rights of nature as an expression of Earth system law’, Alice
Bleby suggests that the Anthropocene forces humanity to reimagine its relation-
ship with the Earth and rethink the way human systems interact with Earth’s
systems. The Anthropocene describes and prescribes; it transforms and allows
for recognition of the interconnected and interdependent systems that drive life
forces. ESL and the rights of nature (nature’s right to life, right to regenerate, and
right to be restored) are argued to be complementary and mutually enriching,
such that the incorporation of nature theory, legal instruments and jurisprudence
can express the reciprocal qualities of ESL. Nature rights illuminate critical
questions about values and normative orientations. Agency, architecture, allo-
cation concepts of Earth systems governance and justice underscore this view of
ESL. What is required is the promotion of an eccentric approach, embracing
complexity, and adopting a planetary perspective. Implicit is the right to a
system rather than individual being, and rather than regarding human and
nature as separate spheres.
In Chapter 8, ‘The ethical place of the non-human world in Earth system law:
Pathways of transformation’, Rosalind Warner argues that the ethical commu-
nity of the Anthropocene should include the non-human world. Methods to do
so include environmental constitutionalism and changes in environmental rights
law. Focusing on moving land and property law from reflecting privileges and
economic interests into obligations for the non-human world may remedy the
failure of law to prevent breaches of planetary boundaries, persistent short-
sightedness, and reductionism. While the consideration of the deep and
 Introduction 7
harmonious relationship between humans and nature is relatively recent in law,
legal instruments are starting to reflect this ethic. Two framings are facilitating
this transition including: first, the spiritual/ecological, focusing on Earth care
and ecological integrity; and second, the materialist, focusing on the needs of the
poor. Both involve critical thinking (surrounding personal values and prio-
rities), engagement (rethinking capitalist and colonial systems of exploitation
and control) and refocusing sustainability back to the human and social
realm. Reconciling these activities through a focus on the intrinsic value and
ethical equality of the human and non-human has implications in legal
notions of property, personhood, and standing.
In Chapter 9, ‘Legitimacy and the role of law for social and ecological
resilience’, Brita Bohman analyses and discusses the role of law in achieving
resilience in the epoch of the Anthropocene. Conceptually developing ESL in
conjunction with socio-ecological resilience and adaptive management
improves law’s capacity to address pronounced environmental complexity.
This framework provides a measure of legal effectiveness and compliance,
thereby advancing law’s role in governing society in meeting social change
and enhancing its role in establishing legitimacy, participation, and access to
justice and a fair distribution of resources.
In Chapter 10, ‘Climate (im)mobilities in migration governance and law:
Integrating an Earth system perspective’, Andrea C. Simonelli introduces a
planetary focus that is based on the systemic and integrated combination of
the ethical reinterpretation of borders in the Anthropocene. Existing gaps in
law in the Anthropocene concern sovereignty and self-governance, social and
environmental justice for migrants, and cultural loss in the context of climate
migration and displacement. Answers continue to be sought through the same
systems which have failed to solve problems in the Holocene. Earth systems
governance provides an integration of human, social and ecological systems, a
planetary focus that is helpful in the context of migration as humans are not
the only species being displaced. International organisations struggle to
respond to environmental and climate refugees, which raises the question
whether the structures, or conception of the world that these structures are
built on, are failing.
Part IV, ‘The transformative dimensions of Earth systems law’, seeks to set out
pathways that ESL should develop to ensure a positive transformational future
addressing the Anthropocene. Four chapters explore stark new realities in the
Anthropocene. In Chapter 11, ‘The Earth system, the orbit, and international
law: The cosmolegal proposal’, Elena Cirkovic proposes to remedy international
law by addressing the unprecedented environmental impacts of human activities
at the planetary scale, including greenhouse gases and increased orbital
debris. A new approach and method of law making, termed the cosmolegal,
are proposed to challenge the distinctions between scientific and social laws,
and their foundational determinants. A cosmologic method recognises the
capacity of non-humans to have agency; recognising this agency is a global
priority. The cosmolegal merges cosmology (a branch of astronomy involving
8 Timothy Cadman
the study of the universe as a whole) with law, given the need for a different
understanding of the Earth and human-centric global political juridical
space. Cosmolegality not only observes the agency of the non-humans as a
version of human subjectivity, but also on its own terms; human laws need
to recognise that phenomena, such as deglaciation, the atmospheric
unknowns of climate change and orbital debris, do not have a predictable
outcome regarding human survival and global governance. Outer space
and deep sea are not inherently friendly to human survival and will not
accommodate it. This conclusion is made after thoroughly reviewing the
legal regimes in the Arctic and demonstrating the ongoing limitations of
inherent state-centric and human-centric approaches to governance and
space debris mitigation laws.
In Chapter 12, ‘Integrating the Mexican water law into the Earth system
law perspective’, Gabriel Lopez Porras identifies law’s institutional inability to
address the socio-ecological system dynamics, which undermines the rule of
law and governments’ capacity to address the environmental degradation of
the Anthropocene. This in turn prevents the sustainable development
required. To translate novel understandings of Earth system functioning into
the structure of law, the shortcomings of environmental law need to be
addressed. Movement is required from traditional state-centric law towards
ESL and the adoption of principles of adaptiveness, system regulation and
justice. Illustrating this with the Mexican water law’s current legal and insti-
tutional tools helps identify mechanisms to increase adaptiveness, system
regulation and achieve justice for all Earth systems components.
In Chapter 13, ‘A framework of Earth system justice in the Earth system’s
legal context’, Maciej Nyka argues international law in its current form and
scope has become unable to address the problems of the Anthropocene, which is
paradoxical, given international law’s aspiration to be a discipline of crisis. This
is partly due to environmental law’s state-centrism and failure to capture multi-
national corporations or enable non-state actors advancing environmental
agendas. But ESL cannot be purely based on a critique of current law but must
be envisioned based on the core functions law seeks to fulfil, in equitable solu-
tions of conflicts, and overlaps appearing in the social sphere. ESL must be both
descriptive and prescriptive. ESL functions in the borderland between environ-
mental law and human rights and social elements inextricably linked with the
concept of environmental justice and theories of social justice (distribution,
recognition and procedure).
In Chapter 14, ‘Common interest, concern or heritage? The commons as a
structural support for an Earth system law’, Paulo Magalhães identifies a
stable climate as a visible manifestation of a well-functioning Earth system
essential for life on Earth. However, after 30 years of understanding the
adverse effects of climate change as a common interest for humankind, law
has yet to develop what it means from a legal standpoint. There are no eco-
nomic mechanisms to pay for negative emissions and effect a stable climate,
and, as a result, it is technically impossible to build an economy capable of
 Introduction 9
producing the necessary positive contributions of a well-functioning Earth
system. The current international legal framework is not capable of dealing
with the commons without borders and, as such, a legal framework that
establishes the legal status of the Earth system as a new object or trust in
international law sets the structural conditions necessary to build an economy.
Improving and upscaling the legal framework of the common heritage of
humankind form a central concept in responding to the emergence of the
Anthropocene. Employing concepts like the global commons, common inter-
ests, common heritage or common concern of humankind blurs dividing lines
and challenges the modern interstate system. The concern framework, with a
mere duty of cooperation, self-containment and burden sharing, has not been
enough to address climate change. Likewise, the common heritage concept
has had challenges in finding scientific instruments to define, measure and
delimit the concept. Planetary boundaries are a new approach to defining the
combination of variables, relations and parameters describing the Earth
system. These limits are a combination of science-based limits to nine pro-
cesses, including climate change, ozone depletion, biosphere integrity, ocean
acidification and others. Effectively, this is an integrative meta-science of the
whole planet as an interconnected, complex and evolving system. The safe
operating space for humanity may overcome some of the technical limitations
of the common heritage approach.
Part V, ‘Plotting the course of Earth system law’, is the concluding section of
the volume. In Chapter 15, ‘Conclusion: plotting the course of ESL on the
precipice of the Anthropocene’, Margot Hurlbert, Andrea C. Simonelli and
Timothy Cadman respond to the three-fold set of thematic questions raised in
the Introduction on the basis of the perspectives covered in the previous chap-
ters, and in the light of the gaps, tensions and silences in the emerging field of
Earth systems law. The authors provide pointers to the future of the discipline,
and comment on the prospects for the Earth, in view of the precipice on which
it stands, in this, the geological epoch of the Anthropocene.
Finally, each publication that has been produced during, and delayed by,
the current global pandemic cannot but reflect on the existential crisis
humanity faces at present. The possibility exists that human encroachment
into previously undisturbed areas of the natural environment, most notably
forests, may have resulted in the transmission of coronavirus from animals to
people (Rulli et al., 2020). This should give rise to deep reflection on the
urgent need for humanity to re-evaluate its relationship to the Earth, and the
systems, which underpin it.

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Part I
Mapping the contours of Earth
system law

This Part describes the development of ESL, the contributions in the book,
and the main features and tensions of this emerging discipline.

DOI: 10.4324/9781003198437-2
2 Dimensions and definitions, signposts
and silos in Earth system law
Timothy Cadman, Margot Hurlbert and Andrea C.
Simonelli

Introduction
In Chapter 1, Timothy Cadman provided the background of the book, its
scholarly underpinnings, and a walk through its themes. This chapter will dive
deeper into the unique research lens of Earth system law, but in order to do
so, there are several points of contention to reconcile. First are the analytical,
normative, and transformative dimensions of ESL. Conventional legal think-
ing has sought protections for individual species and humans against one
another, but the challenge of climate change and its cascading impacts
across all sectors at once are beyond what remedies exist. The authors of
this volume have tried to reconcile this through the dimensions in ESL, and
how these contend with traditional legal thinking, as well as the demands of
the Anthropocene. Building on Table 1.1 in Chapter 1, the first section of
this chapter examines how the authors answer the questions posed in the left
column of that table. The chapter proceeds with a systematic overview of the
main concepts used in the book and the variation in their usage by both the
authors of this book and the field. Finally, the chapter concludes with a discus-
sion of the right column of Table 1.1 and if or how the authors have provided a
path forward based on which questions could be answered, which could not, and
what kind of signposts are left for guidance.

Dimensions

Analytical
In Chapter 3, Baber addresses the analytical question of how ESL is envisioned
in society. He explains this as a vision of environmental rights opportunity
structures. These would be a configuration of social, political, and legal com-
ponents which are supportive of civil society’s role in environmental decision
making. These can be accomplished in several ways: through participation in
legislation and/or regulation, but additionally through litigation to enforce
these. Civil society plays an important role in supporting environmental rights
and thus, opening up more rigid structures to outside actors with critical

DOI: 10.4324/9781003198437-3
16 T. Cadman, M. Hurlbert and A.C. Simonelli
interests will help take action. ESL seeks to guide practice through its recom-
mendations; this is how Angstadt in Chapter 4 answers how it will deal with
the static and anthropogenic nature of law and lawyers. ESL should incorpo-
rate international relations and international law insights by guiding the design
of new systems that are less reductive. The Anthropocene challenges statist
thinking, but this is only one facet of traditional International Relations (IR).
Cooperation through norm diffusion is better equipped to move past the
shortcomings of the prior state-centric approach. In order to do any of this, it is
important to be clear about the collective understanding of ESL. As it is still
new, developing, and not yet mainstream, it is easy for authors to talk past
each other if they are not clear about the topic. While each author’s definition
is in line with the generalised ESL concept from the nascent field, in Chapter 5,
Fernández Fernández best explains what this is for those readers who may be
new to it. He explains how ESL transcends the usual linear and sectoral
approach to environmental law. ESL is about finding ways to maintain the
state of the Earth system that can sustain human society. This, in turn, will
preserve other natural variability ranges of support systems, including non-
linear processes and regulatory activities. While the focus of humans can tend
to be inwards, the same systems that support humans also support the Earth’s
flora and fauna. Keeping that in mind, it is through the frameworks of power
and justice that Hurlbert argues, in Chapter 6, that we would inform ESL. In
order to reform previous static systems, old conceptions of such things like
power and justice have to be reapplied beyond human activities towards other
humans. As Hurlbert explains, integrating constructivist approaches can expose
power differentials (between how humans treat Earth’s systems and each other).
For real change, what is also needed is the praxis of agency and transforma-
tion. These frameworks are theoretical and methodological, but both are
needed to inform ESL. While theory provides the backbone, methodology is
the how or the toolkit for getting things accomplished.

Normative
In the normative vein of understanding, one major consideration for ESL is
how to address inequality. There are pervasive hierarchies among species,
geographical regions, countries, and across generations, which have posed a
huge obstacle to systems thinking and actions. In Chapter 8, Warner addres-
ses this by suggesting that increasing synergies between diverse regimes is the
key to both addressing the role of non-humans in law and for instigating
transformational changes. This is imperative for global policies and local
practice. In order for Earth systems and non-humans to gain any legal
standing and consideration within the current organisation of legal values and
political priorities, there needs to be international consensus. Lack of full
international consensus is what already makes it hard to implement United
Nations treaties, argues Simonelli, in Chapter 10. It is often large or powerful
nations which bully smaller nations into watered-down treaties or derail
 Dimensions and definitions in ESL 17
stronger language when it comes to environmental protections. It may be that
some country sub-units need to act independently and engage in participation
beyond their national borders. National borders will also be challenged by the
natural migration of flora and fauna as the Anthropocene brings a shift in
where resources will be located, as well as displacing people and culturally
important items. These can be considered invasive in some areas, but essential
in others, how then can ESL ensure the sustainability of such resources – or
any resources – as a way of keeping them from either their destruction or
over-exploitation, directing or redirecting investment? In Chapter 7, Bleby
provides normative solutions, such as extending the application of legal per-
sonhood to such items. In this way, they can be protected for their impact on
society and ecosystems independently. This would necessitate further ela-
boration through ESL principles and the rights of nature doctrine. As
Bohman explains in Chapter 9, the Earth system is interconnected and is an
interdependent social-ecological system with local variation and social varia-
tion. This description of the Anthropocene acknowledges the diversity of
local and regional contexts as well as the distribution of resources. These
connections are not static and will not only morph over time, but also include
the distribution of environmental harm as well. The problem at hand is at
different scales: this is what makes sustainability and inequality so difficult;
there are interconnections, but also disparities.

Transformative
In order to combat these normative challenges, ESL should develop trans-
formative paths forward. What these will look like depends on the challenges
that the authors here consider. In Chapter 13, Nyka thinks about this using a
vision of environmental justice. However, this cannot remain the same as it
has until now; it needs to be rooted in sustainable development, ecosystem
services, and the law overcoming the selfishness of the human species. Similar
to the differing time scales of change as mentioned in the normative section,
transformation can only occur if intra-generational justice is also distribu-
tional, which necessitates the appropriate financial mechanisms. Beyond the
human centricity of multi-generational justice, another transformative path is
Cirkovic’s discussion in Chapter 11 of cosmolegality which extends the
agency of non-humans, but independently, not on human terms. This means
that human laws need to recognise that the phenomena of climate change do
not have a predictable outcome, the Anthropocene has ensured this. However,
human laws need to be adjusted for more than this; there have already been
areas which come under governance which were never hospitable to human
life, such as the sea and the upper atmosphere/space. Taking these issues ser-
iously is what could lead to more adaptive legal systems which, in turn, would
serve as a transformational concept for ESL in the Anthropocene. Magalhães
argues in Chapter 14 that it is through being unrealistic that scholars come
closest to the most realistic way of looking at the future of humanity.
18 T. Cadman, M. Hurlbert and A.C. Simonelli
Transformation begets actually doing things differently. This means employing
community concepts such as the global commons, common interests, common
heritage rather than simply discussing them. Doing this within legal systems
looks like opening them to civil society involvement, argues Lopez Porras, in
Chapter 12, using Mexican water law. He identifies institutional tools and
mechanisms to increase adaptiveness and system regulation for the cause of
justice. Finding such space in other environmental laws is a first step to system
transformation.

Interpretation of concepts, definitions, and reconciliation

Beyond the thematic dimensions, there are the basic concepts and definitions
used across the field. Scholars choose their words with purpose; the variation
originating from making small clarifications and specificities for their particular
purposes. While most concepts follow general agreement across a discipline, the
ways in which these items are redefined matters. In this volume, the authors are
seeking to integrate new ways of thinking about law which challenge the way in
which law is currently conceived, to whom it applies, and how it should be
enacted. Law is a purely human endeavour of justice which considers the way in
which individuals and their organised conglomerates should be treated, com-
pensated, and punished for bad behaviour. ESL considers the rights of the
system(s), not just the agents and actors within it. Systems thinking involves
widening traditional frames where the human conceivers have to posit them-
selves as simultaneously being actors and acted upon, the main characters and in
the background, the arbiters of justice for those who in are in need of justice, and
for the inanimate who could never ask for it.

The Anthropocene
This book initially posits that humanity is standing on the precipice of the
Anthropocene; however, the edge of the Anthropocene has not been clearly
defined. How close is it? Social sciences, including ESL, have tended to be
vague about it, focusing on the effects of climate change while the natural sci-
ences have provided several examples as to where/when the Anthropocene
begins. Dryzek uses Cutzen’s definition in his discussion about governance in a
changing Earth system (Dryzek, 2016). Cutzen defines the Anthropocene as
first being intimated in evidence of rising carbon dioxide and methane levels in
the atmosphere in the mid-eighteenth century, thus arguing that humans have
been living in the Anthropocene without knowing it. Biermann explains the
Anthropocene as a political, global phenomenon and provides five ways in
which it is so (Biermann, 2014). However, he never clarifies when the Anthro-
pocene began, would begin, if it had, or when humanity should be ready for it.
Even Burch et al. define the Anthropocene as one of their main frameworks for
contextual conditions for Earth system governance (ESG) research and then do
not define it (Burch et al., 2019). The authors, like Biermann, either assume
 Dimensions and definitions in ESL 19
that other readers of Earth systems already can define the epoch like Dryzek or
completely take for granted climate change as the way that humans have
brought about the Anthropocene. The authors of the current volume reflect
this, with the exception of Simonelli, who provides a brief discussion of the
natural sciences definition(s). The natural sciences suggest nine events
which could be empirically argued to be the starting point of the
Anthropocene: (1) the extinction of megafauna; (2) the origin of farming;
(3) extensive farming; (4) rice production; (5) anthropogenic soils; (6)
New/Old World collision; (7) the Industrial Revolution; (8) nuclear
weapon detonation; and (9) persistent industrial chemicals (Lewis and
Maslin, 2015). Each represents a major event in human history and pre-
history and made their impact on stratigraphic records. The first five took
place well before modernity, from 50,000 to 500 years in the past. Lewis
and Maslin argue that only two events provide clearly global synchronous geo-
logical markers on an annual or decadal scale: one is a dip in CO2 (the Orbis
spike) around 1610 and the other the 1946 bomb spike (ibid.). The Orbis spike
implies that colonialism, global trade and coal brought about the Anthropocene
(ibid.). Each of these is different but interconnected. The rise of the imperial
powers brought about global trade and the push for efficiency in this (for the
sake of competition) is what has brought the Anthropocene. However, choosing
the bomb spike tells a story of an elite-driven technological development that
threatens planet-wide destruction. The long-term advance of technology
deployed to kill people, from spears to nuclear weapons, highlights the more
general problem of progress (ibid.). This tells a more sinister story of the
Anthropocene but is no less a story of the insatiable drive of humans to control
each other at the expense of all else.
In relation to justice and law, does the exact moment of this precipice
matter? Each of these moments has a corresponding governance structure; for
Cutzen’s description and for the Orbis spike, it was imperial law, for the bomb
spike, it was the modern democratic era, but just before the institutionalisa-
tion of human rights laws, and even the extinction of the megafauna would
have happened under customary law. None of these systems had yet perceived
or conceived of the impact that humans would have on Earth systems and
would treat their domains as static. It wasn’t until after the Second World
War and after seeing its full impact that human rights and the international
cooperation which ensured them were taken seriously. A systems law per-
spective has been lacking in each precipice moment because no group of
globally powerful humans has never seen themselves as a part of the world
they inhabit. The laws of the imperial age were to keep power concentrated in
each nation’s sovereign leadership, usually a monarch. From then until the
nuclear age, states functioned in competition with one another for land,
dominance and control. The system their laws catered to was based on how
they constructed their presence through international anarchy; fighting each
other’s sovereignty through property and territorial rights demonstrated that
their own existence depended on mutual recognition (Wendt, 1992). The drive
20 T. Cadman, M. Hurlbert and A.C. Simonelli
to secure one’s state was to the detriment of others. It has only been recently,
through the impending changes fuelled by global warming, that some
countries have been willing to rethink their role and responsibility towards
one another. In this sense, the precipice bringing about Earth systems
thinking has been the modern realisation that the Anthropocene exists due
to climate change.

Governance, government, and policy

Governance is often mistaken for government and sometimes policy. Gov-
ernance is often described broadly as the traditions and institutions by
which authority in a country is exercised (Kaufmann et al., 1999). It refers
not only to a national government, but a complex set of structures and
processes, both public and private, while more popular writers tend to use
it synonymously with government (Weiss, 2000). Sometimes it is seen as a
value-neutral term, referring only to the interactions between individuals
or organisations within institutions, or institutional complexes (Breakey et
al., 2016). For the purposes of this book, governance is often used in a
couple of different ways. First, it is woven throughout the chapters in a
loose manner to mean government, the institutions which uphold it, and
the process by which governing is accomplished. This is also inclusive of
policy, which is a tool of agents to make change to what is being gov-
erned. For further clarification, climate governance refers to the apparatus
by which nations come together and the varying representatives that have
a voice in international negotiations. These are intergovernmental organi-
sations and partnerships across varying spatial locales and scales of action.
International agreements in this realm have to be enacted, however, at the
national level. While some policies may be international in nature, the
concept of national sovereignty still guides this process. Thus, institutions
need to incorporate international policy through the government which is
in power at the present moment of the agreement (or shortly thereafter).
Government here also has to be thought of as twofold: temporal (as in the
particular government in office) and in its institutions. Policies are also
simply proposals until they are enacted. Who governs and for whom are
what makes the difference in general, and temporally. ESG and ESL both
tend to be discussed at the international level even though some of the
authors of this volume, such as Lopez Porras, posit these through a
national lens. Finding ways to integrate an Earth systems perspective into
law has to happen at the national level and below, which means using the
policy arm of governance to influence government to change what is being
governed. Magalhães’ discussion, in Chapter 14, of being unrealistic to be
realistic fits this situation; for ESL to be integrated into current law and
applied, the current governance systems have to be completely re-envi-
sioned. This also means being specific about which parts, under the
umbrella of governance, need changing.
 Dimensions and definitions in ESL 21
ESG v. ESL
There is a particular tension between ESG and ESL. Laws are a function of
governance, as one arm of a larger governing apparatus. Governance, as
defined above, is much broader. The collective set of people and institutions
compromising governance need to be able to count on collective norms to
move individual sub-units. Norms are an important tool of governance;
changes in principles and norms are changes in a regime itself and this affects
behaviour and outcomes (Krasner, 1982). If differing regimes and their sub-
units are made up of people whose conduct is driven by social norms, then it
is through the diffusion of these domestically, in turn, that will affect how
nations deal with each other in the international realm. Within a domestic
setting, making successful law and policy requires an understanding of the
pervasive influence of social norms of behaviour (Finnemore and Sikkink,
1998). Successful international cooperation comes from the same processes
but needs to be accompanied by a parallel set of values at the domestic level.
The authors in this volume suggest several ways in which multi-level policy
can be amended to incorporate system values; however, it is important to
remember that law is unenforceable at the international level. For treaties to
stand even after countries sign them, the agreement needs to be incorporated
back at the state level. That state sovereignty still guides international trans-
actions means that governance systems need to have multi-level shared norms.
However, making change to counter the current power structures holding up
the global fossil fuel economy takes a major shift in thinking. From a con-
structivist perspective, the international structure is determined by the interna-
tional distribution of ideas. These shared ideas, expectations, and beliefs about
appropriate behaviour are what give the world structure, order, and stability
(ibid.). In the current volume, Hurlbert explains this in Chapter 6 through con-
structivist law scholarship. The view is that the law is alive and that it connects
society. It is an observable manifestation of humanity’s collective consciousness
and human decision-making, not merely applied legal rules. This interpretation
reinforces the value of norm diffusion and the tension and connection between
ESG and law. For human collective consciousness to be broadly communal
enough to change the decision-making that makes the laws, norm diffusion
throughout the rest of any and all governance systems is paramount. This is
especially important as state sovereignty has been on the rise again with the
devolution of UN power.

Environmental justice versus climate justice

Environmental justice is used quite often in this volume and while it can be
inclusive of climate justice, it can also refer to very different subjects of injustice.
Environmental justice has traditionally been about a focus on the environment
and saving the Earth from pollution. This has been about protectionary laws
seeking to mediate harm done to ecosystems, to stop over-fishing/hunting etc.,
22 T. Cadman, M. Hurlbert and A.C. Simonelli
and creating preserves. There is also a social justice element, pushing for the
cessation of using the living areas of vulnerable populations as a dumping
ground for externalities. Because climate change is an outcome process due to
the over-pollution of fossil fuel burning, it does fall under environmental
justice frames. However, climate justice is about more than ecosystems, its
focus is more often social. This can be anti-social systems (such as a push to
change the modern dependency on the fossil fuel economy) or people-centric
(for example, seeking new outcomes for vulnerable peoples living in the places of
degradation, such as climate displacees). The implications for ESL are quite
contentious. Traditional legal remedies tend to be punitive; in the case of envir-
onmental justice, these are often cash-based and levied against companies that
are polluting certain areas. The result is not always justice. If a company is levied
a fine which it pays for a clean-up, the company itself doesn’t do its own dirty
work by managing the efforts itself. They also integrate the penalty into its price
of business so that the pain of the punitive damage is simply paid forward to
future customers. Similarly, even damages paid to litigants whose health and
well-being have been damaged by pollution are also paid in cash, not always in a
clean-up effort. Systems law poses a real challenge here as the question becomes,
what does a system do with cash? What kind of remediation is appropriate for a
system? Does this change how liability is conceptualised? Can direct reparations
help a system? If norm diffusion will eventually bring about new ways of doing
governance and law, then it is critical to the enforcement of new systems of
environmental and climate justice. The remediation necessary to restore, rebuild
and remake systems cannot be cash. Cash is used to punish a polluter, on its
own, cash doesn’t make whole an endangered species, remediate sea level rises,
or un-pollute an ecosystem. These things take policy, programmes and action.
Environmental and climate justice under ESL needs to be more holistic.

Agency and actors

Agency and actors are still sticky concepts when ESL is seeking to incorpo-
rate non-humans. One of the reasons that the legal discussion of punitive
damages against the backdrop of Earth systems is awkward is because the
only actors with any standing are humans. Governance and law are both
currently arranged around the perspective of humanity; humanity governs
society and individual interactions. But is this reasonable as humankind
stands on the precipice of the Anthropocene? Who speaks for the trees? Other
than The Lorax (Dr. Seuss, 1971), it has been indigenous populations and
other traditional land protectors who are rarely listened to – whether real or
fictional activists. Current legal systems protect the rights of individuals,
companies, and governments; less so ecosystems, waterways, and those who
are less apt to exploit them. Even those who have standing in the law hire
agents to represent them, this is the role of lawyers. Being able to speak for
oneself in a legal setting is still customarily moderated by an outside arbiter.
With ESL, agency refers to non-humans and systems as a whole. The authors
 Dimensions and definitions in ESL 23
of this book wrestle with this as it is still a difficult concept to untangle. Is
systems agency akin to a class action suit? Such and such forest against X
logging company? If the system is an agent or the subject of legal agency, who
pays for their representation? Is a system singular or a matryoshka doll of
smaller sub-units? Is this singular or aggregate? Is nature a singular plaintiff
or many actors? How is it that this is disaggregated? The authors in this
volume begin to offer what has already been done in this area. In Chapter 6,
Hurlbert discusses the granting of legal personhood to the Te Awa Tupua in
New Zealand, an area of physical and metaphysical elements compromising
the Whanganui River from the mountains to the sea. This is legalising a
system with rights, but still through the anthropomorphic way in which
humans view their environment, though personhood.
Systems actors are also different than human actors. Humans may act
singly or in a group but have the element of cognition and reflection. Natural
systems react rather than act. These are feedback mechanisms and can either
lead to a new homeostasis or a spiralling effect. A runaway system can only
be stopped through outside action, such as a process of balancing (Litfin,
2005). Natural systems act to create a new stasis, regardless of how this
impacts those using them, such as plants, animals and humans. The feedback
loop for the Anthropocene is that of humans acting upon nature, and Earth’s
systems reacting. There is no thought as to how this impacts civilisation.
Earth systems already act on their own. The question in need of an answer is
whether the agency humanity seeks to bestow upon them is for their protec-
tion or for its own: do Earth systems need an agent to represent them, or is
this really to the benefit of humanity’s own survival? Considering the long
historical record of global environmental change, expanding the conceptions
of law to systems thinking is for the self-perpetuation of the human species.
This means re-evaluating humanity’s over-reach of its own agency over and
above all else to recognise it as a part of the Earth system instead.

Silos and signposts

The path forward for ESL is bright, but still faces challenges. ESL is still in
development; it remains a framework for critical and analytical theorising,
but still has a long way to go before it is a viable alternative to existing law. In
many ways the fields that ESL builds on are siloed. Governance and law
barely speak across genres; legal scholars tend to analyse case doctrine and its
application while governance scholars focus on intent, outcomes, players and
power structures. The law is often discussed as separate from its institutions
and this is a challenge to integrating the Anthropocene into ESL. This
necessitates not only a reconsideration of the subject in relation to law, but
also reconsidering how power is negotiated. Earth systems are a plural
standpoint for law and consider several interconnected policy spaces which
are also territorial. Development, public health, climate change – these each
impact law, have differing governance structures (within and among nations
24 T. Cadman, M. Hurlbert and A.C. Simonelli
as well as intergovernmentally), and separate and independent research agendas.
Even in this volume, it is acknowledged that the analytical, normative and
transformative dimensions of ESL can also serve as unnecessary silos. Baber’s
Chapter 3 was decidedly placed under the analytical dimension even though its
evaluation of opportunity structures for civil society interventions into legal
regimes and practices could also fall under transformative. The same goes for
Circovik; her Chapter 11 discussing the evaluative utility of cosmolegality is
most definitely transformative, but her particular take on it is also analytical.
The challenge for ESL in stepping over the precipice of the Anthropocene is not
only to reconsider legal realities but also to advocate for full interconnected
cooperation among contributing fields; this includes linkages within and across
its own discipline as well.
While collective cooperation means breaking down many disciplinary
barriers, the authors of this book have provided some paths forward; maybe
not a paved highway (the ultimate metaphor for the Anthropocene), but
they have provided some signposts to follow (Table 2.1).
Beginning with ESL’s analytical dimensions, there seems to be agreement
that ESL exists and that it goes beyond conventional legal theories. In so far
as it addresses the Anthropocene, the authors here argue that it is better
suited to do so than traditional law and they describe several places where an
overlap can exist: the expansion of rights and norms, environmental law and
international relations and the inclusion of Earth system science. Baber re-
envisions the relationship between community, activist and academic, arguing
that environmental rights advocates will gain capacity, credibility and institu-
tional durability if they integrate with civil society organisations and uni-
versities. Connectivity will advance environmental rights norms through
alternative opportunity structures. Angstadt recommends that pursuing theo-
retical precision, advocating for diverse engagement, and seeking practitioner
input and practice relevance can help environmental law and international
relations to overlap with ESG prerogatives. Fernández Fernández lauds
ESG’s multi-scalar component as it can link with both Earth system science
and system governance. However, existing law plays a precarious role in
relation to ESG and the Anthropocene because it is still too human actor-
focused; human actors in the Anthropocene are causing cascading effects to
systems in which outcomes are uncertain and resilient bounce-back is not
guaranteed. Hurlbert exposes this gap, explaining that the challenge for legal
scholars is to document, explore, imagine and advance Earth system law’s
transformations. Noting the drawbacks in existing law is not the same as
closing the chasm. Due to this focus, current law is not extremely adaptive, or
rather, with norm diffusion and expansion it can be, but this takes time. The
authors of this volume have suggested that the historic understandings of the
commons, non-human agency, non-human migration, and eco-centrism need
to be addressed, but this volume is not comprehensive enough to address
every legal challenge. The authors argue that it is necessary to stretch existing
law, but it is also clear that new law will still be necessary. Lopez Porras’
 Dimensions and definitions in ESL 25
Table 2.1 The analytical, normative and transformative dimensions of ESL and asso-
ciated questions with proposed answers
Analytical dimensions of ESL
What is understood by  Does ESL exist? Can it be created from existing prin-
ESL? ciples of law and legal developments? Does ESL go
beyond conventional legal theories to address the
Anthropocene and how?
Yes, it pushes the boundaries of conventional legal theory
and it is better suited to address the Anthropocene than
traditional law.
 What role do law and legal institutions play in Earth
system governance in the Anthropocene?
Law and institutions need to be broadened to include the
realms of community, activism and academics.
 What are the cross-overs between current law and
concepts enshrined in the Anthropocene?
Overlap between current law and concepts can be found
through the expansion of rights and norms, environmental
law and international relations, and the inclusion of Earth
system science.

How can the fundamen-  How are conflicts between adaptiveness and the rule
tally static, and anthro- of law negotiated, framed and resolved? Which his-
pocentric nature of law toric rules of law need to be addressed? Which need to
and lawyers be dealt remain?
with?
Current law is not particularly adaptive but can be
improved through norm diffusion and expansion.
Historic understandings of the commons, non-human
agency, non-human migration, and ecocentrism need to be
addressed.
Can we stretch existing law or do we need to create new
law?
It is necessary to stretch existing law but new law will also
be essential.

How can the memes of  How is ESL in society to be envisioned? What is the
ESL be translated to a socio-legal-Earth relation? What about local
wider audience? (common) law and global law? Or nation-state law,
and soft international law?
An ESL society is envisioned through authors’ use of sub-
disciplines; a next step would be a full reimagining of the
socio-legal-Earth relation.
Lopez Porras provides specific suggestions through a case
study, Circovik integrates Indigenous thinking and cosmo-
legal space, and Simonelli suggests how to overhaul inter-
governmental decision-making.
26 T. Cadman, M. Hurlbert and A.C. Simonelli
Analytical dimensions of ESL
Which theoretical and  Is a jurisprudential analysis of ESL enough, or is a
methodological frame- post-structural analysis of the experience of law
works should inform required, i.e., a body of living law – and what are the
ESL? narratives or discourses of law in the context of ESL?
There is a gap between existing legal analysis and the
experience of law; Hurlbert explains this challenge as the
ability to extend them to document, explore, imagine and
advance Earth system laws’ transformations.
 Can ESL be analysed on the basis of conflict, power,
hegemony and social class, or must these concepts be
refined or expanded?
ESL can be analysed through imagining how power, hege-
mony and social class would impact the nation-state and
international realm. Refining these is important in making
a practical systemic overhaul.

Normative dimensions of ESL

Addressing inequality  Will the rule of law really solve everything?
How can ESL overcome
inequalities, pervasive The authors in this volume challenge the idea that the rule
hierarchies among spe- of law can solve new problems, arguing that it is ill-equip-
cies, geographical ped to manage systems and non-human jurisdictions.
regions, countries, and  What international norms and institutions are parts of
across generations? ESL?
The authors also converge on several norms which are part
of ESL, such as fairness and equity. Bohman finds that
stable, democratic and legitimate institutions which pro-
mote, political, and economic equality would be included.
 What is the normative view of non-human life? How
can this be protected in law, for example, are there
retirement rights for cows?
The authors suggest that rights for non-human life and
systems are important but have left room for
operationalisation.
 Do human rights exist in conflict with non-human
life?
There is potential for conflict between human and non-
human rights; this deserves further attention.
 Is there a need for an interspecies ombudsperson?
Part of re-envisioning the Anthropocene through a norma-
tive dimension is to develop what an interspecies ombud-
sperson role would look like; there is consideration of
unequal distribution of agency and non-property
personhood.
 Dimensions and definitions in ESL 27
Analytical dimensions of ESL
Ensuring sustainability  What is the role of standards in ESL, and should they
How can ESL ensure a be voluntary or mandatory?
sustainable way of
exploiting resources,  Should there be an international Earth system court?
directing investments, The volume does not address the application of ESL stan-
and orienting technologi- dards or the conceptions of an international Earth system
cal development and court.
institutional change?
 How does jurisprudence apply to sustainability as a
legal norm?
State sovereignty provides a challenge to the equal appli-
cation of sustainability.
 Could/should soft contested eco-norms become hard?
The authors question how to move forward without state-
enforcement mechanisms of soft eco-norms.

Transformative dimensions of ESL

What are the transforma-  How can the transformations under ESL benefit from
tive pathways, that ESL concepts and experiences stemming from Earth
should develop? system governance?
To what extent could
adaptive legal systems The transformations under ESL can benefit from ESG
serve as a transformative because it provides both options for implementation as well
concept for ESL in the as operational barriers.
Anthropocene?  What are cross-cutting principles? Can they have uni-
versal application? Are they in silos, or can they be
global?
The conceptualisation of the commons, non-human agency
and cosmolegality are inherently cross-cutting. Their
application is contingent on our current dependence on eco-
centrism and state-centrism.
 Can the rights of eco-centrism evolve? What has
changed in eco-constitutionalism?
Eco-centrism can evolve if ESL is accepted into transfor-
mational legal systems.
 What are the problems and path dependencies of
state-centrism? Where is the will to change? Can there
be non-state internationalism? Why are existing
mechanisms not working?
The authors in this volume see existing mechanisms’ ana-
chronistic dependence on human elevation above all as a
problem, such separation begets state-centrism. Non-state
internationalism is also challenged by the elevation of some
humans above others, such as neo-colonial hierarchies.
28 T. Cadman, M. Hurlbert and A.C. Simonelli
Chapter 12 on integrating Mexican water law into an ESG perspective
demonstrates this; from an anthropogenic and eco-centric viewpoint, current
water law is not distributive (for ecosystems) or representational (of the needs
of humans and non-humans). The volume stops short of providing a com-
prehensive vision of an ESL society but does open the door to what it may
look like in several sectors. Many of the authors here offer some sort of vision
of the necessary changes in their own subdisciplines. Lopez Porras is the most
specific with his case study, but Circovik’s integration of Indigenous thinking
and cosmolegal space and governance is of note, as are Simonelli’s sugges-
tions for how to overhaul intergovernmental decision-making. A next step
from here would be a full reimagining of the socio-legal Earth relations.
While a critique of current law and governance structures is helpful, imagin-
ing how this would impact the nation-state and the international realm, as
well as power, hegemony and social class, would make obvious the practical
reality of a systemic overhaul.
Within the normative dimensions, the authors of this volume challenge the
idea that the rule of law can solve new problems as it is ill-equipped to
manage systems and non-human jurisdictions. They also converge on several
norms which are part of ESL but have been less specific on institutions; fair-
ness and equity have easily come to the forefront. Bohman concludes that
stable, democratic and legitimate institutions; political and economic equality;
and equal access to or distribution of resources are compatible with these
pivotal norms. However, ensuring their integration is less obvious. The
authors suggest that rights for non-human life and systems are a necessity but
have left room for future work to be done in terms of operationalising this.
This may look like retirement rights for working cows or migration con-
sideration for plants/animals which were previously seen as invasive species or
are important to humans needing to be relocated. In this way, there may be
sincere conflict between human and non-human rights, something that
deserves attention. The authors also suggest a revisionist view of non-human
agency, some offering or discussing legal representation. This can be seen in
Bohman’s discussion of the unequal distribution of agency and Warner’s telling
of the Whanganui decision which created a new class of personhood which is
simultaneously both human and non-human, while also being non-property-
based. Part of re-envisioning the Anthropocene through a normative ESL lens
is to develop what an interspecies ombudsperson role would look like. In that
same vein, the authors here also question how to move forward without state-
enforcement mechanisms of soft eco-norms. Previous ESG researchers have
proposed more trans-governmental alliances, but state sovereignty is already a
challenge to international jurisprudence. However, normative scholarship
emphasising the ethical necessity of cooperation between and among nations in
order to be successful in the Anthropocene has a clear space forward. Simo-
nelli’s chapter begins this with recommendations of how to rethink multilateral
and scalar spaces for the practical enforcement of intergovernmental organisa-
tions’ (IGO) policy. Where normative scholarship falls short is contending with
 Dimensions and definitions in ESL 29
the false dichotomy of human rights when they may conflict with non-human
life, if ESL integration should be mandated, and any discussion of an interna-
tional Earth system court.
In response to the transformative dimensions, the signposts need a little
more extrapolation. The transformations under ESL can benefit from ESG
and other interpretations of governance as they provide both options for
implementation as well as demonstrating the operational barriers. There is far
more work to do in this area to be comprehensive and explicit. It is not yet
clear which transformative principles can rise above legal and disciplinary
silos. The conceptualisation of the commons, non-human agency, and cos-
molegality are inherently cross-cutting. Their eventual application is con-
tingent on the current dependence on eco-centrism embedded in state-
centrism. Bleby builds on this with her discussion of eco-centrism in the
Anthropocene being an important quality of ESL which can promote trans-
formational legal systems. Path dependency on old notions of neo-colonial
relationships dominating the natural world is how humanity arrived at this
precipice. The authors in this volume tend to see existing mechanisms’ ana-
chronistic dependence on human elevation above all as a problem, even more
so when some humans elevate themselves over others. Nyka reminds readers
that recognition of Indigenous people and their knowledge is imperative to
ESL’s integration and that revolutionary changes are required for the repla-
cement of some of the critical elements of the international legal system but
stops before explaining how this is fixed. There may be a normative element
wrapped in this dimension; can the current short-sighted view of eco-centrism
evolve? Can this be through non-state internationalism? This volume is still
scratching the surface of the Anthropocene but can lend itself to the future
direction of ESL and governance.

References
Biermann, F. 2014. The Anthropocene: A governance perspective. The Anthropocene
Review, 1, 57–61.
Breakey, H., Cadman, T. and Sampford, C. 2016. Governance values and institutional
integrity. In T. Cadman, R. Maguire and C. Sampford (eds), Governing the Climate
Change Regime. New York: Routledge.
Burch, S., Gupta, A., Inoue, C. Y., Kalfagianni, A., Persson, Å., Gerlak, A. K., Ishii,
A., Patterson, J., Pickering, J. and Scobie, M. 2019. New directions in Earth system
governance research. Earth System Governance, 1, 100006.
Dr. Seuss. 1971. The Lorax. New York: Random House.
Dryzek, J. S. 2016. Institutions for the Anthropocene: Governance in a changing earth
system. British Journal of Political Science, 46, 937–956.
Finnemore, M. and Sikkink, K. 1998. International norm dynamics and political
change. International Organization, 887–917.
Kaufmann, D., Kraay, A. and Zoido, P. 1999. Governance matters. World Bank Policy
Research Working Paper.
30 T. Cadman, M. Hurlbert and A.C. Simonelli
Krasner, S. D. 1982. Structural causes and regime consequences: Regimes as inter-
vening variables. International Organization, 36(2), 185–205.
Lewis, S. L. and Maslin, M. A. 2015. Defining the Anthropocene. Nature, 519, 171–180.
Litfin, K. 2005. Gaia theory: Intimations for global environmental politics. In P.
Dauvergne (ed.) Handbook of Environmental Politics. Cheltenham: Edward Elgar.
Weiss, T. G. 2000. Governance, good governance and global governance: Conceptual
and actual challenges. Third World Quarterly, 21, 795–814.
Wendt, A. 1992. Anarchy is what states make of it: The social construction of power
politics. International Organization, 46, 391–425.
Part II
The analytical dimensions of
Earth system law

This Part examines the analytical frameworks that might be applied to

both understanding, and applying ESL in diverse national, geo-physical
and philosophical contexts.

DOI: 10.4324/9781003198437-4
3 Earth system law in the age of
humanity
Walter F. Baber

Introduction
Much ink has been spilt on the concept of the Anthropocene; as of December
5, 2019, a keyword search of Academic Search Complete returns 5,474 cita-
tions since 2010. At its core, this is the idea that the human and non-human
elements of the Earth system have become so completely intertwined that no
change can occur in one without impact on the other (Young et al., 2017).
Insofar as this is true, it imposes a responsibility that humans have never
previously faced – that of determining both their own fate and the fate of all
living things. However, with great responsibility sometimes comes great
opportunity.
If every environmental challenge is now also a human challenge, it may be
that human interests and the interests of the non-human environment are
gradually converging (Baber and Bartlett, 2015). If so, then the protection of
human interests may afford new opportunities to protect the environment – if
humans are astute enough to recognise those opportunities and take advan-
tage of them. Moreover, it stands to reason that, as this convergence con-
tinues, it should be most readily identifiable in the areas of humanity’s most
fundamental and urgent needs – that is to say, in areas that are of central
concern to defenders of human rights (Baber and Bartlett, 2020). What is
needed, then, is an analytical framework that will allow recognition of the
opportunities that this convergence may offer and help map the contours of
those opportunities so that they can be successfully exploited.
This chapter adapts the existing research on legal opportunity structures
(LOS) for cross-cultural use in identifying environmental rights opportunity
structures (EROS). An EROS will be described as a configuration of norma-
tive, socio-political and institutional circumstances that are supportive of civil
society interventions in environmental decision-making through either litigation
or participation in legislative/regulatory processes (see also Bohman’s Chapter 9
in this volume).
While these configurations will vary in each nation state, there is already
evidence to support the assumption that these structures are likely to vary
within recognisable patterns. The rising level of interest in potential synergies

DOI: 10.4324/9781003198437-5
34 Walter F. Baber
between the promotion of human rights and pursuit of the United Nations
Sustainable Development Goals (SDGs) is one such pattern (Knox, 2015).
But perhaps the most dramatic example of EROS at work is the wave of
environmental constitutionalism (EC) that has resulted in the entrenchment
of the right to a clean (or healthy or sustainable) environment in most of the
world’s national constitutions (Boyd, 2012). This chapter will examine the
rising tide of EC within the context of an EROS framework.
If a more systematic and comprehensive analytical framework can be devel-
oped to help explain instances of EC, it may eventually serve as a guide for those
who wish to actually transform EROS patterns through action-oriented research
and research-driven advocacy at the national level. However, at this early stage,
developing the ability to document causal chains that explain environmental
human rights outcomes within Earth system law is paramount. This chapter is
intended to contribute to that development. For illustrative purposes, a brief
constitutional history of contemporary Uganda is provided. The overall objec-
tive is to demonstrate the application of the EROS concept and to show its utility
in organising thinking about environmental rights outcomes.

From LOS to EROS

The concept of legal opportunity and its development into the analytical
framework of legal opportunity structures first appeared in the study of law
and its impact on the development of social movements (Hilson, 2002). Its
original elements included access to the courts (which may be affected in
particular by the law on standing or locus standi); various litigation costs,
rules; legal stock or the set of available precedents on which to predicate a
case; and judicial receptiveness to the arguments that legal intervention
requires. The concept’s initial function was to distinguish, analytically,
between legal factors and political considerations (understood as political
opportunity). The concept soon appeared in both environmental (Vanhala,
2012) and human rights (Suh, 2014) research as well as the study of other
areas of social movement activism.
As the LOS concept diffused from specifically legal to more broadly social
scientific research, its original focus on characteristics of governmental institu-
tions (primarily judicial) broadened to include considerations of rhetorical
framing, a sense of grievance and the ability to mobilise resources
(Andersen, 2009). With the addition of these sociological variables, the
legal opportunity structure became an even more useful framework for
explaining decisions of social movement organisations (SMO) to engage in
litigation as a complementary strategy (or tactical alternative) to lobbying.
However, even this expanded version of LOS is not sufficient to meet the
present challenge. The values, perspectives and priorities of those who govern
and those who lead SMOs (even if taken in combination) are not coextensive
with the normative and social commitments that animate an entire nation.
For some purposes, perhaps, that gap might safely be ignored. However,
 Earth system law in the age of humanity 35
neither human rights advocacy nor environmental protection afford that
option because both endeavours are normatively fraught, and unavoidably so.
It might be thought unproblematic – even unremarkable – to observe that
human rights are necessarily normative. However, it will be helpful to be
more concrete about the matter. From a normative perspective, human
rights can usefully be conceived of as summations of normal states of mind
that amount to a multi-faceted form of altruism that is created and nor-
malised through cultural forms of socialisation (Gregg, 2016). Like other
kinds of law, rights are anchored in (but not coextensive with) some form or
another of social consensus respecting the legitimate exercise of authority.
Whether authority is legitimated on rational, traditional or charismatic
grounds, law represents a belief in the legitimacy of that authority and the
coercive forms it often takes (Weber, 1978). The balance of those forms of
legitimation and the precise contours of the legal order they support is, of
course, culturally specific.
As elements of those legal orders, rights operate as a form of final voca-
bulary. They are (among other things) rhetorical trump cards that are played
to abbreviate the justificatory regression that highly charged political disputes
often seem to impose (Baber and Bartlett, 2019). However, as legitimate (and
sometimes necessary) as that use of rights talk can be, it is important to
remember that it involves the thinning down (through abstraction) of what
was originally a thick form of local normativity. This makes notions of rights
more portable – easier to carry across borders, international and otherwise.
The danger, however, is that the normative content left behind is forgotten
and the norms of communities of belief which scholars explore are misread. If
that happens, human rights talk risks losing the capacity for self-critique that is
central to rights that are acknowledged to be ‘social constructions initially valid
only locally’ (Gregg, 2011, p. 74). And the risk is not merely that other nor-
mative communities will be similarly misunderstood. It is, rather, the fact will
be lost that all normative communities subscribe to locally valid norms but this
‘does not preclude the possibility of creating shared standards of argument and
judgment’ or even ‘plausible criticism across political communities or cultures’
(ibid., p. 75).
The other substantive field of interest, environmental protection, may be
less obviously normative than human rights advocacy. However, even so
basic an environmental concept as sustainability can fairly be viewed as a
grundnorm – based on ‘the proposition that respect for planetary boundaries
defining the safe operating space for humanity with respect to the Earth
system constitutes a moral imperative in the Kantian sense’ (Young et al.,
2017, pp. 67–8). In fact, a core project for the environmental movement in
the decades ahead is to rescue sustainability from its fate as an empty sig-
nifier – rendered devoid of any normative meaning at all in the hands of a
global technocratic elite (Baber and Bartlett, 2019). Against this challenging
backdrop, what concrete obstacles does the normativity of environmental
protection pose?
36 Walter F. Baber
To answer this question, the singularly important environmental challenge of
these times – the case of global warming should be examined. It has been
argued that a long decline is coming for human civilisation as a consequence of
the limits to growth, progress and development that will be imposed by climate
change. There is destined to be a flood of failing states and displaced persons, a
crash of political and economic institutions and the loss of vital social services
across the planet. Only a new eco-philosophical movement of missionary zeal
stands any chance of eventually reversing this seemingly inevitable decline
(Assadourian, 2016). And even if this normative militancy does not presage a
return to fashion of deep ecology, which seems to have passed its sell-by date
(Booth, 2015), the normative challenges posed by climate change remain.
The journey from the 1992 Framework Convention on Climate Change
(UNFCCC) to the 2015 Paris Agreement was unsettling for some, profoundly
discouraging for others. It has provided an uncomfortable and largely unne-
cessary reminder of the many limitations of international law. Chief among
these is its inability to generate new normative content internally (as many
national legal systems do) by adjudicating a large number of concrete disputes
under a legal standard such as stare decisis. And, in the absence of an effec-
tive legislature capable of codifying the shared values of a community of
beliefs, this leaves international law in the unenviable position of pronouncing
little more than memoranda of understanding that parties are free to ignore
or renounce without material consequences (Baber and Bartlett, 2011).
At this point, a sense of futility suggests to some that a posture of quietism
should be adopted – letting go of the pretence that fate is within humanity’s
hands and embracing a passivity of the soul is the best moral (often religious)
option. However, a different course is open if the trajectories of human rights
advocacy and environmental protection are oriented towards each other.
Recasting the problem of climate change as an issue of climate justice opens
new avenues for activism to resist resignation. The open texture of the climate
justice discourse has allowed it to gain a place on the agendas of professional
associations (Travers et al., 2019), private corporations (Foerster, 2019) and
religious organisations alike (Fretheim, 2018). And, beyond this exhortative/
educative function, the strong normative focus of climate justice discourses
has also allowed them to improve the understanding of climate politics in
highly practical ways.
Research on climate justice has revealed that economic inequality reduces
the political space for addressing climate change by producing fear-based
forms of populism. However, the same research suggests that when the safety,
social status and livelihoods of all members of a society are assured, it is
possible to craft voluntary and democratically sustainable measures to
address climate change. This reinforces the more general argument that socio-
environmental and climate justice measures are necessary preconditions for
participatory and responsible Earth system governance that will both signal
and assist the development of equitable political institutions. Even degrowth
movements, when they explicitly prioritise equity, can help to focus activism
 Earth system law in the age of humanity 37
for climate justice and sustainable livelihoods (Perkins, 2019). This is
especially important in light of other climate justice research that shows
climate action in the form of restrictions on fossil fuels can have perversely
inequitable side effects where intersecting inequalities are coded into the
politics of fossil fuel cycles (Brown and Spiegel, 2019).
Moreover, climate justice discourses are able to sustain historical responsi-
bility and ability to pay narratives that are essential to reconciling greater eco-
nomic development for the Global South with reduced environmental
degradation (Holland, 2016). Many agree that developed states must bear a
greater burden in addressing climate change for these two reasons but disagree
about their relative importance. In light of this normative divergence, and the
fact that some historical emissions of greenhouse gases predate legitimate insti-
tutions of global climate governance, it is worthwhile paying careful attention
not only to the what and how of climate governance, but also to the normative
why as well (Bou-Habib, 2019). These considerations are particularly important
as what may be the most taxing climate-related debate – the daunting but ines-
capable challenge of crafting some form of reparative justice for climate refugees
who are ill-served by existing refugee regimes (Buxton, 2019).
Having offered a justification for adding cultural norms as a third major
component (or category of components) in the EROS framework, that frame-
work can be imagined as a triangle of interconnected explanatory factors
intended to account for specific environmental rights outcomes (Gellers and
Jeffords, 2015). Social scientists of a certain age may think that they hear
echoes of Robert Michels’ iron law (or triangle) of oligarchy (Michels, 1966) in
this description. They would not be wrong. The difference between Michels’
interest groups and social movement organisations (SMOs) at one corner of the
triangle is obviously minor. And the distinction between bureaucracies and
courts at another corner is reduced significantly if one recognises that reg-
ulatory bureaucrats adjudicate as many (or more) environmental disputes as
courts in many countries and are likely to continue doing so.
The remaining distinction, between norms and Michels’ legislation is (ideally)
a matter merely of timing. Optimistically, results of the legislative process are
codifications of social norms that reveal themselves through non-legislative pol-
itics. Courts or regulators are presumably interpreting the legislature’s norm-
pronouncing efforts (or anticipating them where the legislature has yet to act but
decisions are required). But, setting that rosy fiction to one side, there is an even
stronger rationale for the deviation from Michels’ analytical framework.
Michels’ study analysed the power structures of organisations such as political
parties and trade unions. His main argument was that all organisations, even
those that are theoretically the most egalitarian and committed to democracy
are, in fact oligarchical.
In contrast to Michels, the objective of this chapter is to describe the field
of forces within which environmental rights advocates make strategic deci-
sions and to explain why their efforts either succeed or fail. Moreover, it is the
intent of this analytical framework to be as cross-culturally useful as possible
38 Walter F. Baber
and to make no assumptions about the efficacy of the legislative branch –
linking SMO and institutional actions both in a more or less direct way to
their estimations of the norms of the polity rather than legislative politics.
In this sense, the analytical ground being explored is not that of environmental
politics or human rights advocacy per se. Rather, the context is comparative law.
More even than Michels’ iron triangle, the EROS triangle resembles Werner
Menski’s model of legal pluralism (Menski, 2006). Menski’s analytical objectives
also differ somewhat from the current chapter. Menski presents a critical
rethinking of the study of comparative law and legal theory in a globalising
world. He highlights the inadequacies of current Western theoretical approaches
in comparative law, international law, legal theory and jurisprudence, arguing
that they are too parochial and Eurocentric to meet today’s global challenges.
Obviously, the present discussion is more tightly focused. However, it
shares Menski’s intention to carve out a more modern and less problematic
role for what had been the natural law tradition and to place it in a plausible
relationship with institutional positivism, on the one hand, and socio-legal
approaches to law, on the other. The result here is a positioning of EROS
within a field of forces (norms, institutions and interests) that gives it a par-
ticular content in every unique legal order while conforming to a single
(admittedly pliable) conceptual shape.
So, to recap, at one point of the EROS triangle, the traditional institutional
elements of a legal opportunity structure exist – formal characteristics of a
political/legal order that render it more or less receptive to environmental
rights narratives. At a second point, the socio-political factors are located,
including concrete interests, considerations of framing, sense of grievance,
ability to mobilise resources, etc. And, at the third point, there are social
norms derived from religious, ethical and moral precepts shared widely within
a given culture.
Having described the basic EROS framework in the abstract, a discussion
of one of the most interesting and important topics in the general field of
environmental rights follows: environmental constitutionalism. The intention
is not to resolve the human rights questions involved in this topical area but,
rather, to use the EROS analytic to describe the structural context of those
issues and to suggest how the EROS construct can guide efforts to better
understand environmental rights. A broader question follows. What form of
Anthropos does the age of humanity require?

EROS and environmental constitutionalism

As discussed, the EROS is a logical extension of earlier legal opportunity struc-
tures with amendments that both sharpen its focus and improve its cultural port-
ability. It still remains, however, to demonstrate that this new conception actually
enhances the ability to understand environmental rights processes and outcomes.
For this purpose, it will be useful to examine an especially significant topic in the
general field of environmental rights: environmental constitutionalism.
 Earth system law in the age of humanity 39
Environmental constitutionalism
Environmental constitutionalism (EC) involves the entrenchment of environ-
mental rights in the constitution (or other fundamental law) of national or sub-
national governments. It is a challenge even to document how many of the
world’s national governments have adopted such provisions. However, David
Boyd (2012) provides what seems to be the most authoritative accounting. By
his reckoning, at least 147 of the United Nations’ 193 members have some
form of environmental rights provision in their constitutions.
Boyd’s research interest has not been to identify the reasons for this outcome
but, rather, to document how ubiquitous it is and determine how effective EC
provisions have been (and are likely to become). Important as that is, the pre-
sence or absence of EC provisions in particular legal orders is key because it
can be regarded as a consequence of the EROS of any given nation. Much
might be learned from a closer study of how these provisions are adopted,
including a clearer understanding of the unique strengths and weaknesses of
any given EROS. Information of that sort might prove invaluable both to aca-
demics and activists whose brief it is to more effectively explain and advance
human rights-friendly environmental outcomes.
However, in order to assess the validity of this approach, it is necessary to
describe the analytical process involved. What would a piece of EC research
using the EROS concept look like? How would it be carried out? What might
be learnt from it? With at least 147 research subjects to choose from (and over
ten thousand unique two-subject comparative combinations of them), know-
ing where to begin is a considerable puzzle. Happily, there are possibilities
that virtually suggest themselves.
One clear division of the nations is the character of their legal traditions.
Regardless of the precise parameters of classification used, it is obvious that
‘common law nations lag behind when it comes to recognising the right to a
healthy environment’ – as they do with the recognition of social, economic
and cultural rights generally (ibid., p. 288). In fact, only four (arguably)
common law countries have joined the majority of nations in adopting their
own EC provisions: Jamaica, Nepal, Uganda and Malawi. Rather than
trying to answer the larger question of why common law countries generally
lag behind, it is better to concentrate on the more manageable task of sug-
gesting why a small number of countries have managed to overcome the
common law handicap. What is it about the unique EROS characteristics of
these countries that causes them to deviate from the common law pattern
and what might be learnt from their success in this regard?
For the sake of efficiency (and brevity), this chapter will concentrate on one
of these four countries, using the others merely as points of comparison. For
this purpose, and largely for practical reasons, the focus is on the 1995
Ugandan Constitution. Uganda’s EC provision is one of the oldest of the four
and the nation’s political history has (unhappily) been the subject of more
scholarly research than have the other three exceptions to the common law
40 Walter F. Baber
pattern. For this reason, Uganda is used to demonstrate how the EROS
analytical structure can be applied, and the utility of doing so (rather than
comparing Uganda to its common law cohort).

The case of Uganda: a brief background

Like many countries with colonial histories, modern Uganda is an improvi-
sation. Even at its birth as an independent nation, Uganda was a close-run
thing. The drafting of Uganda’s independence order was completed only a
week before the scheduled independence date in 1962 (Meredith, 2011). And,
as late as 1964, British troops had to be called upon to deal with a Ugandan
army that mutinied over lack of pay and promotions (ibid.). Internal strife, it
seems, was in Uganda’s very DNA.
Prior to becoming a British Protectorate in 1894, Uganda was divided
among several ethnically defined but closely related kingdoms. Under colonial
domination, these differences hardened into a conflict between various groups
of northern Ugandans and the regionally dominant Kingdom of Buganda in
the south. British colonial governments controlled and exploited those ten-
sions successfully enough that at its independence there was considerable
optimism about Uganda’s future. Exports of coffee, cotton, and tea gave
Uganda the highest per capita GDP in East Africa (ibid.). When Uganda
became independent in 1962, a parliamentary constitution had already been
drafted which provided for a complex system of devolved powers intended to
mitigate the country’s regional divisions.
However, Uganda’s first Constitution survived only six years. In 1966, Prime
Minister Milton Obote replaced that document with another, described as tem-
porary. For a merely transitional document, however, it made some significant
changes. It restyled the leader of the parliamentary majority as the nation’s pre-
sident and it eliminated the special status in Uganda’s devolved system that had
been enjoyed by the ancient monarchy of Buganda (Morris, 1966). More omi-
nously, it also did away with Uganda’s High Court (Jorgensen, 1981).
Newly minted President Obote eventually proved as good as his word. By
September of 1967, Uganda had its third Constitution. Unsurprisingly, it
further strengthened the presidency at the expense of the legislature, resulting
in President Obote’s party becoming the only legal party in Uganda by 1969
(Uzoigwe, 1983). But the various elements of the Ugandan Constitution of
1967 pale into insignificance when compared to its one cardinal failing. It
allowed the rise to power of Idi Amin, who suspended part of it and ignored
the rest (Mukholi, 1995).
It is unfair to lay all the blame for the atrocities of Idi Amin on the Con-
stitution of 1967. However, in the course of the ascension and rule of Amin’s
successors, the document showed few conspicuous strengths. Thus, it was
unsurprising when (after a prolonged civil war) new president Yoweri Muse-
veni established the Ugandan Constitutional Commission in 1988. After a
long gestation period, the child of its labours was the Ugandan Constitution
 Earth system law in the age of humanity 41
of 1995 – the nation’s fourth foundational document and the one that finally
granted Ugandans the right to a healthy environment (Boyd, 2012).

Uganda: institutional elements

What can be concluded from this admittedly sparse constitutional history of
Uganda? Why is Uganda one of only four common law countries that has
entrenched the right to a healthy environment in its constitution? First, of
course, for a country to have four constitutions in just under 60 years seems
profligate – especially compared to its common law neighbour, Liberia, with
half as many constitutions in a history three times as long.
So, is rapid replacement a factor that contributes to environmental con-
stitutionalism among common law countries? Does it afford a country so
many opportunities to tweak its constitution that emerging legal concepts and
values are more easily assimilated into it? A comparison with common law
Nepal might lead to such a conclusion. Constitutional government in Nepal
dates from 1948. The current constitution, which has been in force since 2015,
is Nepal’s seventh such document. However, the environmental rights clause
entered the Nepalese constitutional order as an amendment to an existing
document rather than one of many features in an entirely new one. So, no
easy opportunity mechanism was in play. A more general hypothesis invol-
ving the presence of continual constitutional innovation might be a better
interpretation.
This continual innovation construction also makes sense of the potentially
contrasting common law case of Jamaica – a former colonial possession that
is still governed by the terms of its first constitution but has managed to
entrench environmental rights through constitutional amendment. Jamaican
independence was not characterised by the last-minute improvisations wit-
nessed in Uganda and elsewhere in Africa. It resulted from a slow process of
constitutional decolonisation through incremental changes in its legal institu-
tions as part of a broader British anti-communism strategy in the Caribbean
(Mawby, 2013). British intentions aside, this strategy may have formed a habit
of constitutional innovation within the Jamaican polity even before it was
capable of innovating on its own behalf.
Another feature of Uganda’s constitutional history is that of a series of
documents held hostage to politics of the very worst sort. At no point in its
history has Uganda had a government that could reasonably be regarded as
democratic. The current status quo is, arguably, as good a government as the
country has ever had – yet it is regarded by most observers as no better than
a hybrid regime (Tripp, 2010). This designation refers to governments which
regularly experience election fraud, preventing free and fair democracy. They
commonly apply pressure on political opponents and harass the media. They
have non-independent judiciaries, anaemic rule of law, and widespread cor-
ruption. They show more pronounced faults than flawed democracies in terms
of underdeveloped political culture, low levels of participation in politics, and
42 Walter F. Baber
poor functioning of governance (Economist Intelligence Unit, 2018). Here
traditional approaches to managing corruption are of considerable value in
tackling these problems (Ekhator, 2019).
However, hybrid regimes also face constraints that fully authoritarian
regimes do not (Levitsky and Way, 2010). They confront more serious, less
manageable internal opposition, often requiring that opponents be bought off
rather than simply repressed. Corruption is, therefore, more widespread
(though not necessarily greater in total) in Uganda than it might be if a small,
authoritarian group were able to appropriate all of the country’s resources.
This much might have been expected given the regional and ethnic differences
that have always divided the nation. Nevertheless, it spells trouble for any
regime that wants to avoid the authoritarian label and needs to maintain a
healthy cash flow in order to do it.
This is the primary dynamic that Tripp (2010) argues is at work in Uganda.
She argues the Ugandan regime must maintain an image of at least minimal
progressiveness for the international donor community. Adding an environ-
mental right to its constitution probably seemed a low-cost way of advancing
that goal, while asserting national jurisdiction over land use and economic
development issues into the bargain. This intention may also be inferred from
the fact that the right to a healthy environment occurs in the Constitution’s
Bill of Rights, whereas the clause regarding state responsibility for sustainable
development is found under the heading of National Objectives and Directive
Principles of state policy (Soyapi, 2019). If the intent of the Museveni gov-
ernment was to assert central authority over development decisions with
environmental consequences and ghettoise individual environmental rights,
while signalling progressive environmentalism to the international donor
community, this is the arrangement one might expect to see.
The other common law countries with EC clauses may have been in a
similar situation. Two of the three (Malawi and Nepal) are also classified as
hybrid regimes and the third (Jamaica) rises no higher than the category of
flawed democracy. However, the explanatory power of this donor-signalling
hypothesis is undermined somewhat by neighbouring Liberia. Liberia’s
democracy ranking gives it as much reason to pander to progressive interna-
tional organisations as Uganda, but it has not chosen environmental con-
stitutionalism as a method of doing so. However, rather than abandoning this
hypothesis, it is possible to flesh out the complex of other factors that might
be involved in constitutional entrenchment of environmental rights.
What factors, beyond institutional characteristics (like the peculiar resource
dependency of hybrid regimes) might have been at work in Uganda that led
the country to join the ranks of environmental rights guarantors? Clearly, the
direct causality of the rapid constitutional replacement and the donor-signal-
ling hypotheses are both complicated by readily available counter-examples. A
logical next step in comparative qualitative analysis is, therefore, to identify
additional factors that may be complicating the impact of what might have
been expected to be primary causal relationships (Ragin, 2014).
 Earth system law in the age of humanity 43
Uganda: a society in recovery?
Louis Kotzé (2015) has drawn a useful distinction between thin and thick
constitutions. Thin constitutions (the U.S. Constitution being a prototypical
example) do little more than describe the relationships between the various
institutions of government that it establishes and between that government
and those whom it governs. It is thin in the sense that it merely constitutes
and regulates the state (ibid., p. 190).
Conversely, thick constitutions go beyond constituting and regulating the
state. Typically, they embody an expression of the collective will that is self-
assured and which seeks ‘to guarantee a “good” and protective legal order’
through the entrenchment of ‘fundamental substantive rules’ that go beyond
constituting a government to ‘improve a legal and political order’ (ibid., p. 191).
These constitutions are generally symbolic markers of great transitions that
‘herald “new beginnings”, where an idyllic “after” stands in stark contrast to a
terrible “before”’ (ibid., p. 192).
If ever there was a society in need of an idyllic after to displace a terrible
before, it was Uganda when Museveni came to power 1986. Idi Amin’s rule
by terror ‘had left Uganda ravaged, lawless and bankrupt, with a death toll
put at 250,000 people’ (Meredith, 2011, p. 238). His successor, the political
boomerang Milton Obote, proved to be even worse. Coming to power in a
disputed election, he precipitated a civil war in which his northern army was
responsible for an estimated 300,000 deaths. By the time he was overthrown,
‘Uganda was ranked among the poorest countries in the world’ (ibid., p. 238).
Upon coming to power, Museveni’s National Resistance Movement (NRM)
pursued a strategy designed to eliminate the divisive influences it held respon-
sible for Uganda’s misery – regionalism, ethnic division and, most importantly,
partisan politics (ibid.). The NRM ‘sought to build a government of national
unity’ (Tripp, 2010, p. 48) based upon a fictive claim that it was not a political
party. Uganda would become neither a multi-party nor a one-party state. It
would be a democracy where the popular will was expressed through a decen-
tralised movement structure of elections with unaffiliated individuals standing
for office at the level of local councils. Governing councils above this entry level
of movement politics were selected from the councils immediately below.
Political parties could still exist but could not field candidates.
Uganda’s regional identity structure and civil society organisations were
also subsumed by this movement politics. The National Resistance Council
(NRC) supplanted the historically important kingdoms, granting them sym-
bolic cultural recognition but stripping them of their governing functions. In
2009, the process of undermining the kingdoms was completed with a statute
creating 48 regional governments that dismembered the kingdoms more
ruthlessly than any colonial occupier (ibid.). These new internal boundaries
were, compared to those at the time of independence, less consistent with the
country’s ethnic map (Carbone, 2001) and thus less likely to encourage the
formation of regional and ethnic social movement organisations.
44 Walter F. Baber
Furthermore, civil society organisations (CSOs) have not fared well under
Museveni. The complex overlay of religion and ethnicity which characterises
Uganda could normally have been expected to spawn a dense, diverse, and
dynamic pattern of CSOs. However, religious and ethnic tensions were central
to Museveni’s diagnosis of what ailed Uganda. The NRM argued that these
forces, combined with partisan and regional animosities, created ‘patterns of
economic, political and military polarization’ that were the basis for the con-
flicts that defined Uganda’s post-independence experience (Tripp, 2010, p. 42).
Having identified social diversity that might have otherwise been a national
strength as a cause of Uganda’s national misery, the NRM created a structure
for CSO activity that it hoped would complete the no party plan for unity
government and national reconciliation. Henceforth, CSOs were to exist only
within the Movement structure, licensed by law and subject to NRC jurisdic-
tion. With the passage of time, restrictions on CSO activity have been eased.
In fact, there is evidence that CSOs have become a significant element in
local-level peacebuilding efforts in Uganda’s troubled northern region
(Omach, 2016). However, this civil society renaissance comes too late to have
contributed to the constitutional entrenchment of environmental rights. And
it is evidence only that CSOs are contributing to government-approved
initiatives at a safe remove from the capital and consistent with priorities set
there. In fact, rather than acquiesce in the formation of potentially agonistic
CSOs, the NRM created ‘numerous state-sponsored or state-controlled orga-
nizations, including women’s councils, youth councils, and the Ugandan
National Students’ Association’ (Tripp, 2010, p. 104) in order to pre-empt
independent organising through aggressive counter-programming.
This is not to say, however, that CSOs have contributed nothing to Ugandan’s
constitutional environmental right. It simply appears that the contribution is not
of domestic origins. Like many post-colonial countries in Africa, Uganda was
heavily dependent on an international donor community which seeded the con-
tinent with NGOs that were active locally but not truly of the localities. The
dependence of African nations on Western largesse has often been regarded as a
key element in the broader move for democratisation – though that assumption
deserves re-examination in light of experience (ibid.). That dependence, however,
has been significant in Museveni’s Uganda because it provides resources that are
essential to keeping the inherently fragile elite coalition from flying apart.
This pattern is so common among hybrid regimes that it is generally
understood as the price of business as usual rather than as a genuine sign of
openness to meaningful political or economic reform (Levitsky and Way,
2010). Nevertheless, it would be rash to dismiss the influence of CSOs on
Uganda’s constitutional choices simply because the organisations involved are
not indigenous to Uganda. At the time of the adoption of the 1995 Con-
stitution, Museveni still profited significantly from his carefully cultivated
reputation in the West as a member of a new generation of African leaders
(Meredith, 2011). After all, new beginnings – as stated previously – have
universal and timeless appeal.
 Earth system law in the age of humanity 45
Uganda: norms for the return of normal?
The third corner of the EROS triangle suggests that the normative character
of a society is influential in determining opportunities for advancing environ-
mental rights. This idea is particularly important when considering environ-
mental constitutionalism for at least three reasons. First, a constitution is not
just a document or even a document but rather an expression of public power
and how that power is used. It is ‘made up of the structures, processes, prin-
ciples, rules, conventions and even culture that constitute the ways in which
government power is exercised’ (McLean, 2018, pp. 404–405). Therefore,
there is always a risk of misunderstanding the import of the clauses in a
constitution if the normative context of the nation that produces it is ignored.
Second, the constitutional entrenchment of a right can have various
meanings – not all of which have the same normative significance, or even
any normative significance at all. Rather than expressing a normative pre-
commitment to guide action in future cases with unforeseen consequences
(Baber and Bartlett, 2005), it can be merely the expression of a future orientation
as a matter of economics (Imhof et al., 2016) or even a cynical signal about the
fictive progressive intentions of a new and suspect regime (Levitsky and Way,
2010). These three points describe a continuum along which constitutional rights
may vary, from those of high normative significance to those which conceal the
lack of any normative commitment whatsoever.
Third, how the environmental assurances that appear in national constitutions
relate (if they do) to any normative consensus in support of an international
agreement regarding environmental rights should be examined (Turner, 2013).
Research by Boyd (2012) and others suggests that the emergence of environ-
mental constitutionalism among nations might be a substitute for hard-to-
negotiate and harder-still-to-enforce international environmental rights. This
would require those rights to be so broadly adopted and uniformly understood
that they supported a conclusion, that the duty to protect the environment is a
universal one erga omnes, and is incumbent on states to deliver on behalf of the
global community (Weatherall, 2015).
However, finding the normative warrant in Uganda’s entrenchment of an
environmental right is a daunting task. Even if potentially duplicitous motives
of the ruling elite are set aside arguendo, it is hard to draw normatively sig-
nificant conclusions about the intent of Uganda’s environmental con-
stitutionalism. In fact, the same may be said of many other nations. This is
particularly true of the other deviant cases – common law countries that have
environmental rights clauses and civil law countries that lack them. These
may be dismissed as idiosyncratic outliers, but that could be a mistake. When
conducting comparative qualitative case analysis with a small number of
cases, the contrary cases are particularly important in reducing the property
space within which outcome-determinative factors are specified. Indeed, if
there were no deviating cases, it would be impossible to distinguish causal
factors from coincidental ones and each individual case would become an
46 Walter F. Baber
unmanageably large configuration (Ragin, 2000). This is, perhaps, why
research to date on the reasons for environmental rights entrenchment has
largely been probabilistic in character.
The difficulty in the Ugandan case, however, is the lengths to which the
governing elite went, prior to the drafting of the constitution of 1995, to
eliminate from the political arena the regional/cultural, ethnic and religious
divisions that usually illuminate society-wide normative commitments. Iden-
tifying these elements of the national identity as the primary causes of the
nation’s misery presented the Movement with a quandary. Elements of
national culture so deep and broad cannot simply be banished. So, the
Museveni government adopted a two-pronged strategy. First, the NRM
created an array of internal organisations intended to replace conventional
NGOs (presumably in the hearts of citizens, not simply their engagement
calendars). Thus, the hybrid regime in Uganda passed over the garden
variety authoritarian state to reach for a level of social absorption that
only totalitarian regimes typically achieve.
Second, existing and future NGOs were made to understand that the
price of their existence was that they be politically neutered. Given that
external normative content which might bend the course of government
action towards broadly held social values relies on multi-party elections, it
is unlikely the choices Uganda’s political elites made about the new con-
stitution related to any norms other than their own. While these policies
have moderated somewhat since the adoption of the 1995 Constitution, it
seems improbable they encouraged genuinely held national values to assert
themselves in the drafting of that document.
Finally, it is worth remembering the experience of the Ugandan people over
the half-century prior to the adoption of their 1995 Constitution. Chaotic and
ill-planned decolonisation was followed by decades of increasingly violent and
unstable big man government. And just when things seemed like they couldn’t
get any worse, Idi Amin proved that they could. Even Amin’s overthrow
provided no relief. Milton Obote was even more destructive and deadly. Only
in comparison to that unbroken chain of misery could Museveni’s soft
authoritarianism be regarded as a welcome respite. Is it any wonder, then,
that it is a struggle finding the core values of the Ugandan people exerting
any influence on the course of their collective affairs? After all, in jur-
isprudential terms, a norm or value is merely an ‘ethical imperative expressed
at a high level of abstraction, and possessing the quality of an ultimate goal’
(Davis et al., 2017, p. 11). In a society where daily survival was for decades
the only goal, abstract norms can seem pale and pointless things.

The Ugandan EROS

So how to sum up Uganda’s path to constitutional environmentalism? The
EROS framework suggests there are three basic determinants of the oppor-
tunity to assert environmental rights: institutional factors, socio-political
 Earth system law in the age of humanity 47
factors and normative commitments. But even assuming this is true does not
go far enough. Within each of these categories the relevant factors in any
particular case can (on balance) favour environmental rights or frustrate
them. It is even possible that, under some circumstances, one of these
domains can lack significant environmental rights salience.
If the EROS structure is reconceived as a field of forces, a more useful
representation emerges. Figure 3.1 presents this force field. It conceives of
each EROS domain as a field through which a dividing line runs. The side of
each field closest to Figure 3.1’s centre indicates a balance of factors in that
field favouring an environmental right. The side of each field furthest from the
centre suggests a balance opposing such rights. Logically, where the positive

Figure 3.1 An Environmental Rights Opportunity Structures (EROS) force field

48 Walter F. Baber
region of each domain overlaps with the others, an optimal environmental
rights field of forces exists. This happy circumstance recalls the previous
characterisation of human rights as an area of consensus in policy space
(Baber and Bartlett, 2019). Move away from that overlapping optimum and
increasingly strident environmental rights vetoes are encountered. Outside
each field, the domain ceases to be salient for environmental rights.
How can the Ugandan case in terms of this field of forces be described? Clearly,
Uganda’s ruling elite was firmly in control of the relevant factors within the insti-
tutional domain during the development of the 1995 Constitution. The factors
that supported constitutional entrenchment of an environmental right were the
desire to send progressive signals to the international donor community and (sec-
ondarily) the desire to nationalise environmental protection and natural resource
decisions. In the absence of countervailing influences, these factors describe an
institutional domain that is supportive of environmental rights entrenchment.
Two factor domains of the EROS (social and normative) are subject to
somewhat uncertain interpretation. Civil society organisations were in dis-
array under Museveni. Their vulnerability to NGO registration requirements
suggests that they had not recovered to any significant degree by 1995. How-
ever, the global NGO community was important to the Ugandan regime
during this period for institutional reasons and that community may well have
introduced social demands for constitutional protections into the EROS. So,
it is plausible that there were domestic elements within the socio-political
domain that supported environmental rights entrenchment.
The normative domain, however, is more problematic. Many of the sources
of any nation’s value commitments (regional identities, religion, ethnicity) were
under attack by the NRM from the time it assumed power. Though attacks on
sources of Ugandan normativity have subsided somewhat, they were still quite
vigorous in 1995. Moreover, even if there had been an avenue for cultural
norms to influence constitutional formation, there is nothing to suggest that
environmental rights would have risen to the level of salience – given the far
more obvious sources of the nation’s misery.
In placing Uganda’s environmental rights entrenchment within the EROS
framework, the analysis above suggests that the space designated by the letter
C in Figure 3.1 seems appropriate. This suggests that factors within the
institutional and socio-political domains favoured entrenchment, while nor-
mative factors have not proven salient. This would lead to the conclusion that
the constitutional commitment to environmental rights in Uganda began life
as a normatively weak consensus. By contrast, the space designated by the
letter A indicates an EROS that supports socially weak consensus for EC.
And region B represents an institutionally weak consensus for EC. Assuming
that juridical decision-making is significantly shaped by a community’s nor-
mative character, jurisprudential development of this normatively weak right
to proceed gradually would be expected – with occasional false starts and
setbacks. And, as a matter of empirical fact, that pattern has emerged
(Soyapi, 2019).
 Earth system law in the age of humanity 49
Here, the ubiquitous call for more research might emerge. True enough, this
account of the Ugandan case could profit from validation, correction and exten-
sion by scholars of African politics. Further comparison to other African nations
and other common law polities would also be worthwhile. However, the introduc-
tion of the EROS framework allows an acknowledgement that more than that
additional research is needed. Here the role of Indigenous knowledge in the
promotion of environmental management in local African Indigenous commu-
nities should be recognised, notably traditional norms and governance arrange-
ments concerning protection of the environment (Etemire and Uwoh Sobere,
2020). So too should the impact of the African Charter on Human and Peoples’
Rights on constitutional environmentalism (right to environment) in countries in
Africa – including Uganda (Ekhator, forthcoming). African scholarship regarding
environmental law and natural resource management is also of importance in this
regard (Anaebo and Ekhator, 2015; Unuigbe, 2020).
The EROS approach apparently permits retrodiction of the past. While
not all theoretical constructs can do even this much, retrodiction might seem
a limited achievement. However, this analysis can go further. If there is
reason to believe that the halting development of environmental con-
stitutionalism in Uganda is explained by that right’s normative weakness,
the focus should be on efforts to strengthen the right. For example, in-service
training for Ugandan lawyers and judges on environmental human rights advo-
cacy – with a particular focus on cultural narratives and normative reasoning,
emphasising the sustainable development potential of environmental rights –
would appear to be an appropriate approach to strengthening environmental
rights under these specific circumstances.
So, EROS analysis allows us not only to focus environmental rights exper-
tise on what appears to be a strategic variable (one that is both outcome-cri-
tical and potentially manipulable) but also to anticipate what kind of
interventions have potential to achieve scholarly objectives. Moreover, it sug-
gests that university-based social science expertise (a resource that is readily
available and relatively cheap) can be deployed in a highly useful way. But if
that resource is to produce more than incremental improvement in environ-
mental rights – if it is to prove transformative of people’s relationship with the
environment and each other – it must be inspired by some broader vision.

From EROS to Anthropos

In Greek mythology, Eros was the primordial god of desire. In Hesiod’s
telling, Eros came into existence after Chaos, Gaia, and Tartarus (the
abyss). Aristophanes helpfully adds that Eros descended into the darkness of
the abyss and there mated with Chaos, bringing forth the human race –
Anthropos. Humans are creatures born of desire – and chaos. Some envir-
onmentalists have argued that the survival of Anthropos will require the
intervention of another of the primordial gods – Gaia (not literally Mother
Earth, but humanity’s maternal aunt).
50 Walter F. Baber
In 1965, James Lovelock had a flash of insight. The Earth is not just
teeming with life – in some sense, the Earth is life. Lovelock tinkered with this
revolutionary idea for several years, first with his friend the novelist William
Golding, and then in an extensive collaboration with the American scientist
Lynn Margulis. In the 1970s, he finally went public with the Gaia hypothesis,
the idea that everything happens in nature happens for an end – that end
being the good of planet Earth (Lovelock and Lovelock, 2000).
The general public received Lovelock’s hypothesis enthusiastically. People
joined Gaia groups and (perhaps embarrassingly) churches held Gaia services.
However, the Gaia hypothesis has been broadly rejected by Lovelock’s fellow
natural scientists as pseudoscience. But Gaia is consistent with a long tradi-
tion in philosophy of goal-directed and holistic (or, organicist) thinking that
traces its roots back to Plato at least (Ruse, 2013). A bit further on from
Plato, the concept of Anthropos took on a stronger teleological slant when it
was translated not merely as human, but as the ‘human being … adequate
and equipped to every good work’ in the Bible (2 Timothy 3:17).
So, even if one grants that the Gaia hypothesis is pseudoscience, it appar-
ently is entirely plausible philosophy (venturing no estimate of its value as
religion). Moreover, in the age of the Anthropocene, a Gaia-inflected sense of
Anthropos may be a particularly useful foundation for social scientists who
are interested in strengthening regimes of environmental human rights (either
the national or transnational). Granted, the Anthropocene already hypothe-
sises a thoroughgoing interpenetration of human interests and environmental
protection. Informed by the teleology of Anthropos, however, the end in sight
is not the good of the Earth itself, but the satisfaction of human desires (Eros)
appropriately disciplined and refined to focus on fundamental and universal
human needs – on the sustainable development of environmental rights.
When social scientists consider the task of promoting the jurisprudential
development of environmental rights, they should keep in mind the telos of their
endeavour. When they train environmental activists to see the human rights
issues in various ecological challenges and when they help human rights advo-
cates appreciate the ecological predicates of the interests they defend, social sci-
entists are communicating action information – purposeful knowledge. And if
advocates practise research-advocacy (evidence-based intervention in regulatory/
judicial processes in defence of environmental rights), scholars should be willing
to pursue advocacy research (the extension of scientific understanding of rights-
relevant natural and social phenomena through research structured to meet the
needs, evidentiary and otherwise, of environmental human rights advocacy).
There is much to be gained by each community, activist and academic, if this
bargain is struck. Environmental rights advocates will gain information-generat-
ing capacity, academic credibility and some of the institutional durability that civil
society organisations generally lack but that universities can uniquely provide.
And academic social scientists stand to gain both partners for community-based
research programmes and a capacity for action which (even if indirect) can satisfy
their natural desire to see their work become more consequential.
 Earth system law in the age of humanity 51
As Figure 3.2 suggests, this concept envisions an iterative and reciprocal
relationship between environmental and human rights NGOs and uni-
versity-based researchers. When considering the challenges confronted by
civil society organisations whose objectives require the kind of sustained
effort over time that voluntary organisations find so difficult, and the
frustrations experienced by scholars who fail to see their work impact the
wider community, this conceptually simple set of reciprocal relationships
offers a way forward for environmental human rights that aligns the
interests and incentives of two major social institutions in a potentially
fruitful way.
Moreover, this account of the relationship between research and advo-
cacy suggests a way forward in environmental constitutionalism research.
If the objective becomes identifying and manipulating institutional, social-
political, and normative factors that determine the outcomes of environ-
mental rights advocacy, the focus cannot be on developing explanatory
models that do little more than retrodict the past. There is no need to shy
away from contextual specificity in search of the abstract and general,
especially with an action-oriented research agenda and an N of fewer than
200 nation states.
So, while invoking the twin concepts of advocacy research and research
advocacy opens a topical area that cannot be explored here, it suggests a
future element in the development of Earth system law that traces new paths
from policy theory to political practice. It also avoids the complaint that this
chapter concludes with a pro forma call for further research without
describing what that research might actually entail and why it might be
worth the effort.

Figure 3.2 A model of environmental human rights research and advocacy

52 Walter F. Baber
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4 International Relations and the
analytical foundations of Earth
system law
Mike Angstadt

Introduction
As interlinked environmental and human-social challenges drive demand for
a new legal approach that emphasises Earth’s systems, there is a unique
opportunity to both innovate and reflect. The Anthropocene presents novel
implications and challenges for Earth’s systems (Lewis and Maslin, 2015) and
for its inhabitants and governance (Kashwan et al., 2020). Effective Anthro-
pocene governance that can address the challenges facing Earth’s complex
systems will require new legal responses to the unique epistemic, ontological
and normative aspects and requirements of the natural world and in the light
of emerging and persistent major environmental challenges (Kotzé and Kim,
2019). However, this work can extend existing efforts to craft governance
responses that include a range of scientific disciplines at different spatial and
temporal dimensions (ibid.). The process of articulating a new Earth system
law that can effectively engage with the Anthropocene and its challenges
invites visionary legal approaches. Importantly, it also affords a toehold to
existing social science insights. Many of these, to date, have not widely
informed legal analysis.
This chapter explores how existing disciplinary perspectives can ground
innovative, expansive ideals, presenting the two objectives as complementary.
Its central contention is that the normative, analytical elements of existing
disciplinary perspectives and the practical, applied elements of existing envir-
onmental law approaches together can support an ESL approach offering
academic and applied benefits. First, the chapter suggests that an integrative
ESL would hold academic benefits: (1) helping to align ESL with ongoing,
complementary interdisciplinary efforts to study Earth system governance
(ESG); (2) answering longstanding calls to more clearly integrate International
Relations (IR) and social science theories when studying questions of interna-
tional law; and (3) promoting theoretical and methodological pluralism within
Earth systems research. Second, it suggests that explicitly incorporating insights
from multiple disciplines into ESL would have applied benefits, helping the
emergent field to avoid the critiques of reductionism and state-centrism often
levied against more conventional environmental law.

DOI: 10.4324/9781003198437-6
56 Mike Angstadt
In pursuit of these goals, the chapter first notes the objectives advocated
by those seeking to develop ESL to address Anthropocene challenges, and
it highlights how these emphases align with existing disciplinary insights.
Through this process, it identifies a need to better clarify how new legal
ideas spread and how practitioners within the legal field exchange ideas.
As it notes, both these questions are addressed by existing research within
international relations (IR) and global environmental politics (GEP),
which both examine processes of norm diffusion and judicial globalisation.
After identifying and evaluating some potential interdisciplinary synergies,
the chapter notes how an expansive theoretical foundation will support the
development of ESL. In addition to discussing the academic and applied
benefits outlined above, the chapter notes that this interdisciplinary
approach will emphasise process in ESL, participation in ESL, and pro-
pagation of ESL. In conclusion, the chapter suggests that using existing
theoretical insights enables those advancing an ESL approach to illustrate
how legal scholarship can be rendered more interdisciplinary.

Background: the demand for Earth system law

The pursuit of a new ESL framework reflects recognition of the need for
legal innovation in response to the governance, environmental, and social
challenges that result from the transition to the Anthropocene epoch
(Kotzé, 2020). In many domestic contexts, complex environmental issues
and institutional dynamics, including gridlock and partisan polarisation,
exert tremendous pressure on already overtaxed generalist institutions
(Klyza and Sousa, 2008). Internationally, many institutional frameworks
intended to resolve the challenges of key environmental regimes have
received critique for mixed performance (Ivanova, 2010). Further, inter-
twined environmental and human health challenges continue to mount
(Brondizio et al., 2019).
In response to these challenges, legal scholars and practitioners have
sought to reimagine environmental law frameworks. Scholars have explored
innovative approaches that can be used within the dominant legal frame-
work: new theories of liability and causation surrounding environmental
harms, new institutions to interpret environmental challenges, and even new
movements to expand standing, legal personality, and potential environ-
mental plaintiffs. Despite many promising refinements to environmental law,
there is increasing argument that the dominant framework of environmental
law itself has limited the capacity to effectively advance sustainability,
equity, and environmental justice.
Among the many critiques of existing environmental law, three in particular
seem to support a broader reimagination of legal frameworks. First, many high-
light the subdivided, issue-specific nature of contemporary environmental law.
Second, researchers note environmental law’s deeply anthropocentric nature, ques-
tioning whether such an approach can effectively address the full range of
 International Relations and ESL 57
environmental interests. Third, there is widespread identification of environmental
law’s disciplinary insularity, with researchers noting that the subfield, like law
more broadly, frequently lacks a connection to other disciplines and per-
spectives that could offer beneficial insights.
First, like other legal disciplines, environmental law and its practitioners have
developed a deep degree of specialisation. Environmental law addresses com-
plex and specialised issues (Gupta, 2011) that increasingly require scholars and
practitioners to engage with complex doctrine and science (Fisher, 2013).
Rather than promoting a holistic response to global environmental challenges,
complexity has instead led to subspecialisation, as practitioners and scholars
focus on discrete environmental challenges. This development is problematic,
since legal pluralism (Kotzé and Kim, 2019) and a lack of systemic response to
interlinked environmental issues can frustrate efforts to satisfactorily address
broad challenges (Burch et al., 2019). An effective response to Earth systemic
challenges may require a more comprehensive orientation.
Second, notwithstanding the environmental focus that orients its efforts,
environmental law in its current formulation remains, like most other dis-
ciplines of law, deeply anthropocentric. While environmental law emphasises
the stewardship of natural resources and the environment, these protections
frequently most centrally benefit humans. The current system of law tends to
resolve conflicts between human and non-human interests, prioritising the
economy and private property (Garver, 2018). This hierarchy has manifested
widely. Indeed, even amidst the burgeoning rights of the nature movement,
which explicitly seeks to recast the balance between human and non-human
interests, early efforts to operationalise the concept have demonstrated unease
with the rebalancing. For instance, New Zealand’s Whanganui River, which
was granted legal personhood, is still subject to the Crown’s reservation of
mineral rights (see Prior, 2018).
This deep anthropocentrism has been widely noted and critiqued by
environmental law scholars (Kotzé and Kim, 2019). This recurrent sugges-
tion that environmental law favours not only humans over nature, but some
humans over others (Lin, 2016) raises broad normative and ethical questions
that further underscore the urgency of this analysis on the threshold of the
Anthropocene. Ultimately, efforts to create more equitable and inclusive
legal responses to environmental challenges suggest there is value in broadly
and creatively reimagining the governance structure (Kotzé, 2014).
Third, owing to its specialisation, environmental law has become an
introspective discipline. Although its relative youth means that many envir-
onmental law foundations derive from other disciplines and bodies of law,
environmental law today lacks deep connection to other fields of study and
practice. Within environmental law, a rich debate surrounds the question of how
much interdisciplinarity is desirable, and how best to pursue meaningful inter-
disciplinarity. While individual viewpoints are nuanced, this debate is framed in
part by practitioners and scholars who advocate the importance and urgency of
interdisciplinary exchange. For instance, scholars noting methodological and
58 Mike Angstadt
substantive synergies between environmental law and the sciences have urged
that such collaboration is essential for sustainable solutions to environmental
problems; they advocate richer exchange and a familiarity with methodological
approaches employed by sister disciplines (see McEldowney and McEldowney,
2011). In contrast, others offer a more tempered assessment of interdisciplinary
prospects. For instance, some suggest that efforts at interdisciplinary scholarship
can unintentionally entrench a researcher within a given discipline, reify per-
ceived disciplinary boundaries, and limit innovative potential (Pedersen, 2014).
Additionally, the lack of a firm environmental law disciplinary and theoretical
foundation could ultimately yield incoherence (Pedersen, 2013).
In response to both embrace and critique of interdisciplinarity, many
researchers examine how environmental law scholarship might be made more
interdisciplinary. As a foundational effort, some have examined existing
impediments to greater collaboration. For instance, a range of practical con-
siderations may impair the development of interdisciplinary scholarship,
including insufficient interdisciplinary training and even how interdisciplinary
publications are counted for tenure and promotional purposes (Owen and
Noblet, 2014). Alongside these focused considerations, researchers have
explored ways to better integrate training in environmental law with other
disciplines, promoting more holistic preparation of future practitioners
(Godden and Dale, 2000). Additionally, many research projects evaluate how
environmental law might be practised in a more explicitly interdisciplinary
fashion. Among the many potentially helpful practices, researchers advocate
openness to mixed methods research, sensitivity to power dynamics, and
attention to differing research ethics considerations and guidelines among
disciplines (Parks and Morgera, 2019).
Ultimately, attempts to pursue a more holistic, interdisciplinary environ-
mental law will be challenged by a combination of factors: its highly specialised
nature, its anthropocentrism, and its narrow focus. In response, recent efforts
have sought to expand environmental law beyond its traditional ontological and
epistemological orientations, rendering it better equipped to systemically address
both human and non-human needs.
While ESL reflects the newest of these theoretical efforts, it expands a
universe of related approaches. These include: wild law (Cullinan, 2011),
which advocates greater sensitivity to Earth-based jurisprudential approa-
ches; a planetary boundaries legal approach, which references planetary
thresholds and tipping points to better align governance with key biophysi-
cal processes (Fernández and Malwé, 2019); and global environmental law,
which incorporates common legal principles from national, international, and
transnational systems (Yang and Percival, 2009). Together, these approaches
have advocated interdisciplinary scholarship (Parks and Morgera, 2019), com-
parative analysis (Morgera, 2015), and systems-level awareness of human
impacts (Kotzé, 2014). An inclusive and interdisciplinary ESL approach could
meaningfully advance each of these objectives.
 International Relations and ESL 59
Building bridges: the interdisciplinary foundations for Earth system law
As scholars begin to consider what ESL might look like, their work advances
simultaneous efforts to think in more interdisciplinary fashion about Earth’s
systemic challenges.
ESL’s objective of contributing insights with applied and academic relevance
does not require wholesale reinvention of the academic enterprise. Rather,
existing theoretical, methodological, and analytical frameworks can support
more holistic, interdisciplinary engagement and directly lend practice relevant
insight. In this way, the development of ESL offers a chance to better integrate
complementary disciplines and approaches that collectively examine similar
questions or themes. A clear opportunity to pursue this integration exists
between International Relations (IR) and international law (IL). These two
disciplines’ objectives complement one another, yet their ties have historically
been underdeveloped (Slaughter et al., 1998). ESL’s development could likely
benefit broadly from IR, and especially the subfield of global environmental
politics (GEP). To provide an initial illustration, this chapter highlights two
such potentially beneficial inroads: (1) focused scholarship examining norm
diffusion; and (2) judicial globalisation.

Norm diffusion
A central challenge to the emergent ESL approach is that its ultimate success
will require both creative conceptualisation and effective promotion and
implementation. While ESL may effectively address issues that the current legal
frameworks cannot resolve, it also contests many entrenched approaches,
questions longstanding structures, and is therefore likely to encounter resis-
tance. Accordingly, effectively operationalising ESL will require its advocates to
consider how new concepts and paradigms gain acceptance and propagate.
This question has received extensive attention from IR and IL scholars alike. In
particular, IR scholars examine norms, which researchers commonly define as
standards, as the appropriate behavioural characteristics of a given set of actors
with a known identity (Finnemore and Sikkink, 1998). Among the norms sur-
veyed by IR scholars, one class of what are seen as constitutive norms emphasises
efforts that result in novel actors, interests, or types of action (ibid.). While norms
dynamics have received widespread attention throughout the IR literature, they
have received particular attention from social constructivist scholars (Hoffmann,
2010), who widely examine how norms shape responses to broad environmental
challenges. While some existing scholarship examines how norms drive broad
structural changes (see Ovodenko and Keohane, 2012), GEP researchers have
also applied the concept to discrete environmental issues and responses, including
climate change (Betsill and Bulkeley, 2004). Attention to norms and their diffu-
sion is similarly widespread among IL scholars, including in research exploring
international environmental law (Parks and Morgera, 2015). Therefore, IR and
IL research can collectively support the development and spread of ESL.
60 Mike Angstadt
Given that environmental norms have been examined from both IL and IR
perspectives, many existing insights are available to architects of ESL. In
particular, scholars have generated valuable insights regarding the practices of
norm contestation, the role of norm entrepreneurs, and the processes that
advance normative implementation. First, researchers have explored how new
norms emerge and conflict with existing norms. This process of norm con-
testation emphasises the interactive nature and evolutive processes that guide
normative development (Finnemore and Sikkink, 1998). As a result, those
advocating new norms have to consider whether to comport with or contra-
vene existing practices and understandings. Questions of norm contestation
have been widely examined within the human rights context, where rights-
based obligations are rapidly evolving and frequently in conflict (see Welsh,
2013). However, many environmental issues, including damming and hydro-
power, lead to contestation and questions of knowledge and power (Hensen-
gerth, 2015). Similarly, the global nature of normative negotiation creates
tension between differing approaches and regional contexts (Bernstein and
Cashore, 2012). ESL may well conflict with existing legal structures but also
provide an opportunity to rethink and re-form existing insights.
In addition to attention to norm contestation, scholars have sought to
understand the contributions of norm entrepreneurs (Finnemore and Sikkink,
1998). These agents of change have proven instrumental in advancing new
approaches in diverse issue domains. Existing research emphasises that the
identity of norm entrepreneurs can vary widely and includes individual, gov-
ernmental, and institutional actors. Scholars have emphasised the important
role of epistemic communities of individual experts who mediate and promote
authoritative information (Haas, 1989), have documented international norm
entrepreneurship by national governments (Ingebritsen, 2002), and have high-
lighted how institutional actor classes, including international financial institu-
tions, contribute to norm entrepreneurship (Park, 2005). Both individual and
institutional actors underscore how perceptions of legitimacy and power
dynamics empower certain actors, vesting them with greater success in advan-
cing new norms (Okereke, 2008). It also reaffirms that environmental norms,
like norms in IR more broadly, diffuse through intentional efforts; this process
raises important equity concerns regarding who is promoting normative con-
tent and how (ibid.). Therefore, as ESL develops as a theoretical, normative,
and analytical construct, existing literature counsels that its advocates must
remain mindful of power dynamics, inclusivity, and justice/equity dimensions
that will influence who can help to define and promote the new ideas.
Finally, GEP scholars have examined how new ideas gain acceptance and
implementation in the governance landscape. This ultimate step for new
norms follows their emergence and spread, and it signals a point of such
general acceptance that conformity becomes almost automatic (Finnemore
and Sikkink, 1998). Norm implementation entrenches new norms that them-
selves become difficult to unseat, and a period of more uniform state practice
follows (ibid.). The norm implementation literature demonstrates how norms
 International Relations and ESL 61
are frequently operationalised through interaction with, and incorporation
into, formal state structures. This avenue of analysis is particularly relevant to
ESL scholars, who are ultimately interested in supplanting the existing legal
architecture with new approaches. Existing insights derive from GEP and IL
researchers alike, since many environmental norms (Clapp and Swanston,
2009) and legal norms have been entrenched within domestic settings. IL
scholars have examined how international legal norms and the international
rule of law gain traction as IL is applied within domestic contexts (Kumm,
2003). In turn, they show that domestic courts and institutions help to
develop and operationalise norms in a global context (Tzanakopoulos and
Tams, 2013). As ESL principles emerge, this existing scholarship can help
researchers better understand how extant institutions will shape the success of
new ideas.
Ultimately, norm diffusion scholarship, as conducted by both IR and IL
scholars, provides a strong foundation to inform the development and pro-
pagation of new normative content that can advance the ambitions of ESL
scholarship. At the same time, emphasising norms and the mechanisms by
which they propagate can obscure similarly important questions regarding the
individuals and actors who promote and develop new ideas. Therefore, ESL
researchers should also explore existing literature considering the actors who
shape and drive new ideas.

Judicial globalisation
Alongside normative scholarship, an extensive literature has explored how
actors interact and exchange ideas across institutional, political, and geo-
graphic contexts. In particular, researchers have evaluated how domestic
practitioners can contribute to the development and institutionalisation of
new ideas. These questions are richly explored in a body of IL literature
examining the process of judicial globalisation and the emergence of a global
community of courts.
Beginning in the mid-1990s, researchers began to emphasise that IL was not
simply a creation of international institutions, but rather a dynamic and inter-
active medium that also took form through interactions and contributions of
domestic actors. Much of this scholarship emphasises the important role of
interactions among judges (Slaughter, 1999). Among multiple identified
mechanisms for judicial interaction, two appear particularly relevant to ESL: (1)
constitutional cross-fertilisation, where courts in one jurisdiction seek guidance
on and insight into the opinions of courts in other political jurisdictions
(Slaughter, 1999); and (2) workshops, conferences, and in-person meetings,
enabling judges across jurisdictions to exchange and align practices (ibid.).
Researchers suggest that domestic courts increasingly perceive they have a
role as transnational actors of IL, mediating the boundaries between domestic
and international norms and practices (Waters, 2004). These practices have
been widely documented in the environmental realm, where multiple indicia
62 Mike Angstadt
of such exchanges exist. For instance, many leading-edge domestic legal opinions
directly cite those set forth in other jurisdictions. One example of this practice
was the pathbreaking Oposa v. Factoran (1993) opinion, which catalysed sub-
sequent effort. These include, as the International Union for Conservation of
Nature (IUCN) notes, efforts to advance climate trust litigation in the United
States through the widely followed Juliana v. United States (2019) litigation.
Individually, these rulings provide toeholds of persuasive authority to translate
ideas across legal systems; collectively, the exchanges foster a more global
environmental jurisprudence.
As legal norms and concepts spread through domestic judicial opinions, in-
person exchanges have also permitted dialogue between environmental judges
and practitioners. Key ongoing examples include the Asian Judges Network
for the Environment, the European Union Forum of Judges for the Environ-
ment, and the Association of Southeast Asian Nations’ Chief Justices’
Roundtables on the Environment. Additionally, in 2018, the IUCN’s World
Commission on Environmental Law convened a Global Judicial Institute on
the Environment (GJIE) (World Commission on Environmental Law 2020).
The GJIE is explicitly tasked with the objective of providing ‘opportunities to
exchange information, create partnerships for collaboration, strengthen capa-
city, and provide research and analysis on topics important for environmental
adjudication, court practices, and the environmental rule of law’ (ibid.).
Finally, many environmental nongovernmental and intergovernmental orga-
nisations actively promote information exchange among legal practitioners. In
one particularly clear example, the United Nations Environment Programme
(UNEP) has facilitated interactions between countries with established specialist
environmental courts and those countries which are considering them. For
countries contemplating innovative legal structures or practices, these mediated
interactions can offer domestic governmental employees’ access to insights and
best practices guidance from sister jurisdictions.
The foregoing examples (referencing legal opinions from other jurisdictions,
sharing insights through conferences and networks, and drawing upon mediated
exchanges) collectively reflect widespread interest in a more cosmopolitan legal
approach to the environment. Furthermore, these trends appear to reflect pro-
cesses described by judicial globalisation scholars in other issue areas and those
envisioned by ESL scholars. Just as ESL scholars envision a reshaped global
community, established scholarship emphasises ways that emergent changes to
dominant legal structures may be amplified, accelerated, and leveraged; judges,
like the litigants and lawyers before them, are beginning to understand that they
function in a wider world (Slaughter, 1999).

Brokering benefits: the advantages of an interdisciplinary Earth system

law approach
ESL offers tremendous promise, both as a novel analytical, theoretical, and
normative construct, and as a platform to leverage existing insights for the
 International Relations and ESL 63
benefit of new ideas. While analyses rooted in established disciplines, includ-
ing IR and IL, can entrench existing practices, they can also leverage widely
accepted theoretical approaches to support new ideas. As the preceding sec-
tions demonstrate, normative and judicial globalisation scholarship emerges
from conventional discourses, yet both are highly relevant to the critiques,
questions, and objectives motivating ESL analysis.
Using existing theory to support new ideas can yield better, more broadly
considered outcomes. It also offers both academic and applied benefits. In
academic terms, a more holistic effort can: (1) best align ESL with com-
plementary efforts to study ESG; (2) advance longstanding calls to more
clearly integrate IR and GEP with IL; and (3) promote theoretical and
methodological pluralism within Earth systems research. In applied terms,
embracing IR and IL insights could help ESL rectify limitations attributed to
the dominant, state-centric regulatory approach. Each of these benefits merits
brief consideration in turn.
First, the Earth systems law project can align with ongoing, complementary
efforts to study ESG by giving attention to diverse theoretical perspectives. ESL
is not intended to replicate existing disciplinary postures and debates, but rather
to challenge dominant paradigms regarding the scope, purpose and orientation
of the law (Kotzé and Kim, 2019). However, ESL advocates do not envision an
isolated research effort, noting the role of such initiatives as the Earth System
Governance Project (ESGP) (ibid.). ESL’s capacity to perform both of these
functions demands a theoretically pluralistic foundation.
Second, incorporating interdisciplinary insight into ESL would advance
longstanding calls to more clearly integrate IR and IL theories to address
common questions. As the preceding sections demonstrate, IR and IL explore
common areas, including norms and judicial globalisation, that can inform ESL
objectives. However, while IR and IL offer complementary and relevant insights
to ESL analysts, exchanges between these disciplines have been relatively limited.
In recent years, interest has grown in fostering theoretical exchange
between IR and IL, as legal institutional questions gain increasing acceptance
within the IR community (Slaughter et al., 1998). While IR is itself a dis-
parate field, scholars note that its dominant subfields emphasise the centrality
of legal process; likewise, social constructivists examine the role of law, and
acknowledge that, like norms, law can impose tangible limits on the beha-
viour of states (Raffo and Sriram, 2006) In short, contemporary IR largely
acknowledges the relevance or import of IL and seeks to understand how it
shapes the international order (ibid.).
Similarly, IL scholars have explored questions surrounding international
exchanges that could benefit from the theoretical insights of IR and related
social sciences fields, and researchers have worked to catalogue these oppor-
tunities. For instance, researchers document the utility of IR scholarship when
examining broad, overarching themes that interest international legal scho-
lars, including the structure and function of international institutions and the
broad architecture of IL (Slaughter et al., 1998). Elsewhere, Setear documents
64 Mike Angstadt
how IR’s consideration of regime theory could help international lawyers situate
international treaty-making in broader systemic and economic considerations
(1996). Ultimately contemporary IR theory offers IL scholars a means of
escaping narrow positivism (Abbott, 1989). Using IR theory to study IL can
yield a more systemic, holistic understanding of legal phenomena and associated
social drivers and determinants.
However, the synergy of interest between IR and IL does not guarantee an
easy exchange. IL scholars’ use of arcane cases and legal precedents bewilder
IR scholars and policy practitioners, while IR scholars are trapped in their
own obscure debates and arguments (Raffo and Sriram, 2006). Nevertheless,
there is clear interest in better integrating the closely related disciplines from
both sides of the perceived divide, as researchers highlight the benefit of
incorporating realist (Abbott, 1989), neoliberalist (Slaughter et al., 1998), and
social constructivist (Brunnée and Toope, 2000) insights into IL studies. The
emergence of ESL, with its expansive motivations and questions, provides an
ideal opportunity to support this longstanding call for integration.
A third likely academic benefit of a theoretically grounded approach to ESL
is that it would promote theoretical and methodological pluralism within
broader Earth systems research. Just as ESL will benefit from diverse insights,
the overarching literature that it addresses will improve through reference to
interdisciplinary theoretical foundations. First, ESL contributes to broader
theoretical perspectives, going beyond traditional approaches, narrow profes-
sional bodies and isolated research communities (Biermann et al., 2019)
encompassing political science and law (ibid.). It is this broad, planetary
orientation that draws upon – and benefits from – insights of the social sciences
and other disciplines, including specialised legal subdisciplines (Biermann,
2012). The ESG network of scholarship, for example, adopts a range of
approaches and disciplines from social science (Burch et al., 2019), including
law (Burch et al., 2018) and the linkages between ESG and legal knowledge
(see Spagnuolo, 2011). Nevertheless, current efforts do not yet seem to fulfil this
network’s original vision, which identified legal normative questions as a major
challenge for scholars of both IR and IL, and one of the core research chal-
lenges regarding the problem of architecture. (Biermann et al., 2009). Given the
remaining opportunities to further and better integrate legal insights into ESG
scholarship, ESL represents a valuable venue. These emphases mirror efforts
within Earth systems science, broadly, to advocate research into innovative
institutional, policy, and governance responses (Reid et al., 2010).

Beyond ESL: the power of an interdisciplinary Earth system law

example
By incorporating insights from IR and IL, ESL can support more robust,
beneficial scholarship; the approach would foster better integration with other
Earth systems scholarship, advance long-advocated interdisciplinary con-
textualisation, and support theoretical and methodological pluralism in ESG
 International Relations and ESL 65
analyses. However, the objectives of ESL extend far beyond academia. How-
ever, ESL must not simply analyse existing approaches, but also consider its
normative dimensions and, ultimately, offer prescriptions to reshape legal
structures (Kotzé and Kim, 2019). Efforts to advance the practice relevance of
ESL will support similar ambitions in the broader ESG research initiative,
where recent reflection has suggested that practitioner engagement has been
less pronounced, and scholars should seek to strengthen ties with non-aca-
demic stakeholders (Biermann et al., 2019). By incorporating IR and IL
insights, ESL’s attention to practice-relevant recommendations can support
the design of systems that are less reductive and better equipped to sidestep
shortcomings of the current, state-centric approach. Many existing environ-
mental legal approaches are problematic, given their narrow issue-specific
focus, in contrast to broad, global challenges to the global environment. As
ESL pursues more systemic recommendations, it can do so in ways that are
practice-relevant.
Relatedly, many existing recommendations from environmental legal scholars
prioritise recommendations for remaking state-based approaches. While valu-
able, these recommendations neglect the important contributions of non-state
actors and less institutionalised forms of governing and knowing the environ-
ment. This focus on non-state regulatory efforts has been embraced by IR and
environmental governance scholars in a range of issue areas. For instance,
scholars have explored the structure and effect of private certification schemes
(Auld, 2014) concerning forestry (Cashore, 2002), fisheries and aquaculture
(Karavias, 2018) and coffee (Auld, 2010). These research efforts support more
informed institutional design by exploring how private regulatory schemes
interact with consumer behaviour (Gulbrandsen, 2006), guide corporate deci-
sion-making (Pattberg, 2006), complement more formal governance structures
(Bernstein and Cashore, 2012), and shape broad sustainability efforts (Dau-
vergne and Lister, 2012). This literature, its attention to multiple intertwined
questions, and its robust theoretical development demonstrate how IR can be
shaped to fit focused environmental issues. These same insights support ESL
scholars as they envision legal structures that can secure compliance, even as
they move beyond the dominant, state-centric framework.
Just as IR environmental scholars have highlighted multiple approaches for
reshaping environmental governance, the existing literature emphasises
diverse ways of knowing and interacting with the environment. As ESL seeks
to expand beyond dominant, Western legal approaches, these insights can
help to guide recommendations and structures by illustrating past challenges
and responses. Across regimes, non-Western and Indigenous interests have
frequently conflicted with neoliberal ideals and governance structures. Case
studies, including water privatisation efforts in Bolivia (Mehta et al., 2014),
forest management in the Amazon (Perz et al., 2008) and resource extraction
conflicts (Martin, 2011), collectively emphasise the importance of incorporat-
ing diverse world-views and perspectives. These insights are echoed by emer-
gent research across disciplines examining the rights of nature movements,
66 Mike Angstadt
where new approaches have sought to reshape the governance of rivers (Clark
et al., 2018), of species (Von Essen and Allen, 2017) and of ecosystems (Prior,
2018). Collectively, this literature suggests the potential and challenges facing
more inclusive forms of governance, the embrace of Indigenous world-views
and emergent responses that contest settled legal practices (Borràs, 2016). It
also demonstrates IR and legal attention to issues relevant to the ESL initiative.
Furthermore, as ESL engages with contested and complex questions, existing
analyses can help it to better reflect diverse perspectives and world-views.

Conclusion
The emergence of ESL as a normative, discursive, and analytical framework pro-
vides a unique opportunity to reconsider how conventional legal approaches
address systemic environmental challenges. As scholars demonstrate, environ-
mental law offers an incomplete response to the scope and scale of contemporary
challenges, given its specialisation, deeply anthropocentric nature, and relative iso-
lation from other disciplines. Simultaneously, researchers urge the importance of
innovative, systemic responses that are theoretically robust and practice-relevant.
While scholars’ positionality within the dominant, human-oriented paradigm
complicates efforts to envision a new approach, ESL joins other efforts in seeking
to advance a more holistic and equitable systems approach.
As this chapter argues, efforts to envision a new approach can benefit from
attention to existing disciplinary insights. Researchers in IR and IL have
explored questions that complement many stated objectives of ESL’s pro-
posed analyses and responses. For instance, IR-based norm scholarship
demonstrates that new ideas can spread and contest dominant approaches,
particularly when they are advocated by norm entrepreneurs, and that this
process of norm diffusion can lead new ideas to cascade across jurisdictions
and secure implementation. Similarly, interdisciplinary scholarship examining
judicial globalisation indicates that legal actors, including domestic judges,
can contribute actively and enthusiastically to exchanges. Each of these
existing bodies of literature speaks to important themes and questions within
ESL, including how new approaches might spread and gain acceptance.
Beyond aiding the scholarly and applied objectives of ESL, incorporating
IR and IL insights into new approaches offers multiple benefits. As this
chapter notes, leveraging IR and IL would advance interdisciplinary objec-
tives in broader Earth system scholarship, help to reduce artificial barriers
separating existing disciplines, and support theoretically and methodologically
pluralist scholarship. The existing literature directly facilitates this effort
through attention to relevant questions and development of practice-relevant
theory. In short, there are numerous benefits of looking back and acknowl-
edging existing insight as researchers seek to look forward to new approaches.
How, then, might these objectives best be advanced? The ESL initiative would
benefit from concerted efforts to foster theoretically explicit contributions,
embrace diversity, and encourage practitioner input.
 International Relations and ESL 67
First, as ESL seeks to rectify specific perceived shortcomings with existing
legal structures, it should seek to do so in as theoretically explicit and precise a
fashion as possible. The initiative is certain to engender new approaches, views,
and architectures. However, rooting these, wherever possible, in well-established
theoretical understandings will help scholars to convey their expectations and
reasoning with one another. Additionally, generally accepted theoretical
framings and plain language can promote clarity, comprehensibility, and
precision in new analytical terrain.
Second, as ESL pursues a revolutionary legal frontier, it should be pur-
poseful in its efforts to embrace diversity and the benefits of including
insights from diverse peoples, geographic regions, and theoretical traditions.
While both IL and IR have historically been criticised for a lack of diversity
(Hoffmann, 1995), both have increasingly sought to incorporate the
vibrancy and benefits of diverse perspectives (Coombe, 2001). Similar
objectives are widely articulated in the ESG community (Biermann and
Gupta, 2011). However, the current structure of the community presents the
potential for fragmentation and isolation: ESL is currently explored only by
a focused community of researchers in a task force (ESG, n.d.). As interest
surrounding ESL increases and the subject receives more mainstream atten-
tion among ESG scholars, the initiative should embrace – and its advocates
should actively solicit –input from participants throughout the community,
within and among disciplines, and across researcher backgrounds. Doing so
will advance an effort that is coloured by non-legal disciplinary perspectives,
informed by diverse world-views, and best equipped to fulfil its articulated
objectives.
Third, ESL should actively pursue engagement and exchange with
practitioners. Just as IR and IL have fundamentally pursued insights that
bear practice relevance, this initiative seeks, at its core, to reshape existing
legal structures and practices in fundamental ways. For this to occur, the
insights of practitioners from within dominant systems can help to under-
stand what works well, what does not, and how new ideas can be made
meaningful to those beyond academia. Just as ESG scholars have advo-
cated more active incorporation of practitioner perspectives (Biermann et
al., 2019), ESL must embrace these insights. Moreover, scholars should
remain mindful of the ultimate objective of practice relevance in their
work, particularly when examining existing theoretical approaches. As
ESL develops and evolves, its analysts can intentionally consider and
articulate how the insights of theory can be leveraged to inform practice
and remain accessible to non-academics.
Collectively, these three recommendations (pursuing theoretical precision,
advocating for diverse engagement, and seeking practitioner input and prac-
tice relevance) are closely linked with the broader objective of grounding ESL
in existing disciplinary insights. Together, these efforts can support the objec-
tives, enthusiasm, and promise surrounding the emergent approach, and they
can promote a vibrant, inclusive research effort.
68 Mike Angstadt
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5 An Earth system science-based
perspective
A foundational feature of Earth system law
Edgar Fernández Fernández

Introduction
As a concept, Earth systems law (ESL) is in its initial stages of construction.
Scholars are still at the point of making proposals and debating about what
can fit into it. However, at this stage of its development, one feature that can
already be clearly identified is that the emergence of this so far undefined
concept has been largely influenced, consciously or unconsciously, by a per-
spective grounded on insights from Earth system science, hereinafter the
Earth system perspective.
First, it is necessary to recall that the Earth System Governance Project
(ESGP) originated in the framework of the Earth System Science Partnership
(ESSP), and more specifically as part of one of the four international global
change programmes that composed the ESSP: the International Human
Dimensions Programme on Global Environmental Change (IHDP). The ESGP
was the social sciences response to the ESSP initiative aimed at developing an
ethical and strategic framework for global stewardship and management of the
Earth system management (Biermann, 2007).
An Earth system science perspective was already at the core of the concept of
Earth system governance (ESG) that was introduced in the first Science and
Implementation Plan of the Earth System Governance Project (Biermann et al.,
2009). This perspective was implicitly expressed through the concept of Earth
system transformation, used to describe the influence of human activity on the
planet’s biological, geological and chemical systems, and including the possibi-
lity of fundamental and irreversible change in these systems (ibid.). Earth system
transformation was a central element of the definition of ESG, defined as:

The interrelated and increasingly integrated system of formal and informal

rules, rule-making systems, and actor-networks at all levels of human society
(from local to global) that are set up to steer societies towards preventing,
mitigating, and adapting to global and local environmental change and, in
particular, Earth system transformation, within the normative context of
sustainable development.
(ibid., p. 22)

DOI: 10.4324/9781003198437-7
 An Earth system science-based perspective 73
Second, several concepts that emerged from progress on Earth system science,
like the Anthropocene, planetary boundaries and the safe operating space for
humanity, have inspired legal scholars and served as entry points for them to
question the adequacy of contemporary law, mostly international and inter-
national environmental law, to the new realities and challenges associated
with human-caused global changes. The emergence of the concept of ESL
stems in great part from such reflections, e.g., on the implications of the
Anthropocene and planetary boundaries for international law and policy for
social-ecological security (Ebbesson, 2014); on how to rethink global envir-
onmental law and governance as a result of the Anthropocene (Kotzé, 2014);
and on how environmental law and governance could be reimagined to better
mediate the human environment interface in the Anthropocene (Kotzé, 2017).
Along the same lines (and see Chapter 14 in this volume by Magalhães),
Magalhães presents different legal perspectives on contributing to keep the
Earth system in a Holocene-like state (Magalhães, 2016b), such as those of an
Earth-centred law and governance (Bosselmann, 2016); possible legal tools to
operationalise a new Anthropocene environmental law (Aragão, 2016); the
recognition of the Earth system as a UNESCO Natural Intangible Endan-
gered Heritage; the transformation of the United Nations Trusteeship Council
for the purpose of governing and managing the whole Earth system (Chandra
Gautan, 2016); an Earth condominium as a legal model for the Anthro-
pocene (Magalhães, 2016a), and a proposal for a Safe Operating Space of
Humankind Treaty (Magalhães, 2016b). Similar reflections have led to other
proposals such as a declaration on planetary boundaries (The Planetary
Boundaries Initiative, 2011) and a framework convention on planetary
boundaries (Fernández Fernández and Malwé, 2017).
A general initial conclusion of legal scholars engaging in this new
research field is the mismatch or inadequacy of international environmental
law to the challenges posed by the capacity of humans to provoke changes
in key processes for the functioning of the Earth system. In this line of
thought, Stephens (2019) points out the need for international environ-
mental law research to turn its attention to the insights provided by Earth
system science and by the ESG literature and, on this basis, to re-examine
and reimagine international environmental law’s objectives.
This chapter examines the importance of considering Earth system science as
a foundational feature of ESL. It first identifies the main insights and paradigms
that have emerged from, or are being confirmed by, Earth system science, parti-
cularly related to the understanding of the way the Earth functions as a whole,
the extent of which humans have already altered and how much they could
continue to modify the functioning of the Earth system, and the possible con-
sequences of such human-caused changes. It then contrasts the elements of this
Earth system perspective with some features of contemporary law in order to
assess the integration (or not) of this perspective into contemporary law. It con-
cludes by highlighting the interests that such integration may have and by
describing what some characteristics of the resulting ESL might look like.
74 Edgar Fernández Fernández
Earth system science: a new scientific domain source of new paradigms
In 1986, NASA published the seminal report, which established an agenda for
Earth system research. The same year, the International Council for Science
(ICSU) launched the International Geosphere-Biosphere Programme (IGBP)
with the intention of describing and understanding the various physical, chemi-
cal and biological processes regulating the Earth system, its environmental
attributes and the changes occurring within it, and the extent to which these were
influenced by human activity (NASA Advisory Council, 1988).
Thanks, among others, to the extraordinary scientific progress that makes it
possible to monitor the planet, by both remote sensing and in-situ measure-
ments, and to run complex data models, Earth system science was able to
emerge as a new scientific domain for studying the Earth system as a whole,
leading the way to what has been called a second ‘Copernican’ revolution
(Schellnhuber, 1999). In spite of the uncertainties surrounding the concept of
Earth system science (Journée d’études EHESS, 2018), it can be defined as the
scientific domain that, bringing together chemistry, physics, biology, mathe-
matics and applied sciences, transcends the boundaries of academic fields by
treating the Earth as an integrated system of biological, physical, chemical
and human interactions, all of which have affected and will affect the state of
the Earth (Ruzek, 2018).
Insights from the work on Earth system science have been expressed,
including in the 2001 Amsterdam Declaration on Earth System Science
(International Geosphere-Biosphere Programme, 2001), the book, Global
Change and the Earth System: A Planet Under Pressure (Steffen et al., 2004)
and the ‘State of the Planet Declaration’ (Brito and Stafford-Smith, 2012).
New paradigms have emerged from, or been confirmed by, Earth system
science. Two of the most important and comprehensive ideas that underpin
an Earth system perspective are the views that the Earth behaves as a single
complex, integrated system and that humans have become a major driver of
change on the scale of the Earth as a whole. Furthermore, the combination of
these two views has resulted in Earth system scientists warning about the
potential deleterious and irreversible implications of human-driven changes
on the scale of the Earth as a whole for human societies and their planetary
life support system.

A new perception of the Earth: the Earth as a single complex, integrated

system
Progress in understanding the natural dynamics of the Earth system has evi-
denced a series of features that are commonly attributed to complex systems
(for a description of features of complex systems, see McDaniel and Driebe,
2005), such as the existence of nonlinear interactions between its components
at multiple time and spatial scales, feedback mechanisms, spontaneous self-
organisation, emergent systemic properties, thresholds and abrupt changes.
 An Earth system science-based perspective 75
Nonlinearity of interactions, and, therefore, the absence of cause-effect relation-
ships, result in a large degree of uncertainty and unpredictability, as well as in the
occurrence of surprises. Teleconnections are a special feature of the Earth system
since different processes occurring in very distant places can interact in unpre-
dictable ways to produce a given outcome at a specific location or at the scale of
the Earth system as a whole (Steffen et al., 2004).
The conceptualisation of the Earth as a complex system is also linked with
the view that the natural state of the Earth is not that of a single stable
equilibrium. Observations of the last 420,000 years based on paleo evidence,
namely, the Vostok ice core data, have demonstrated regular patterns of
variability, alternating between glacial and inter-glacial states, rather than a
single steady state of equilibrium (Steffen et al., 2006).
There is some contention regarding the notion of the Earth as a self-reg-
ulating system in which the interactions and feedback of the component parts
demonstrate complex and multi-scale variability over time and space (Inter-
national Geosphere-Biosphere Programme, 2001), as well as being a single yet
complex, self-regulated and integrated system (Brito and Stafford-Smith,
2012; Steffen et al., 2006; Steffen et al., 2015; Steffen et al., 2016). Impor-
tantly, for Earth system scientists, both life in all its forms and, distinctively,
humans, are an integral part of the Earth system, along with its natural pro-
cesses, biological, chemical or physical, and including the global economy
and society (Brito and Stafford-Smith, 2012; International Geosphere-Bio-
sphere Programme, 2001). Together, these systems, processes and interactions
create the planetary scale cycles that affect the atmosphere, cryosphere, bio-
sphere and geosphere, as well as what has been termed the anthroposphere
(human activities) from the local, the global and across time; together all
these contribute to the environmental condition of the Earth and its place in
the universe (Rockström et al., 2009).

A new scale of human-driven change: the scale of the Earth as a whole –

the Earth system
An explanation commonly found in Earth system science literature is that,
throughout almost all of its existence, the human species has transformed its
environment at the local to the regional scales the most, but that it has not
been until very recently that this transformation has also been taking place at
the scale of the Earth as a whole – hereinafter also the scale of the Earth
system (Steffen et al., 2006). The idea of the environment at a planetary level
has sometimes been used in contrast to the local and regional environments,
and has been connected to the Earth’s seasons, the variabilities of climate and
weather, as well as the increase and decrease of riverine and glacial systems,
and the richness in diversity of all varieties of life forms (ibid.). This new
phenomenon of human-driven transformation at the scale of the Earth
system, which comes in addition to the two traditional sources of transfor-
mation at this scale – the great forces of nature and extra-terrestrial
76 Edgar Fernández Fernández
phenomena – is commonly referred to in Earth system science literature as
global change (ibid.). However, the concept of global change is sometimes
used instead to refer, in a more general way, to transformation at the scale of
the Earth system as a whole, independent of the origin of its causes.
Through evidence accumulated over the years, Earth system science has
contributed to demonstrate that human-driven changes at the scale of the
Earth system are far from being minor, including from a geological time
perspective. One of the major findings in Earth system science is the evidence
that ‘the Earth is currently operating in a no-analogue state’ as a consequence
of human-driven changes: not only has the Earth moved beyond the natural
variability over the last 500,000 years, these changes are also occurring at an
unprecedented rate and scale across the Earth system (International Geo-
sphere-Biosphere Programme, 2001). Not surprisingly, in terms of its scale,
humanity’s impact on the Earth system has been compared to the planetwide
geological effects of past ice ages (Brito and Stafford-Smith, 2012).
As a consequence of the consideration in the Earth system science com-
munity of the already existing and still growing extent and rate of impacts of
human activities at all scales, including the global scale, the use of the term
Anthropocene was proposed to designate the current geological epoch in
which humanity has become the major geological force of the planet (Crutzen
and Stoermer, 2000). Since the concept was proposed, much has been written
about the Anthropocene on many varied aspects, such as its starting date –
initially proposed as the latter part of the eighteenth century (ibid.) – the
failure to take into consideration inequalities within the human species held
responsible for the current changes in the Earth system (Malm and Horn-
borg, 2014), and the distinction between different perspectives from which the
Anthropocene has been defined, most notably the Earth system science and
geological perspectives (Steffen et al., 2016).
The basic idea behind the concept is that humans have left the Holocene –
the relatively stable geological epoch of the last 11,700 years in which
humans were able to evolve from hunter-gatherers to contemporary modern
civilisations – and moved into the Anthropocene. From a geological per-
spective, this shift needs to be demonstrated by evidence of a signature in
recent and currently forming geological deposits that is distinct from those
of the Holocene and earlier epochs, which will remain in the geological
record; while, from an Earth system perspective, the concept is based on
the view that human forces have pushed the Earth system beyond the
Holocene envelope of natural variability to such an extent that the nega-
tive feedback that used to keep the Earth system within the Holocene
basin of attraction has already been exceeded (ibid.). From both perspec-
tives, the beginning of the Anthropocene could be situated around the
mid-twentieth century, which coincides with an overwhelming increase in
human-driven impacts on a number of environmental parameters, known
as the great acceleration (ibid.).
 An Earth system science-based perspective 77
Earth system thresholds and abrupt changes: possible catastrophic and
irreversible consequences for human societies
The combination of the two above-mentioned pieces of evidence – the Earth
as a single complex, integrated system and humanity as a major driver of
change at the scale of the Earth system – enables Earth system scientists to
anticipate that human impacts may have possible catastrophic consequences
for the functioning of the Earth system, on which human well-being and
survival depend. In this way, the evidence that the Earth is currently operating
in a no-analogue state as a consequence of human-driven changes to some key
environmental parameters of the Earth system, combined with the evidence that
Earth system dynamics are characterised by critical thresholds and abrupt
changes, makes Earth system scientists conclude that human activities can
switch the Earth system to alternative modes of operation which may be inhos-
pitable to humans and other forms of life (International Geosphere-Biosphere
Programme, 2001).

Key processes for the functioning of the Earth system: interdependencies

and nonlinear cross-scale interactions and feedback
As mentioned above, since its origins in 1986, Earth system science research
has focused on studying in an integrated manner both the processes that reg-
ulate the Earth system as a whole and the interactions between those pro-
cesses. Building on that research, in 2009 and 2015, the planetary boundaries
framework (PBF) identified nine key biophysical processes that determine the
ability of the Earth system as a whole to function within the Holocene range
of variability. These processes – also referred to in the framework as bound-
aries or planetary boundaries, since for each one of them the authors
attempted to define a quantified planetary boundary – are the following:

1 climate change
2 changes in biosphere integrity
3 stratospheric ozone depletion
4 ocean acidification
5 biogeochemical flows other than carbon (as phosphorus and nitrogen)
6 land system change
7 freshwater use
8 atmospheric aerosol loading
9 novel entities (Rockström et al., 2009).

In other words, the Earth system’s biophysical processes both determine the
capacity of the planet to regulate itself, and maintain stability (ibid.; Steffen
et al., 2015).
The PBF constantly stresses the existence of interdependencies and non-
linear cross-scale interactions and feedback (i.e., cross-scale complexity)
78 Edgar Fernández Fernández
between key biophysical processes for the functioning of the Earth system.
When taking into consideration these circumstances, it is important to
understand the different temporal and spatial scales at which Earth system
processes operate.
At the temporal scale, the PBF stresses the complex interconnections
between fast processes and feedback (e.g., the loss of Artic sea ice) and slow
processes and feedback (e.g., the loss of land-based polar ice sheets). Regarding
the spatial scale, the framework distinguishes the Earth system or planetary
scale – which includes the continental or continental/ocean basin scale – from
the sub-Earth system, or sub-global scale. The former category includes large-
scale Earth system processes, such as climate change and stratospheric ozone,
while the latter comprises other biophysical processes that affect the resilience
of the sub-systems of Earth, as well as the Earth system in its entirety, such as
land system change, freshwater use, changes in biosphere integrity, and changes
in other biogeochemical flows in addition to carbon, e.g., nitrogen and phos-
phorus. These are slow planetary-level bio-physical processes, and include land
and marine systems for which there is no threshold behaviour at the Earth
system scale, but which nevertheless contribute to planetary resilience by acting
as carbon sources and sinks, which regulate water, nutrients and minerals
(Rockström et al., 2009; Steffen et al., 2015).
Two of the processes, one at the Earth system and another at sub-Earth
system scales, have been identified by the authors of the framework as core
boundaries: climate change and biosphere integrity. The integrity of the bio-
sphere (understood as the totality of biotic life within freshwater, marine, and
terrestrial ecosystems) is also critical to the functioning of the Earth system.
The biota within these ecosystems is crucial for determining the Earth sys-
tem’s state, as they regulate material as well as energy flows and how they
respond to both abrupt and gradual change (Steffen et al., 2015). Based on an
analysis of the many interactions between the key biophysical Earth system
processes, the authors of the framework concluded that these two processes
have co-evolved over a period of four billion years, and that while other
boundaries regulate them, they also constitute overarching systems at the
planetary level, and that other boundary processes act within them; conse-
quently, any major impacts on either the climate or the biosphere could in and of
themselves move the planet out of the Holocene. The framework also recognises
the regional scale as being critical to Earth system functioning. These critical
regions vary according to the contribution they make to processes in the Earth
system, and include:

1 land-based biomes, large (sub-global) freshwater and marine ecosystems

(for biosphere integrity);
2 major (sub-global) river basins’ level (for freshwater flows and use);
3 forest biomes (for land system change);
4 zones of intensive agricultural activity (for phosphorus and nitrogen
cycling).
 An Earth system science-based perspective 79
Significant changes at the sub-system level can impact the functioning of the
Earth system as a whole (ibid.). The PBF consequently demonstrates the global
dimension of processes that legal frameworks have conventionally perceived as
mattering, exclusively or mainly, at a local to regional scale, i.e., processes that
have not traditionally been perceived as important to the functioning of the
Earth system as a whole, though as a global concern in this sense. According to
this line of thinking, the above-mentioned concept of critical regions for Earth
system functioning could be useful in integrating an Earth system approach
when designing and reshaping legal frameworks with the view of establishing
concerted and cooperative efforts in a more holistic way. Many of these regions
fall inside national jurisdictions, which poses challenges to international law
due to the pre-eminence of the principle of national sovereignty.
The example of forest biomes (tropical, temperate and boreal) is informative.
The PBF highlights in particular the significant feedback that tropical and boreal
forests have within the climate system, as well as the strong regional and global
teleconnections they have, including the effects of deforestation in the Amazon on
climate and water resources in Asia. The boreal forests and the Amazon rain-
forest have also been considered as forming part of a number of so-called tipping
points, or tipping elements, or climate tipping points in the Earth system (Lenton
et al., 2008; Lenton et al., 2019; Schellnhuber, 2009). Other sites for feedback
include the Artic sea ice, the Greenland ice sheet, the West Antarctic ice sheet, the
Atlantic thermohaline circulation, the El Niño Southern Oscillation, the Indian
summer monsoon, the Sahara/Sahel and West African monsoon. Some of these
subsystems, although sub-continental in scale, can nevertheless be changed
into a qualitatively different state by small perturbations under particular
conditions (Lenton et al., 2008). Based on the concept of tipping points, it has
been suggested that a planetary threshold might be around 2°C above pre-
industrial temperature because of the risk that important tipping elements
could be activated at that level of warming, further increasing temperatures and
activating other elements in a cascade effect resulting in the Earth system
triggering yet higher temperatures (or tipping cascades) (Steffen et al., 2018).

Integration of an Earth system perspective into contemporary law

Having reviewed some of the basic insights and paradigms from Earth system
science, which are all elements of what is understood to be an Earth system
perspective, this chapter now investigates whether these elements have already
been integrated (or not) into contemporary legal frameworks at the international
level. By doing so, it may be possible to determine whether contemporary law
already belongs to the category of Earth system law. First, it is necessary to
determine if the interdependent and interacting Earth system processes have
been addressed in an integrated way, i.e., as part of an integrated system; and,
second, if the nonlinear nature of those interactions, including their possible
consequences, such as the transgression of thresholds – i.e., the complexity of the
system – has been taken into account.
80 Edgar Fernández Fernández
Addressing (or not) interdependent and interacting Earth system processes in
an integrated manner
The 2018 report by the United Nations (United Nations Secretary-General,
2018) noted that international environmental law is both reactive and pie-
cemeal, and is typically fragmented, incoherent and lacking in any form of
synergy between the various regulatory frameworks at the intergovern-
mental level. This in turn results in poor coordination in terms of policy
implementation, and a great effort is required to overcome these deficits by
ensuring law-making becomes more mutually supportive (ibid.). This lack of
coherence and synergy among environmental instruments, as well as the
lack of articulation between them and what the report refers to as environ-
ment-related instruments (e.g., trade instruments, investment instruments,
intellectual property instruments and human rights instruments), are exam-
ples of the lack of consideration of the Earth as an integrated system, and of
the need to treat it as such. What is symptomatic of the problem is not
merely the existence of fragmentation, but, most importantly, the absence of
means to establish links between the different instruments and to give a
holistic overview and understanding of such links.
By emphasising the existence of interdependencies and cross-scale interactions
and feedback (i.e. cross-scale complexity) between key biophysical processes for
the functioning of the Earth system, Earth system science provides the scientific
grounds for law to adopt a unified, coherent and integrated approach to issues
that traditionally have been addressed, at the best, on a sectoral basis (e.g. cli-
mate, biosphere integrity, stratospheric ozone layer depletion), or that have not
been substantially addressed at all (e.g. ocean acidification). However, integra-
tion of an Earth system perspective would require that multiple environmental
problems are simultaneously dealt with (stabilising the climate, for example,
requires sustainable forest management) (Steffen et al., 2015) and, it is added
here, in an integrated and coherent manner. Introducing such a perspective in
multilateral environmental agreements (MEAs) and their frameworks would
help to avoid and reduce environmental problem shifting, i.e., when decisions
or actions aimed at avoiding or reducing the impacts of human activities in a
given area can result in unintended negative consequences in another (Kim
and Bosselmann, 2013).
Climate change is a global problem and a global concern (see Chapter 14
in this volume by Paulo Magalhães). In the preamble of the United Nations
Framework Convention on Climate Change (UNFCCC), the parties
acknowledged that both the global nature and its adverse effects were a
common concern of humankind (United Nations, 1992b). One could be
tempted to conclude that because it concerns a biophysical process that
operates at the scale of the Earth system, the UNFCCC would be a typical
example of ESL. However, one reason why such a conclusion would be wrong
is that in focusing primarily on anthropogenic greenhouse gases, the only
importance it recognises to terrestrial and marine ecosystems is as sinks and
 An Earth system science-based perspective 81
reservoirs of greenhouse gases. Furthermore, it does not take into account the
need to consider in a more holistic manner other Earth system processes
that are also important for the resilience of the Earth system in the face of
increasing atmospheric concentrations of greenhouse gases. In this way,
climate change – and its corresponding climate system – are considered in
isolation and not as part of the wider Earth system.
There have recently been some necessary but insufficient steps towards the
integration of a more holistic approach to addressing issues related to key
Earth system processes. The Conference of the Parties (COP) of the
UNFCCC, at its twenty-fifth session in Madrid (December 2019), stressed the
importance of nature in dealing with the impacts of climate change, as well as
the need to tackle both climate change and biodiversity loss in an integrated
way. A less explicit recognition was made regarding the ocean. Although the
ocean was identified as being integral to the Earth’s climate system, and
necessary to ensure ocean and coastal ecosystem integrity, this was only in the
context of commending the conference president for highlighting its impor-
tance during the course of the COP (UNFCCC, 2019). In the same year, the
Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA)
of the Convention on Biological Diversity (CBD) also recommended to the
parties of the convention that they should adopt a decision on biodiversity
and climate change at their COP (in Montreal, 25–29 November 2019),
similarly noting the interconnection between climate change and biodiversity:

Biodiversity loss, climate change, desertification and land degradation are

inseparable and interdependent challenges of unprecedented severity that
must be coherently and consistently addressed urgently in an integrated
manner in order to achieve the goals of the post-2020 global biodiversity
framework and the Paris Agreement.
(SBSTTA, 2019, p. 2)

The same recommended decision was explicitly aimed at preventing problem-

shifting between the climate and biodiversity conventions. In this regard, it
notes that ‘nature-based solutions with biodiversity safeguards are an essen-
tial component of ecosystem-based approaches to climate change adaptation,
mitigation and disaster risk reduction’ (ibid., p. 1). The recommended deci-
sion’s preamble also recognises a number of activities which simply shift the
environmental problems from one location to another, such as replacing sub-
sistence agriculture and natural forests with plantations for the cultivation of
bio-energy sources, with all the consequential negative impacts on livelihoods,
water and food availability and the creation of social conflict. These serious
issues were couched, however, in classic UN-style (when matters of contention
arise) and placed in square brackets to indicate that not all parties agreed to
this text. SBSTTA further encouraged the parties, when designing and
implementing climate change adaptation, mitigation and disaster risk reduc-
tion measures, including ecosystem-based approaches, to make use of the
82 Edgar Fernández Fernández
voluntary guidelines when designing and implementing ecosystem-based
approaches adapting to climate change and reducing the risks of disaster, and to
‘identify and maximise potential synergies and promote the positive and
minimise or avoid the negative impacts on biodiversity’ (ibid., p. 4).
However, from the political side (as the square brackets indicate), certain
states have clearly expressed their opposition to go further in implementing
integrated approaches between MEAs. These are reflected in statements made
by the US in its submission of April 2019 to the Co-Chairs of the Working
Group charged by the UN General Assembly with developing the material
necessary for ‘moving towards a global pact for the environment’ (United
Nations General Assembly, 2018):

Nor should we seek to engineer an outcome that simply creates new

layers of bureaucracy in the name of seeking undefined ‘synergies’ among
existing regimes, for example, by creating elaborate new mechanisms or
processes for joint action by treaty secretariats … While there are many
positive current avenues for information sharing and cooperation – for
example, participation of observers and information sharing channels –
we do not see a value and have not seen any shared sense among member
states that a top-down synergies effort is needed.
(US Government, 2019, p. 2)

It is hoped that with the recent change in administration the US will soften this
hard-line stance, but the politicisation of the environment may lead to ongoing
problems at the global level when it comes to integrative and consensus-seeking
frameworks in addressing the global climate and biodiversity crises.

Taking (or not) into account nonlinearities and thresholds in the Earth system
As mentioned above, the conceptualisation of the Earth as a complex system
is fundamentally linked to the evidence that the natural state of the Earth is
not that of a single stable equilibrium, but rather one of a wide range of
variability, nonlinearities, and potentiality for abrupt changes and transgres-
sion of critical thresholds (Steffen et al., 2006). This is a very important
characteristic to take into account when considering if contemporary law is
well suited to address the new challenges associated with human-driven
changes in the key biogeochemical processes of the Earth system, including
the increasing risks of crossing thresholds at continental to global scales.
Arguably, contemporary law – including (international) environmental
law – has been grounded in a totally different vision of how natural systems
function: an equilibrium-centred paradigm, where natural systems are expec-
ted to return to equilibrium some time after the perturbation has ceased. This
view does not take into consideration that ecological systems are complex
systems with characteristics such as those previously mentioned, including
nonlinear interactions, thresholds and abrupt changes. The dominance of the
 An Earth system science-based perspective 83
equilibrium-centred paradigm has been particularly true for the Earth system
as a whole, because it has been commonly assumed that human activities and
their negative impacts on the environment take place ‘within an overall
envelope of well-buffered global stability’ (Steffen and Springer, 2005, p. 235).
It has been mainly American scholars who, centring their analysis on the US
environmental law developed in the 1960s and 1970s, have pointed out a funda-
mental mismatch between the assumptions behind environmental law – and
therefore the law itself – and the nonequilibrium paradigm in ecology (Tarlock,
1993), the complex adaptive systems nature of the subject matter of environ-
mental law (Ruhl, 1997), a dynamic world (Doremus, 2010), ‘a world of con-
tinual, unpredictable, and nonlinear transformations of complex systems’ (Craig,
2010, p. 9), the dynamics of ecological systems (Arnold and Gunderson, 2013), or
the reality and the tenets of resilience theory (Garmestani et al., 2013).
The traditional inclusion of the maximum sustained yield in international
instruments of hard and soft law as an objective to achieve for natural
resources’ exploitation is an example of the pre-eminence of the equilibrium-
centred paradigm, because this concept carries ideas of optimisation and
maximisation that are not well suited for managing non-linear systems (Hol-
ling, 1996). Such an objective can be found in legal texts, ranging from
international conventions on fisheries, like the International Convention
between the United States of America, Canada and Japan for the high seas
fisheries of the North Pacific Ocean, to the World Charter for Nature.
No evidence of taking into account the complex system nature of the Earth
system, or at least of its subject matter, the climate system, is found in two of
the most global MEAs: the UNFCCC and the Paris Agreement. They do not
make any reference to the complex nature of these systems, to the nonlinear
character of the interactions and feedback between the components of the
system, nor to the possibility of crossing critical thresholds and provoking
abrupt changes. The UNFCCC certainly notes in its preamble ‘that there are
many uncertainties in predictions of climate change, particularly with regard
to the timing, magnitude and regional patters thereof’ (United Nations,
1992b, p. 2), and includes the precautionary approach among the principles of
the convention but does not recognise these uncertainties as an intrinsic feature
of the climate system that derives from its nonlinear nature.
Finally, no evidence of an Earth system approach is found either in the
utilisation of a very similar but different concept to the Earth system that has
sometimes been used in political declarations: the Earth’s Ecosystem.
According to principle 7 of the Rio Declaration on the Environment and
Development: ‘States shall co-operate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the Earth’s ecosys-
tem’ (United Nations, 1992a, p. 2). In a similar way, paragraph 40 of the
outcome document of the United Nations Conference on Sustainable Devel-
opment (also referred to as the Rio+20 Summit), ‘The Future We Want’
called ‘for holistic and integrated approaches to sustainable development that
will guide humanity to live in harmony with nature and lead to efforts to
84 Edgar Fernández Fernández
restore the health and integrity of the Earth’s ecosystem’ (United Nations
General Assembly, 2012, p. 8). Despite these two references, there is no clarity
of what the Earth’s ecosystem and its health and integrity mean, nor are these
concepts defined anywhere. Furthermore, this simple reference to the Earth’s
ecosystem and its health and integrity does not necessarily imply the recognition
and understanding of the Earth as a complex system. It gives no hints on how
the Earth’s ecosystem and its underlying processes behave. Finally, while the
concept of the Earth system includes humans among its components, the Earth’s
ecosystem excludes them.

Conclusion
The above analysis tends to show that an Earth system perspective is missing in
contemporary law, including in international environmental law. It has been
pointed out that a disconnect exists between law and Earth system science
(Kotzé and Kim, 2019). One reason for this could be that most existing multi-
lateral environmental agreements and environment-related instruments were
conceived at a time when Earth system science did not yet exist or was, at best, in
its initial stages. Integrating an Earth system perspective into law is nevertheless
urgently needed at a time when enough progress has been made in Earth system
science to better understand the functioning of the Earth system and the nature
of the risks that humanity will inevitably face if a linear approach to Earth
system change continues. Integrating an Earth system perspective into existing
legal frameworks would result in this much-needed, new type of law, called, in
this book, Earth system law.
This integration of an Earth system perspective into contemporary law may
have a particular interest for human societies, since it could contribute to
avoiding the transgression of critical thresholds, and the occurrence of abrupt,
catastrophic changes, at the level of the Earth system. Taking into con-
sideration the extent of the risks that human societies face as a consequence
of human-driven changes to the Earth system, it seems at least reasonable
that the integration of such a perspective should be seriously considered.
If it is agreed that an Earth system perspective is a foundational feature of
ESL, then ESL should mirror the basic elements of this perspective. This has
implications for distinguishing ESL from traditional environmental law. Ulti-
mately, the object of ESL transcends the sectoral, linear, equilibrium-centred
approach that traditional environmental law has applied to environmental
processes at all scales, even those that are global in nature, such as climate
change: it is about maintaining a state of the Earth system that can sustain
human societies as currently understood (i.e., the planetary conditions for
achieving universal objectives, such as those enshrined in the Charter of the
United Nations and the UN Sustainable Development Goals); about main-
taining, within their natural range of variability, the underlying interacting
nonlinear processes that determine such a state of the Earth system that is
favourable for the life and well-being of contemporary human societies; and
 An Earth system science-based perspective 85
about regulating the human activities that drive undesirable changes in those
processes and the state of the Earth system.
Despite its planetary focus, ESL is multi-scale, as it needs to address
simultaneously and in a coherent and integrated manner multiple environ-
mental and social processes that are interdependent and that interact at mul-
tiple scales of time and space, including from the local to the planetary scales.
Here, the intrinsic link of ESL not only with Earth system science, but also
with ESG is more than evident.
For all the above-mentioned reasons, moving into the dimension of ESL
would imply actions and considerations, such as the adoption of a common
global overarching objective of international law, that identifies and aims to
protect a desirable state of the planet for humanity. There is clearly a need for
regulatory frameworks and institutions not to focus on processes separately,
but to address them simultaneously, in an integrated and coherent manner.
The establishment of an intergovernmental panel of experts on the Earth
system, that operates at the interface between science and policy, similar to
the IPCC (Intergovernmental Panel on Climate Change) and the IPBES
(Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem
Services), and works in collaboration with such bodies is clearly also neces-
sary. Just as due consideration must be given to the interaction of key bio-
physical processes for the functioning of the Earth system, so too must
recognition be given to the same reality in the political realm of global
environmental governance.

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6 The ESL framework
Re-visioning in the age of transformation
and the Anthropocene
Margot Hurlbert

Introduction
In this chapter, the Earth system governance research (ESG) framework
(Biermann et al., 2010) is re-envisioned in a critical realist Earth system law
(ESL) framework. By illustrating the ESG research lenses, the contextual
conditions of transformations, inequality, the Anthropocene and diversity are
explored. An argument is created that the Earth system research lenses can be
explored across the dialectic of positivism and constructivism. First, the Earth
system legal framework provides a heuristic to organise and contemplate the
Earth system and the law’s operation within it. The re-envisioning of the ESG
framework to create the ESL framework aids in addressing limitations in each of
the positivist and constructivist research approaches. The contemplation of both
a jurisprudential positivist study of law with a constructivist study of law
addresses the limitations of each. By considering the full spectrum, the
possibility of transformation of law in and for the Anthropocene emerges.
A need has been identified for law and its scholarship to evolve for relevance
within what some argue is a new geological epoch of the Anthropocene, where
humans have produced a stratigraphic signature in sediments and ice distinct
from the Holocene epoch (Waters et al., 2016). The term ‘Anthropocene’ is
derived from anthropos, from the ancient Greek for human (Zalasiewicz et al.,
2015). Its indicators include: the Earth’s position at the precipice of the sixth
extinction; radioactive fallout embedded in sediments of the Earth since the
1940s; and the fact that the broiler chicken is the largest standing stock of any
other bird species on the planet, estimated at 22.7 billion in 2016 (Bennett et
al., 2018). This time scale includes but also transcends the duration of anthro-
pogenic climate change (Castree et al., 2014). The era of the Anthropocene is a
concept that exposes the magnitude of humanity’s impact on socio-ecological
systems, now so great that humans are altering the basic Earth system pro-
cesses. The Anthropocene represents a conundrum where humans have become
the central change agent of the Earth, and are responsible for making the
changes that will determine Earth’s future. But much uncertainty exists. Has
humanity already overshot its greenhouse gas footprint wherein global warm-
ing can be maintained at well below 2° Celsius? Can the curve that is the

DOI: 10.4324/9781003198437-8
90 Margot Hurlbert
current trajectory of species extinction be flattened? Can human behaviours,
relations, practices and the supporting architecture of laws be changed to the
degree necessary?
An Anthropocene gap has been identified in relation to law and legal science’s
role in addressing the environmental challenges of the Anthropocene (Galaz,
2014). This was initially explored in a juridical research agenda (Kotzé and Kim,
2019) that concluded that law might not be worthy of the challenge of the
Anthropocene. A comprehensive re-interrogation of the nature, functions and
objectives of the law and its science is required in the Anthropocene’s ‘brave new
dystopian world’ (ibid., p. 3). It is argued here that it is not just the law, but its
study, analysis and imagination that must rise to the challenge. This chapter
embarks on the re-imagination of law and its science, or more aptly, its multiple
sciences, that create, execute, and change it.
Research analysing and addressing complex sustainability challenges,
including environmental harm and climate change, includes natural and social
science in interdisciplinary research processes. Open systems that reflect the
dynamics of Earth biophysical systems and society consist of a multiplicity of
mechanisms and the resultant emergent properties necessitating an epistemic
integration of the knowledge of these mechanisms in the natural and social
world (Olsson and Jerneck, 2018). This epistemic integration involves new
concepts, theories and modes of understandings and many disciplines (Bhaskar
et al., 2010). Compiling an interdisciplinary science is no small task.
In this chapter, ESL is conceived as an enduring social structure, a unique
system (Luhmann, 2004) and a representative manifestation of the society in
which it is situated (Durkheim, 1893). Law both shapes and is shaped by
social practices (Cotterrell, 1995) which regulate human interactions and
impact the non-human world. The Anthropocene gap is more accurately
characterised as a lack of knowledge of which laws, which conception of the
law, and which methodologies of researching the law best respond to the age
of the Anthropocene. To address this gap, this chapter surveys law and society
scholarship, sketching a pluralistic legal research agenda advancing the ESG
research lenses, creating an ESL framework addressing the Anthropocene.
After a brief overview of the chapter’s uniting ontological and epistemological
foundation, a sketch is made of ESL in order to build ESL’s analytical fra-
mework, and multiple methodologies are provided, addressing the various
elements: architecture and agency, democracy and power, justice and alloca-
tion, anticipation and imagination, and adaptiveness and reflexivity.

Setting a unifying foundation for ESL

Often scholars employ a dichotomy between objectivist, positivist (or empiri-
cist) approaches to research and a broad second category of post-positivist,
subjectivist, interpretive, or constructionist approaches to social science
research (Vincent and O’Mahoney, 2018). Objectivist or positivist approaches
resonate with the jurisprudential study of law, where truth for the law is
 The ESL framework 91
normative, non-probabilistic (in the sense either a person has broken a law or
not) and legal decisions are an all-or-nothing process, generally determined by
a judge (Barkun, 1973). Positivist researchers rarely write about the nature of
their research and many researchers treat these philosophical issues and the
technical issues of choice of method simultaneously and occasionally with
confusion (Bryman, 1984).
Another epistemology of social science is that reality is constructed or
experienced and described by the individual. Here the law is a living law.
Subjectivist, interpretive or constructivist scholars believe law connects to
society; for some law has long been conceived as the most important, obser-
vable manifestation of the collective consciousness and its transformation
(Durkheim, 1893) or a manifestation of human decision making, not merely
applied legal rules (for example, the legal realism of Holmes) (Bybee, 2005).
Others view the law to be a living law that is determined and applied by
people in their everyday decisions of how to abide by, invoke, and interpret
the law (Comack, 1999). None of these approaches is correct or wrong, better
or worse, but merely different approaches for seeing how people can acquire
knowledge and make sense of the world. Although for simplicity, this chapter
uses a dialectic between positivist jurisprudential law and constructivist living
law, it is acknowledged that there is a limitation to oversimplifying the depth
and breadth of law and the society scholarship in between.
Critical realism offers a philosophical basis for recognising and acknowl-
edging the diversity of the dialectic spread between positivist jurisprudential law
and constructivist living law. Critical realism allows for a realist ontology (state
of being), recognising the intransitive dimension of the real world that exists
independently of humans’ knowledge of it (Bhaskar et al., 2010). Critical realism
allows for recognition that natural science and some social science employ posi-
tivism, wherein natural or social processes consist of enduring phenomena that
can be identified, analysed and represented (Olsson and Jerneck, 2018).
However, critical realism also allows for the transitive dimension involving
the theories and discourses that represent the world, recognising a relativist
epistemology, a multiplicity of learning and knowledge acquiring, together
with an appeal to judgmental rationality (Bhaskar et al., 2010). It is this
relativist epistemology that allows for the constructivist study of law and
society, such as legal realism and the living law. Recognising the complexity
of ESL, without oversimplifying, trivialising, or reducing and conflating
issues offers a holistic consideration of multiple approaches to social science
(Olsson and Jerneck, 2018) and ESL.
These multiple approaches can be organised by the Earth system and its
governance framework; multiple knowledge systems and multiple realities
function in a pluriverse (Escobar, 2020) of these knowledge systems, realities
and the ontological standpoints of the diverse scholars studying the Earth
system. Critical realism informs the imagining of the Earth system legal
research framework depicted in Figure 6.1. On the left, the research lenses
most amenable to the positivist jurisprudential study of law appear:
92 Margot Hurlbert

Figure 6.1 A critical realist Earth system legal research framework

architecture, democracy, allocation, anticipation, and adaptiveness. On the

right, the research lenses that most align with the approach of constructivist
living law: agency, power, justice, imagination, and reflexivity. In between, the
cross-cutting contextual conditions are recognised, including transformations,
inequality, and diversity.

Exploring the ESL research lenses

This section explores each of the linked research lenses while pointing out
cross-cutting contextual conditions.

Architecture and agency

(a)Architecture
Law is often studied in a jurisprudential positivist manner and this method is
almost exclusively taught in North American law schools. Assumptions of
people as actors making rational choices with full information frame an official
version of the law (Naffine, 1990). The jurisprudential study of law is the insti-
tution judged as perhaps unworthy of the challenge of the Anthropocene (Kotzé
and Kim, 2019). A positivist view of the law supports a vision of Earth system
architecture (Burch et al., 2018) where law is the firm institution that supports
and determines the host of other institutions (organisations, companies, govern-
ments and people) that form an interlocking web of agency or decision making
that is determined, validated and enforced by the law (Luhmann, 2004). Here
norms, values and customs which operate with lesser sanctions than law also
interlock in the web of Earth system architecture.
Luhmann, a legal systems theorist, envisioned the law as a closed system
(meaning a system without external influences). Luhmann endorsed the view
that the practice of law and the dispensation of justice are completely self-
referential, based on statutes, legal decisions and reasoning, with no external
influences. Even new scientific methods of evidence such as the attribution of
 The ESL framework 93
causes of climate change, do not exist within the law until a judge determines
that the methods are credible and applicable. This conception of law is based
on specialised actors and institutions of the legal system using similar logic to
the jurisprudential view of law (Luhmann, 2004). Law does not function so
much to impose one group’s will on others, but is seen to provide the archi-
tecture to control, reconcile, and mediate the diverse and conflicting interests
of individuals and groups within society in order to maintain harmony and
social integration (Vago, 2015).
The architecture of law can advance the adaptation to climate change. Law
can mandate and guide behaviour and influence governance structures and
actors in a manner that fosters adaptation (Scotford et al., 2017). Strong laws
can transpose international commitments for greenhouse gas reductions into
domestic regimes (Townshend and Matthews, 2013) and support the neces-
sary flow of climate finance to developing countries (Nachmany et al., 2017).
The study of these institutions at the global level (Young, 2017), and national
and local level (Hurlbert, 2011), makes important contributions to Earth
systems law.

(b)Agency
Individuals and organisations that operate and negotiate within the legal
system, commencing legal claims, negotiating settlements, and operationalis-
ing laws, affect agency in recreating and transforming the law. Cotterrell’s
living law, previously introduced, regards law as a social structure, both
shaping and being shaped by the society in which it operates; living law is a
set of rules actually followed by individuals in social life (Cotterrell, 1995).
An illustrative example can be found in the highly technical area of water
rights. The determination of water right priorities can be made with a very
technical, legalistic review of interests, dates of licenses, types of use, etc.
However, from an analysis of actual behaviour in times of water access and
priority conflict, rules as to water priorities have been found to be largely
ignored, helping address the inequality of those with or without water rights
(Hurlbert, 2009). One research study conducted interviews with people affected
by water shortages and ascertained the living law or the norms and behaviours
which resolved the specific water conflict. Community practices of sharing and
maximisation of benefits were found to predominate (versus legal priority rules)
(Hurlbert, 2011). This study uncovered the living law of actors in times of
drought and provides an avenue to envision both social and legal change.
Opportunity for agency is created by granting standing to bring legal
actions and developments of administrative law. The granting of legal stand-
ing to marginalised groups’ claims of environmental harm evolved simulta-
neously with the emergence of administrative law, increasingly available on
the global level from 2005 onwards. Administrative principles, procedures and
mechanisms that promote accountability include standards of participation,
openness of decision making, following the rule of law and providing
94 Margot Hurlbert
reasoned decisions capable of review (Kingsbury, 2009). A signal of standing
in the age of the Anthropocene is the granting of river rights in New Zealand,
including rights to flow, be free from pollution and be sustainable (Global
Alliance for the Rights of Nature, 2017).
New frontiers of ESL are being created by important agents of Earth
system litigation. An example is the New York Attorney General who has
sued Exxon for $1.6 billion in damages for fraud in relation to its disclosure
of the economic aspects of climate change (Cooper, 2019). Human rights
claims and tort liability for failure to reduce greenhouse gases are advanced
due to developments in attribution science detecting human influence on
extreme weather, broadening the legal duty of government (Marjanac et al.,
2017), business and others to manage foreseeable harms (ibid.). Citizen suits
in domestic courts are not a universal phenomenon, but are increasing (Setzer
and Byrnes, 2020). Even if unsuccessful (Estrin, 2016), these suits are impor-
tant in underlining the high level of public concern, and may eventually result
in significant damage awards of anything up to or exceeding US$570 trillion
(Heidari and Pearce, 2016).

Democracy and power

(a)Democracy
Research surrounding democracy exposes the exclusion of interests from legal
decision making, and the contextual condition of inequality. An example is
the exclusion from decision making in both Chile and Argentina for anyone
without a legal water right (Hurlbert, 2017). Such exposure can catalyse
institutional change reflected in the recognition of the rights of nature and
advancing climate change law discussed below.
The rejection of Indigenous rights in favour of oil pipelines by the
Supreme Court of Canada in its jurisprudential positivist legal analysis is
illustrative. The Chippewas of the Thames in Canada objected to the
pipeline reversal, capacity expansion, and amendment to carry a less pure
form of oil (crude), arguing that the potential oil spills might harm their
land-based livelihoods of hunting, trapping and fishing rights. The dis-
missal of this claim was problematic since the public interest can meet the
requirements for determining and granting those rights’ constitutional
protection in the first place. Achieving reconciliation is difficult if projects
are approved simply because of the amount of money they bring in or that
they create. In these kinds of framework it is not always possible to
ascertain if the Indigenous perspective on rights, the land, environment, or
ecosystems has been properly taken into account. Generally speaking, the
rights and interests of First Nations appeared to be either ignored or
downplayed in such public interest-based tribunals (Freedman and
Hanson, 2009).
 The ESL framework 95
The National Energy Board rejected the Chippewas’ concerns surrounding
spills by referring to Enbridge’s commitment to safety. The oil economy and
its jobs outweighed the risk to traditional Indigenous livelihoods. This positi-
vist jurisprudential legal analysis illustrates the justice system’s continued
support of corporate commercial public interests to the detriment of both
Indigenous rights, and protection of the environment that would support fish
and wildlife.

(b)Power
Critical legal studies, a constructivist scholarship, recognises that the law is
a site in society that reproduces gender, race and class inequality (Comack
and Balfour, 2004). Jurisprudential positivist law is viewed by critical legal
scholars as a reproduction of dominant thinking about the social world
and a perpetuation of idealised liberalism through law school teachings
and the preoccupation with the rights of the individual. Judges are seen as
perpetuating a particular kind of elitist politics in their decision making,
rationalised by paltry references to precedent case law (or the common
law). The prolonged preoccupation with individual rights fails to account
for social drivers of poverty and low socio-economic status (MacDonald,
2002), or expansion and recognition of rights for flora and fauna.
Critical legal scholars postulate that the law can be either an instrument
of the economically powerful in society to continue to exert their eco-
nomic power, or used by the state in support of the economically powerful
(perhaps through arguments about maintaining the economy and jobs)
(Hunt, 1981). Research has revealed the carbon footprint of the world’s
public and private corporations. The top 20 are responsible for 30 per cent
of global emissions, and almost 70 per cent of industrial emissions since
1751 originate from 108 fossil fuel and cement companies (Climate
Accountability Institute, 2020). In 2018, the top greenhouse gas (GHG)
emitter was Saudi Aramco, a state-owned company at 61,143 MtCO2e,
followed by Gazprom (Russia 44,757), Chevron (USA 43,787), and Exxon
Mobil (USA 42,484) (ibid.).
Consciousness-raising by critical legal scholars and other mechanisms of
societal change (including legal reform) have advanced diversity. In some
countries, the important place of Mother Earth is enshrined in law. Justice
looks quite different if the Earth is the focus, instead of humans and their
relationships as the key consideration. By way of example, in Bolivian law,
the Law of the Rights of Mother Earth of 2010 recognises the rights of
Mother Earth and her constituent life systems, including human commu-
nities (Calzadilla and Kotzé, 2018). Rights include those of life, diversity
of life (for the variety of beings that comprise Mother Earth), water, clean
air, restoration and to live free from contamination (with regards to toxic
and radioactive waste).
96 Margot Hurlbert
Allocation and justice

(a)Allocation
Allocation entails responsibilities, for example, in relation to the climate, the
common atmosphere; in relation to water, responsibilities of supplying water to
meet water rights (Gupta and Lebel, 2010). Allocation also potentially ‘goes
beyond the issue of basic needs and looks at how the remainder of the resources
can best be divided among people’ (ibid., p. 379). In ESL, analysed in a jur-
isprudential positivist manner, there is evidence of transformative change, and
expansion of responsibilities beyond people to include the Earth system.
The inclusion of environmental objects into the system of law has expanded
the legal environmental methodology (Ebbesson, 2003), allowing for an ana-
lysis of law’s protection (Kim and Bosselmann, 2013). In New Zealand, the
Environment Act of 1986 establishes an Environment Commissioner tasked
with maintaining and improving the quality of the environment through a
review of the government. The Commissioner is specifically tasked with the
maintenance and restoration of ecosystems of importance, especially those
supporting habitats or rare, threatened, or endangered species of flora or
fauna (s. 17). In 2017, New Zealand passed the Te Awa Tupua (Whanganui
River Claims Settlement) Act 2017, which recognised the Te Awa Tupua, an
indivisible and living whole comprising the Whanganui River from the
mountains to the sea and incorporating all its physical and metaphysical ele-
ments (section 14 declared the Te Awa Tupua a legal person). This is an
important movement from utilitarian and imperial legal modes towards an
appreciation of the rights of everything that constitutes the Earth, decoloni-
sation and pluralism; nevertheless, while promising, legal recognition of
nature is just a start (Charpleix, 2018).
Environmental courts and tribunals have exploded since 2000 (Pring and
Pring, 2016). These courts specialise in environmental cases with adjudicators
trained in environmental law. This specialisation arguably results in improved
decisions (Stempel, 1995) and better jurisprudential positivist law. Authors
Rühs and Jones document the constitution of Ecuador that implemented the
right of nature (Rühs and Jones, 2016). Legislative recognition is just the
beginning as the recognition of the rights of nature have underperformed,
yielding to a massive foreign debt, reliance on the extraction of natural
resources, anthropomorphisation of nature and seeing nature and humans as
one homogeneous entity, and lack of education of judges in environmental
problems, among others (ibid.). While cases such as Ecuador are promising,
there is still no international environmental constitution (Kotzé, 2014).
Contrary to the common misconceptions that people are individualistic
and selfish by nature, anthropologists have shown that gifting and sharing
have existed as a basis for community relationships in societies around the
world (Keltner et al., 2010). Every human being is entitled to the minimum of
basic goods of life that is consistent with respect for human dignity (Weil,
 The ESL framework 97
2002). A jurisprudential positivist analysis of allocation might consider the
Earth’s commons in relation to the law of property. Humans depend on the
Earth to live. A picture of the Earth from space drives home the fact that
humans share and depend on a fragile planetary ecosystem, an earthly com-
mons of land, water and atmosphere. Only a few hundred years ago, far more
of the Earth’s forests, waters and minerals existed in a state of commons than
today. In England, Wales and Scotland, millions of acres of land in the
seventeenth century were termed common land and open to common rights
of grazing livestock and mowing meadows. The process of enclosure con-
verted most of these open fields to private property (Castree et al., 2014).
However, some common property still exists and could be expanded; there
were 87 community pastures in the Canadian prairies in 2008 (Kulshreshtha
et al., 2008). Now, global commons include the global ocean, the atmosphere
and outer space; when viewed from space, it is clear that humans continue to
share Mother Earth.

(b)Justice
Justice is tricky, and ‘defining it daunting’ (Hurlbert, 2011). Some may view
court decisions as the pinnacle of justice (as in a jurisprudential positivist
approach to justice). For social justice advocates, justice is viewed normatively,
constructed by people(s), and not necessarily consistent with majority opinion or
the rule of law. In the Earth system, justice is interdisciplinary (Lima and Gupta,
2013), inherently constructed by differing ontologies and epistemologies.
Jurisprudential positivist environmental law guarantees three rights: (1) the
right to information; (2) the right to a hearing; and (3) the right to compen-
sation when one’s rights are breached (Cutter, 1995). This definition is really
about simple procedural or process equity, or addressing the direct causal
mechanisms of inequity. In the western world, the government is responsible
for passing necessary legislation to protect the environment, and people
affected by pollution or environmental contamination can access remedies in
court (Hurlbert, 2011). However, the lived reality of environmental law has
been shown to perpetuate inequality. Some of the earliest environmental jus-
tice movements in North America were started by a minority, focused on a
specific, local, hazardous environmental practice and seeking legal remedies
for its correction. They relied on the media and a jurisprudential, positivist
court action. In the US, the environmental justice movement’s genesis is
thought to have begun in 1982 in Warren County, North Carolina, and the
protest against a hazardous waste landfill. Residents, rural and poor, were joined
in their protests by national civil rights groups, environmental groups, clergy and
the Black Congressional Caucus. Studies surrounding this event confirmed
environmental racism (Hurlbert, 2011). The perspective, voices and wishes of
these poor, marginalised Black people were not heard until their mobilisation;
narrow procedural and legal environmental justice was non-existent because
these people were Black (ibid.).
98 Margot Hurlbert
Human access to and use of the Earth’s resources for economic growth and
livelihoods have also harmed the Earth and depleted and degraded its resources.
The environment suffers from a depletion of resources, such as air, water and
soil, the destruction of habitats and ecosystems and the extinction of wildlife. An
analysis of the living law in Nigeria illustrates inequality. A mixture of interna-
tional and Nigerian laws allows environmental ills such as pollution and oil
resource revenues to be inequitably distributed with predominantly marginalised
people experiencing disadvantage through the contamination of their environ-
ments (Dobson, 1998). In Nigeria, Shell pumps oil to make a considerable profit,
but the local Ogoni people live without adequate roads, electricity and water in a
wasteland of environmental degradation due to Shell’s pumping activities
(Watts, 2001). International laws, and lack of political will on the part of the
Nigerian government, together with Shell’s nonchalant attitude have continued
this state of affairs into the twenty-first century (Yakubu, 2017).
Legal environmental justice requires people to reassess their relationship to
the Earth, to reconsider their material requirements from the Earth, to evaluate
their relative share of the Earth’s resources with the community and their worldly
neighbours and to consider all of this while taking into account the interests of
future generations. This exercise requires a relativist assessment of the dominant
position, a construction of what ought or could be, and a critical assessment of
what currently exists. Justice theorist John Rawls posited that a fair distribution
of societal goods could be arrived at by pretending one is behind a veil of
ignorance and one’s own life chances and circumstances are not yet determined
(Burch et al., 2018). Without the personal bias of being either wealthy (and
wanting to maintain that wealth) or being poor (and wanting a better status),
one would then philosophise about how a just society would allocate its goods. If
one was omnipresent, or identified more closely as a global citizen than that of a
particular country, then preferences and choices would equitably allocate the
benefits of wealth and the detriments of pollution and development globally.

Anticipation and imagination

(a)Anticipation
Within the Earth system, anticipation ‘seeks to steer (or govern) an unknown
and largely unknowable future’ fraught with conflicts and uncertainties (Burch
et al., 2018, p. 62). Although increasing in importance in the environmental
and sustainability realm, jurisprudential positivist law predominantly functions
in a reactionary manner responding to breaches of rights and breaches of duty
and the suffering of damages. However, anticipation can be thought of as
building capacities rather than knowing or predicting futures (Guston, 2010).
As a foundational institution of socio-environmental regimes, it is possible to
assess law and its regulatory, economic, and suasive mechanisms that reduce
exposure and vulnerability, thereby building capacity to respond to impacts of
climate change (Hurlbert, 2015).
 The ESL framework 99
The jurisprudential positivist institution of law informs, advances, and per-
haps limits, adaptation to climate change. As an example, the human right to
and property interest in water impact the adaptive capacity of agricultural
producers in times of drought (Hurlbert, 2017). Granted, other institutions
also impact adaptive capacity (access to finance, irrigation infrastructure,
etc.). It is possible to focus on the rule of law, assessing its goals (whether they
are ecological), and law’s ability: (1) to advance polycentric loosely integrated
multi-scalar responses; (2) to foster social and ecological resilience by adapt-
ing to changing conditions; and (3) to embrace iterative processes and feed-
back loops (Arnold and Gunderson, 2013). As an example, the human right
to water has transitioned into an interdependent right connected with other
rights, including food and the elimination of poverty (Stevens and Kanie,
2016). In contrast, private property interests in water can be adaptive and
allow the transfer between irrigators able to produce a crop in times of
drought, albeit that this may reduce the adaptive capacity of those without
protected water rights (Hurlbert, 2017). A diversity of water property interests
can advance anticipation when human rights meet drinking water, sanitation
and hygiene needs and surplus water is allocated through either government
agency, private property interests or a combination thereof (ibid.).

(b)Imagination
Mechanisms that cultivate, govern and respond to imagination surpass out-
dated modes of legal reasoning, overturn potential path-dependent legal rules,
and create, and address, complexities of wicked problems. Western law tradi-
tionally regards humans and the environment as distinct separate categories
consistent with a human exemptionalist paradigm of humans controlling
nature (Catton Jr and Dunlap, 1978). However new imaginations of law,
including the legal status and rights of rivers (as discussed) are emerging. The
embedded in nature paradigm recognises interrelated species and concerns,
recognises that humans live within a finite biophysical environment, and seeks
to reduce human impact on the environment through consuming less (ibid.).
Alternate imaginations of humans as embedded in nature (Harper and
Snowden, 2017) require a construction outside of traditional jurisprudential
positivist law; these imaginations have historically existed and do exist in
Indigenous law. For the Assembly of First Nations in Canada, this would be
described as Honouring Earth:

From the realms of the human world, the sky dwellers, the water beings,
forest creatures and all other forms of life, the beautiful Mother Earth
gives birth to, nurtures and sustains all life. Mother Earth provides us
with our food and clean water sources. She bestows us with materials for
our homes, clothes and tools. She provides all life with raw materials for
our industry, ingenuity and progress. She is the basis of who we are as
‘real human beings’ that include our languages, our cultures, our
100 Margot Hurlbert
knowledge and wisdom to know how to conduct ourselves in a good way.
If we listen from the place of connection to the Spirit That Lives in All
Things, Mother Earth teaches what we need to know to take care of her
and all her children. All are provided by our mother, the Earth.
(Assembly of First Nations Canada, 2013)

Traditional Indigenous peoples’ legal traditions are diverse across the many
First Nations in Canada, but well documented (Borrows, 2002). Since the
1970s, both Canada and the United States of America have incrementally
expanded recognition of Indigenous rights, including political self-determina-
tion, with varying success, depending on geographies and policy frameworks
(Davidson, 2019).

Adaptiveness and reflexivity

(a)Adaptiveness
Jurisprudential positivist climate lawsuits are advancing adaptive capacity in
the time of the Anthropocene. These lawsuits include: (1) challenging gov-
ernment or public official administrative planning decisions that fail to
account for or adequately address climate change in the development and
protection of coastal zones, water-stressed regions, flood-prone areas, or
decisions affecting endangered species (Banda and Fulton, 2017); (2) against
private entities such as ExxonMobil for failure to adapt to climate change by
preparing Everett Terminal to increased precipitation, sea level rise and storm
surges (Bouwer, 2018) or Shell Oil for failure to incorporate climate risks in
its investment in a bulk storage and fuel terminal in Rhode Island (Setzer and
Byrnes, 2020); and (3) against public issuers for failing to report climate risks,
issuing shareholder disclosure that is misleading, weak or lacking in rigour
(ibid.). A geographical expansion of climate litigation is occurring in the
Americas, Asia and Pacific region, and Europe (ibid.).
Human rights claims may be an important tool in organising and unifying
adaptation in the future and advancing equality (Hall and Weiss, 2012). For
instance, as it is projected that 600 million people will suffer malnutrition due
to climate change, the right to food implores states to take necessary actions
to alleviate hunger (ibid.). Human rights principles of progressive realisation
promote adaptative decision making by employing human rights standards,
benchmarks and prioritising adaption for the most vulnerable (ibid.).

(b)Reflexivity
Reflexivity embodies a capacity to be something different rather than do
something different (Dryzek and Pickering, 2017), beyond institutions gen-
erating feedback on themselves to institutions building capacity to critically
scrutinise their own practices (Voß et al., 2006). Jurisprudential positivist law,
 The ESL framework 101
that considers case precedent, existing statute and constitutional law, by defi-
nition excludes the possibility of reflexivity. Could law achieve a capacity to
reconsider core values such as justice and ability to seek, receive and respond
to early warning about potential ecological state shifts (Dryzek and Pickering,
2017)? Exploring law in this manner requires a historically constituted soci-
ality that involves respect for the internal presentation of legal concepts in a
jurisprudential manner (as if formally rational), coupled with a historical and
deconstructive exposure of the limits of such an approach (Norrie, 2013).
Such a methodology can be employed through critical realism as it questions
law’s claims and how law sustains these claims, but then interrogating what
social conditions and contexts are possible. This methodology illuminates the
self-contradiction between law’s self-image and its sociopolitical reality (ibid.).
This task is by no means easy. In the time of the Anthropocene, the socio-
political reality has yet to be fully and comprehensively constructed. The
uncertainty of the impacts of climate change and the diversity of potential
shared socio-economic pathways of the future add complexity to the capacity
of studying law with reflexivity. The potential of ESL scholarship to explore is
immense. One potential avenue in the context of the Anthropocene concerns
globally networked risks – specifically the causal role of factors inter-
connected in risk transmission pathways. Globally networked risks concern
subjects such as global trade agreements, financial investment decisions, or
technological change (Galaz et al., 2017).
Constructing a vision of law that is transformative represents a gap in the
ESL literature. However, examples surely exist. In relation to financial
investment decisions, Carney calls for breaking the ‘Tragedy of the Horizon’
(Carney, 2019, p. 15), whereby the catastrophic effects of climate change are
experienced beyond traditional horizons, imposing a cost of future genera-
tions. Inciting Herculean legal change, the Task Force on Climate-related
Financial Disclosures (TFCD) increased the required disclosure of climate-
related risks. Now companies require in their financial statements a strategy
identifying climate-related risk, an assessment of the resilience of the organi-
sation’s strategy (taking into consideration different climate-related scenarios,
including a 2° Celsius or lower scenario), and an outline of processes for
managing these risks (Sarra, 2018). Institutions such as the G20 (Carney,
2019), the American Bar Association (Brammer and Chakrabarti, 2019) and
the European Commission (Zadek, 2019) have adopted or endorsed these
standards. The TFCD and recent developments advance the number and
success of court cases surrounding fiduciary and liability laws, including
securities fraud for misrepresentation (Wasim, 2019).

Conclusion
This chapter has re-visioned and reimagined the ESL framework using law and
society scholarship. It has created a dialectic: positivist research lenses with
architecture, democracy, allocation, anticipation, and adaptation; constructivist
102 Margot Hurlbert
research lenses aligning with agency, power, justice, imagination, and reflexivity
of the ESG framework. A summary is presented in Table 6.1.
There are limitations. The illustrations are by no means comprehensive,
and within the space of this chapter this task would be impossible. It is also
possible that an approach of positivism could be used to explore the research
lenses illustrated here with constructivism, and vice versa. The argument pre-
sented is that the lenses can be thought of as a dialectic, where two research

Table 6.1 Earth system law research lens and contextual conditions
Lens Jurisprudential positivist
law
Architecture Closed legal system of
specialised actors and
institutions
Regulatory law advancing
adaptation and mitigation
to climate change for
transformations
Democracy Exclusion of interests from
legal decision making
(such as those without
legal water rights in water
governance)
Exclusion of Indigenous
rights by public interest-
based tribunals demon-
strating inequality
Allocation Transformation of respon-
sibility for environmental
decision making (Te Awa
Tupua indivisible and
living whole of River
Basin)
Environmental courts and
tribunals advancing diver-
sity of legal system
Anticipation Diversity of legal water
instruments advancing
adaptation to impacts of
drought
Adaptation Transformative lawsuits
and human rights claims
advancing decision-
making accounting for
impacts of climate change
Constructivist law Lens
Living law of water Agency
rights at times of
drought addressing
inequality
Expanded standing
for diverse climate
lawsuits and the
Anthropocene river
rights
Exposure of inequal- Power
ity of law’s support
for top GHG-emit-
ting companies
Advancement of law’s
diversity recognising
rights of Mother
Earth
Inequality of distribu- Justice
tion of environmental
harms to margin-
alised people
Transformation of
distribution of Earth’s
resources
Diversity recognising Imagination
legal pluralism of
Indigenous tradi-
tional law
Transformation of Reflexivity
public issuers dis-
closure to include
consideration of cli-
mate scenarios
 The ESL framework 103
approaches – jurisprudential positivism, and constructivist living law – coexist
across a spectrum. Neither is wrong or right, but both exist in contradictory and
relativist ways. This chapter has argued, and illustrated by example, that the ESL
research lenses can be explored across this dialectic of positivism and con-
structivism. By considering the full spectrum, the possibility of transformation
emerges.
At the forefront, the ESG framework provides a heuristic to organise
and contemplate the Earth system and the law’s operation within it. This
chapter has illustrated in allocation and anticipation the potential for the
jurisprudential positivist research lens to advance transformation of responsi-
bility. Advances, including the Te Awa Tupua living whole of River Basin,
and the diversity of legal systems through the creation of environmental
courts counter criticism of the jurisprudential positivist law not considering
nature and relations of humans with the Earth. This chapter also illustrated
legal scholarship surrounding the diversity of law in recognising the rights of
Mother Earth, in the research lens of power.
In the reorganisation of the ESG framework for an ESL framework and
the creation of a dialectic, the limitations of singular approaches to law and
society scholarship are potentially addressed. Just as there are limitations
with a singular jurisprudential positivist approach to the law, so there are
also with a singular constructivist living law. However, the contemplation of
both a jurisprudential positivist study of law with a constructivist study of
law aids in addressing the limitations of each. Traditionally, the jur-
isprudential positivist study of law focuses exclusively on humans and their
inter-relations, prioritising the prevalent relations of law and the legal
system and advancing a narrative of law that is clear, precise, stable, and
difficult to reconcile with scientific uncertainties (Honkonen, 2017). How-
ever, the constructivist research lens illuminates change with the expansion
of a diversity of climate lawsuits holding entities responsible in relation to
greenhouse gas emissions, buttressed by improved attribution science. The
consideration of agency and imagination allows for law’s reformation and
real legal transformation.
The constructivist research lens is often criticised as illustrating the weak-
nesses of the legal system but not advancing any path to remedy them (Hurl-
bert, 2011). The research lens of power and justice exposes the inequality of the
distribution of climate harms, and theoretically addresses law’s deficiencies so
they can be remedied. However, the jurisprudential positivist law approach in
adaptation illustrates the transformative potential of the advancement of
human rights claims advancing decision making for climate adaptation.
The jurisprudential positivist approach is often criticised as only reifying
(ratifying and reproducing) current laws and practices (i.e., jurisprudential
positivists take the official version of law – that law is just and unbiased – for
granted); the reality is that access to expensive lawyers and courts is often a
barrier to justice. By examples such as the recognised diversity and legal
pluralism of Indigenous traditional law, and in the research lens of agency
104 Margot Hurlbert
(the recognition of river rights), this chapter documents through the con-
structivist approach, real legal transformation.
Lastly, the jurisprudential positivist approach is criticised as it fails to analyse
or explain power differentials, provide reasons for this power difference, and pro-
vides no praxis of action to remedy or change unequal power relations (Hurlbert,
2011). Constructivist approaches in the research lens of power and justice expose
these power differentials and provide the praxis of climate lawsuits in agency and
transformation (of public issuers’ disclosure laws) to make real change.
This chapter has exposed a gap in the law and society scholarship and
nascent ESL literature. This gap exists in relation to exploring and illustrating
legal transformations. It is not that examples of law’s transformations do not
exist. The amendment of laws surrounding public issuers’ financial disclosures
to combat the ‘Tragedy of the Horizon’ (Carney, 2019) is an example. The
challenge is for legal scholars to document, explore, imagine and advance
ESL’s transformations.

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Part III
The normative dimensions of
Earth system law

How ‘should’ ESL be used, and what values is it seeking to promote and
protect? Part III explores this question, through the lenses of inequality and
sustainability, key drivers of ESL’s development.

DOI: 10.4324/9781003198437-9
7 Rights of nature as an expression of
Earth system law
Alice Bleby

Introduction
Mounting evidence of global ecological catastrophe, increasing scientific
capability to understand the Earth system as an interconnected whole, and
a growing appreciation of the scale of human impact upon that system,
highlight the inadequacy of current legal regimes in the context of the
Anthropocene. In response, scholars and communities around the world
are advocating for – and, in some cases, implementing – alternative legal
frameworks, that reimagine the objectives, actors, institutions and architecture
of environmental law.
Earth system law (ESL) is an emerging conceptual legal framework that
aims to describe and prescribe the qualities of legal systems that can meet
normative and regulatory challenges emerging in the current time (Kotzé and
Kim, 2019). ESL builds on the efforts of Earth system governance (ESG)
research to synthesise the discoveries of Earth system science with social sci-
ence research and practice. Although ESG research has focused on the actors,
institutions, rules and processes encompassed by the concept of governance
(Biermann et al., 2010), law and legal institutions have been peripheral to this
agenda; and, equally, ESG perspectives have not penetrated the judicial realm
(Kotzé and Kim, 2019). ESL is a relatively new concept and field of inquiry,
for which no full account or integrating theory yet exists (Kotzé, 2019). This
chapter draws on early elaborations of the concept, parameters and emerging
discipline of ESL, to suggest several themes or qualities that may be sought in
an ideal version of ESL, and to draw out evidence of those qualities in an
emerging contemporary legal doctrine, i.e. the rights of nature.
ESL contains an imperative for transformation: a paradigm shift is
required to respond to the exigencies of the Anthropocene (ibid.). The con-
textual frame of the Anthropocene is inextricable from conceptions of ESL
law (albeit contested), as it is embedded in the theoretical framework of ESG
(Biermann, 2014). Although originally coined to describe a geological epoch
(Crutzen and Stoermer, 2000), the term Anthropocene has expanded to
articulate a socio-political conceptual framework that emphasises the role of
humans and human systems in causing and perpetuating damage to the

DOI: 10.4324/9781003198437-10
112 Alice Bleby
environment and the Earth system. Viewed as one of the most important policy
concepts of the contemporary era (Biermann, 2018), the Anthropocene both
provides an account of how the current crisis has been produced, and describes
the context in which solutions to humanity’s predicament must be imagined and
applied (Kotzé, 2014). Arguably, the Anthropocene demands a normative
response that is propelled both by moral culpability within human systems for
bringing the Earth system to the edge of collapse, and the knowledge that
humans are the only potential agents of change on the scale required (ibid.).
Legal recognition of the rights of nature is an emerging approach to reor-
ienting the way law protects the environment. This doctrine reframes nature
as a subject of rights, rather than an object of human interests. The concept
of nature as a legally recognised right-holder has started to manifest in laws
enacted across the globe, from Ecuador to Aotearoa New Zealand, from the
United States of America to India, and beyond. Although not directly derived
from the concept, this chapter asserts that the rights of nature can (and
should) be coherently integrated into and explored within the contextual fra-
mework of the Anthropocene and ESL.
This chapter argues that emerging rights of nature theory, legal instruments
and jurisprudence express qualities of ESL and, reciprocally, that nature rights
can illuminate critical questions about the values and normative orientations of
ESL. First, it provides a brief overview of the rights of nature doctrine and the
emergence of nature rights law around the world. The chapter then proceeds to
explore three normative themes that are pivotal to emerging conceptions of
ESL: (1) promoting an eco-centric approach; (2) embracing complexity,
broadly construed; and (3) adopting a planetary perspective. It sketches out a
range of ways in which the rights of nature both express these objectives and
point the way towards sustainable, adapted law for the Anthropocene. In doing
so, it opens up pathways for future, deeper exploration of these themes, their
manifestations in nature rights, and obstacles to their realisation through this
doctrine, that exceed the scope of this brief, exploratory chapter. It also sug-
gests that a further task in developing ESL should be to interrogate the concept
of the Anthropocene, and that the rights of nature doctrine can facilitate this
critical engagement by its example of normative positioning around this con-
cept. The chapter concludes that ESL and the rights of nature are com-
plementary and mutually enriching conceptual frameworks that can benefit
from cross-pollination and integrated research agendas as part of the global
enterprise to elaborate a new Earth law for the Anthropocene. Situated (as is
this collection) in the early stages of development of the discipline of ESL, the
objective of this chapter is to encourage and facilitate fruitful dialogue between
ESL and rights of nature discourse.

The emergence of rights of nature as a legal doctrine

Recognising the moral and ultimately legal rights of nature is a concept that
has emerged in western legal frameworks from the development of ecological
 Rights of nature as an expression of ESL 113
ethics and a range of critical responses to environmental law; and which
embraces non-Western, Indigenous, spiritually and culturally intimate con-
ceptions of humans’ relationship to nature. Its underpinning principles echo
Indigenous conceptions of the interdependent relationship between humans
and the Earth that have endured for millennia (Graham, 1999; Te Aho, 2019;
see also Pelizzon, 2014). Much more recently, the development of this idea in
western law and philosophy has blossomed amongst the verdure of ecological
ethics since the 1960s and 1970s. Nash (1990) describes a process of ethical
expansion over several centuries that extended the boundaries of the moral
community to encompass nature, its components and its systems. An early
example of the repositioning of humans in relation to nature emerged in
Leopold’s Land Ethic, wherein he emphasised the need for an ecological
conscience that ‘changes the role of Homo sapiens from conqueror of the land
community to plain member and citizen of it’ (Leopold, 1949, p. 204). Car-
son’s seminal text, Silent Spring, is said to have catalysed the global ecological
movement on its publication in 1962, and argued convincingly that ‘in nature
nothing exists alone’ (Carson, 2002, p. 51). Critical environmental theorists,
including ecofeminists, repudiate the separation between humans and nature
(Plumwood, 2002), and various theories have suggested that moral value
should be accorded to different parts of nature: to sentient animals (Singer,
1990); to nature’s systems (Naess, 1973); or to the Earth itself (Nash, 1990).
Philosophical arguments for reorienting the human-nature relationship have
been translated into a range of proposals to recognise legal rights for nature.
Stone (1972) argued that nature deserved legal recognition derived from its
inherent value, rather than only acknowledging its instrumental value to
humans. Berry’s (2001) theory of Earth jurisprudence posits that ‘[t]he Earth
Community and all the beings that constitute it have fundamental “rights”,
including the right to exist, to habitat or a place to be, and to participate in the
evolution of the earth community’ (quoted in Cullinan, 2011, p. 13). Broadly,
proposals to recognise specific rights of nature in law tend to include a right to
life, a right to regenerate and a right to be restored.
Although acknowledgements of the rights of individual animals and species
have been appearing in legal instruments for several decades (Boyd, 2017), it
is only recently that explicit recognition of nature as a legal subject and bearer
of rights has been expressed in law. Tamaqua Borough in Pennsylvania in the
USA introduced the first legally binding instrument to recognise nature’s
rights in 2006 (Ordinance No. 612). Ecuador introduced rights of nature into
its Constitution in 2008, followed by statutory recognition in Bolivia in 2010
(Law of the Rights of Mother Earth – Law 71). Legislation in Aotearoa New
Zealand (Te Urewera Act, 2014) recognises the legal personhood of the Te
Urewera (formerly a national park) and the Whanganui River (Rodgers,
2017). Legal rights for nature (including for rivers, glaciers and the animal
kingdom) have also been recognised in jurisprudence in India (High Court of
Uttarakhand, 2016; 2017; 2018) and Colombia (Constitutional Court of
Colombia, 2016). Realisation of these rights in law has eventuated from a
114 Alice Bleby
diverse set of factors, including community campaigns (Margil, 2014), con-
stitutional reform processes (Tanasescu, 2013), Indigenous advocacy and set-
tlement of historical claims against a colonial power (Charpleix, 2018; Morris
and Ruru, 2010), and longstanding philosophical and legal traditions. These
instruments also differ greatly in form and content: for example, Aotearoa
New Zealand’s legislation recognises legal personhood for nature rather than
specific rights, an approach followed by courts in India and Colombia. Rights
of nature laws adopt different approaches to defining rights-bearing nature,
assigning legal representatives or guardians and establishing duties for
humans (Bleby, 2020). They also produce diverse outcomes in practice that
may not seem to mirror the law as set down on paper (Kauffman and Martin,
2017). A detailed analysis of these divergences is beyond the scope of this
chapter, which considers themes and characteristics emerging across the range
of rights of nature laws as expressed in legal texts, without intending to
obscure the differences between individual instruments and the many different
views of scholars and practitioners working with these laws.
The theories and perspectives from which nature rights are derived invoke
moral and conceptual framings of the human condition that arguably trans-
cend the context of the Anthropocene. The capacity of humankind to alter
the geological conditions of the planet that has increased since the onset of
the industrial revolution (Steffen et al., 2011a) or earlier (Lewis and Maslin,
2015) does not necessarily alter the conditions of an ideal, moral relationship
between humans and nature. Nor have the ethical orientations underpinning
rights of nature laws emerged in response to the conditions of the Anthro-
pocene – in the case of Indigenous world-views, their origins can be traced
back thousands of years before human-social systems began to alter the
function of the Earth system. However, these perspectives are no less relevant
in the Anthropocene, and their call for a reorientation of the human-nature
relationship is made even more urgent in this context. Also, given that formal
legal recognition of nature’s rights has emerged in the Anthropocene, it is
probable that these laws implicitly respond to these conditions to some extent.
Nature rights have been briefly considered in the context of ESL: Kotzé
and Kim (2019) use the rights of nature to illustrate their description of eco-
logical law and international earth law as stepping stones towards a proposed
goal of planetary Earth law; and Kotzé suggests the doctrine is ‘a useful
example of what the law could achieve in its attempts to dissolve hierarchies
by deliberately embracing eco-centrism and care for the non-human world’
(Kotzé, 2019, p. 6). This chapter goes further than these brief allusions to
argue that the emerging phenomenon of legal recognition of nature’s rights is
both a descriptive and, potentially, a prescriptive expression of ESL.
The following analysis explores the way in which the rights of nature doc-
trine engages with the key tenets of ESL. Although the theoretical and
operational dimensions of ESL have not yet been fully developed, early out-
lines of the concept provided by Kotzé and Kim (2019) and Kotzé (2019) and
supplemented by a broader range of scholarly contributions on the
 Rights of nature as an expression of ESL 115
Anthropocene and ESG suggest three central themes that define ESL as both
a descriptive and normative framework: (1) promoting an eco-centric
approach; (2) embracing complexity; and (3) a planetary perspective.

Promoting an eco-centric approach

ESL is premised on an eco-centric perspective that recognises the intrinsic value
of nature. Eco-centrism is contrasted with the anthropocentrism of environ-
mental law, which accords value to the environment only as it is instrumental to
human interests (Preston, 2014). Advocates of an eco-centric perspective argue
that humans should consider themselves part of nature, rather than separate
from it (Houck, 2017) and that the intrinsic value of nature should be acknowl-
edged and protected by law (Cullinan, 2011). Rather than considering nature an
externality, law in the Anthropocene must reconfigure its fundamental precepts
to ensure the impacts of human systems and activities on nature are a central,
rather than a secondary, consideration of law (Viñuales, 2016).
Rejecting the dualist conception of humans and nature as separate is
considered by some to be a logical imperative of the Anthropocene (Ste-
phens, 2017). It is argued that recognition of the capacity of humans to alter
the fundamental systems of the Earth, implicit in the concept of the
Anthropocene, forces the acceptance that people are a part of nature
because human actions have implications for the whole interconnected
Earth system (Dalby, 2016). People recognising themselves as ‘biophysical
beings interacting with other biophysical beings’ rather than social actors in
a domain separate from nature demands a reconfiguration of the sense of
human identity (Shearing, 2015, p. 257), so that it is understood to be as
participants in the Earth System rather than external to it.
Generally, acknowledging nature’s intrinsic value and recognising that
humans are part of nature includes a repudiation of the idea that humans are
masters of nature (Leopold, 1949). Yet, a core tenet of the Anthropocene
requires acknowledgement of the power wielded by humans over natural sys-
tems (this is an inextricable part of acknowledging that human systems have
caused planetary-scale damage). It also emphasises human agency in the path
to restoration, implying that there is some choice in how this power is wiel-
ded, and therefore a certain type of mastery (albeit without full control –
perhaps pointing to this factor as creating a crucial distinction between mas-
tery and dominance) (Stephens, 2017). It is here that the need to adopt an
eco-centric perspective takes on a more strongly normative aspect: instead of
exercising human dominance without regard for the consequences for nature
(including for humans), calls for the adoption of an attitude of scientific
humility that acknowledges the limits of human understanding and control
(Lövbrand et al., 2009), and respects species, ecosystems and the Earth in
their own right.
Legal recognition of the rights of nature is strongly grounded in an eco-
centric perspective. Recognising nature as a subject or holder of rights implies
116 Alice Bleby
recognition of its intrinsic value (Stone, 1972). This is explicitly affirmed in
the Constitution of Ecuador (Article 71) which states that ‘Nature, or Pacha
Mama, where life is reproduced and occurs, has the right to integral respect
for its existence’ (Republic of Ecuador, 2008). In some cases, nature may also
bring a claim before the court, and damages must be used exclusively for the
restoration of the natural community or ecosystem that has been damaged
(Lake Erie Bill of Rights, 2019). This is a significant departure from the tra-
ditional treatment of damage to nature by courts (Stone, 1972). Rights of
nature reinforce the normative significance of eco-centrism in law for the
Anthropocene, exemplifying an important quality of ESL and promoting
transformation of legal systems.
Kotzé and Kim’s (2019) critique of anthropocentrism in environmental law
also emphasises the interconnectedness of the human-social and ecological
systems. The Constitution of Ecuador of 2008 notes in the section on rights
for nature (Article 74) that ‘Persons, communities, peoples and nations shall
have the right to benefit from the environment and the natural wealth
enabling them to enjoy the good way of living.’ The Te Awa Tupua (Whan-
ganui River Claims Settlement) Act (2017) seeks to express the relationship
between the Ma-ori (tribe) and the river through the recognition of the river’s
legal personhood (Magallanes, 2019). The vast majority of local ordinances
recognising the rights of nature in the USA also explicitly recognise rights for
people, such as the right to a healthy environment, the right to water, and the
right to self-determination. Although rights of nature attract some criticism that
they are anti-human (Houck, 2017), there is in fact ‘no reason why a holistic
ecosystem approach (such as Leopold’s) necessarily precludes respect for indivi-
dual beings (human or non-human), or leads to misanthropy’ (Sessions, 1995, p.
157). The interrelationships between environmental degradation and human
welfare (or lack thereof) are widely documented (Raworth, 2012), and although
nature rights discourse emphasises an eco-centric approach, this generally goes
hand in hand with stressing that human health and well-being are dependent on
the environment (Stone, 1972). Rather than simply shifting the focus from
humans to non-human nature, rights of nature mechanisms express the inter-
connectedness of human and ecological systems and their critical inter-
dependence on one another. Both ESL and nature rights discourse promote
transformation by demanding that law reorient its focus, from humans-first to
considering the interconnected interests of the whole Earth system (or, as nature
rights advocates would put it, the Earth community).

Embracing complexity
Early discussions of ESL, and explorations of environmental law in the
Anthropocene more broadly, have elucidated a range of adaptations required
to sustain the purpose and function of law that can loosely be grouped under
the concept of embracing complexity. These include overcoming the tendency
in environmental law to silo or compartmentalise issues instead of
 Rights of nature as an expression of ESL 117
acknowledging and responding to their interrelatedness (Kim and Bossel-
mann, 2013); rejecting state-centrism in international law (Kotzé and Kim,
2019), reflecting instead the planetary and transboundary nature of environ-
mental issues; and anticipating and responding to uncertainty, unpredict-
ability, non-linearity and rapid ecological change (Kotzé, 2019).

Embracing interrelationships and interconnectedness

Environmental law is highly fragmented. It is largely reactive and has struggled
to keep pace with evolving scientific understanding of the Earth system and the
impact of human activities (Lövbrand et al., 2009). Siloing of environmental
issues, particularly in international environmental law, has been deplored by
critics as a major contributor to law’s inefficacy in the Anthropocene (Kim and
Bosselmann, 2013).
Recognising the rights of nature in law inverts this approach by placing the
integrity of nature – its right to life, its right to regenerate and to be restored, or
its integrity as a legal person – at the centre of legal obligations. This requires
activities to be evaluated by reference to their consequences for nature, rather
than based on the type of activity or pollution produced. The legal question is
whether any activity caused a breach of the rights of this subject of the law,
rather than whether a specific activity has been undertaken in a way that has
breached the law. This allows for a more holistic approach to assessing and
regulating multiple impacts with multiple causes that may interact; and for
consideration of cumulative impacts, a crucial capability that must be devel-
oped for law to effectively respond to the Anthropocene (Biber, 2016).
The majority of rights of nature instruments give rights to nature as a
whole (as in Ecuador, Bolivia and several local jurisdictions in the USA) or to
a specific ecosystem, such as a river (the Whanganui River in Aotearoa New
Zealand, the Ganges and Yamuna Rivers in India, the Atrato River in
Colombia) or glaciers (India). This approach has evolved beyond the recog-
nition of the rights of individual animals and sentient beings to acknowledge
the importance of ecosystem integrity and the interrelationships within an
ecosystem that are essential to the healthy existence of any individual being.
This approach, particularly if applied at the planetary level, would reduce the
risks of interdependent systems and environmental harms being treated dif-
ferently by different legal regimes, as can be seen in the international frame-
works for climate, biodiversity and oceans (Kim and Bosselmann, 2013).
Arguably, a rights-based approach inherently encourages a more integrated
approach to discharging obligations to protect the environment. Kim and Bos-
selmann (ibid.) suggest that the Universal Declaration of Human Rights func-
tions as a type of constitution within human rights law, creating a normative
hierarchy that informs the application of other laws. Recognition of the rights of
nature (at the local, national or international level) may analogously articulate a
primary interpretive standard within the relevant jurisdiction that requires inte-
grated consideration of environmental impacts.
118 Alice Bleby
Rejecting state-centrism
International law has also been criticised for remaining state-centric in the
face of global ecological issues that render state boundaries increasingly
irrelevant (Kotzé and Kim, 2019). The adoption of a rights-based frame-
work to protect the interests and well-being of nature could establish norms
that transcend state-based limits premised on the universality of rights
(Cassese, 2012). Rights that emerge as the product of a ‘universal juridical
conscience’ come to ‘constitute the basic foundation of the legal order’
(Trindade, 2008, pp. 21, 30). Building on the example of the internationally
legitimised human rights law architecture, rights for nature that can be
enforced by citizens and/or guardians of natural entities – in the case of the
constitution of Ecuador (Article 71, 2008), and the Whanganui River (Te
Awa Tupua Act, 2017). The dominance of the state in environmental law
and governance can consequently be subverted by providing a normative
premise for legal action that does not derive from the sovereign interests or
actions of the state.
Kotzé and Kim have further argued that ‘[a] purely state-centric juridical
paradigm … shuts out any meaningful involvement, incentivisation and pro-
motion of non-state actors in Earth system governance at a time when such
involvement is in fact critically required’ (,2019, p. 5). In addition to empow-
ering citizens and communities to defend the rights of nature, the evolution of
nature rights instruments around the world highlights the capacity of the
doctrine to embrace legal plurality and cultural and geographic diversity.
Rights of nature have been recognised by local communities at the town, city,
borough or county level; by national jurisdictions through statute or through
the highest form of domestic law, the constitution; by courts at regional and
national levels; and in non-legal citizens’ fora including the Universal
Declaration of the Rights of Mother Earth adopted by the World People’s
Congress on Climate Change and the Rights of Mother Earth in Bolivia in
2010, and the establishment of the International People’s Tribunal for the
Rights of Nature (Maloney, 2016).

Embracing uncertainty, non-linearity and change

The third feature of the complexity to be embraced by ESL is its capacity to
respond to, and even anticipate, uncertainty, non-linearity and rapid ecologi-
cal change. The emphasis in the rights of nature doctrine on relationality and
ecosystem integrity, and the plurality of legal instruments developing in
diverse legal and cultural contexts, as discussed above, also foster adaptability
and flexibility in the law – there is evidently no single correct way to imple-
ment nature’s rights. The reflexivity inherent in respecting ecosystem function
(as opposed to monitoring single species recovery or similar) promotes a more
complex view of nature’s health and well-being and requires consideration of
evolution and change within the system.
 Rights of nature as an expression of ESL 119
However, clear indicators of how rights of nature instruments respond to
uncertainty are yet to emerge. The relative novelty of these instruments and
consequently the limited jurisprudence available to help interpret them mean
essential questions such as how best to understand and protect ecosystem
relationships, how to define the scope of an obligation to allow nature to
thrive, and how to identify what thriving means in an already radically
altered environment, remain, as yet, unanswered. The unprecedented changes
in the Earth system that are being experienced (and which are expected to
intensify) call into question whether a natural (or pre-Anthropocene) state is
possible, or even desirable, for ecosystems that will evolve in significantly dif-
ferent conditions. Exploring ways in which law can apprehend and respond to
this uncertainty and rapid, unpredictable and non-linear change through the
paradigm of ESL could offer critical insights that facilitate the implementa-
tion of nature rights adapted to the Anthropocene. Equally, as rights of nature
are more widely implemented and tested in practice, the way in which uncer-
tainty is engaged with and addressed may inform responses within the broader
context of ESL. Both emerging doctrines could also draw upon and exchange
insights gained from explorations of adaptive approaches and resilience in other
areas of law and governance research.

A planetary perspective
A central tenet – perhaps the central proposition (Kotzé and Kim, 2019) – of
ESL is the imperative that (environmental) law must embrace a planetary
perspective. This idea is fundamental to the conceptual framework of ESG,
which responds to the impact of human activities on planetary systems
(Biermann, 2014) rather than on ‘isolated elements of global change’ (Bier-
mann et al., 2010, p. 279). Taking their lead from Earth system science, ESG
and law contemplate the Earth as ‘a single, dynamic, integrated system’, as
‘the Earth taken as a whole in a constant state of movement driven by inter-
connected cycles and forces’, and not ‘a collection of ecosystems’ (Hamilton,
2016, p. 94). It is argued therefore that ‘addressing the vulnerability of the
entire Earth system must become a central concern of and objective for Earth
system law’ (Kotzé, 2019, p. 7). In contrast to environmental law, with its jur-
isdictional constraints, silos and tendency to separate human and ecological
factors, ‘Lex Anthropocenae … hints at a transformed type of law grounded in
and focused on the entire Earth’ (Kotzé and French, 2018, p. 818).
Kotzé and Kim suggest that the objective of the ESL conceptual frame-
work is to develop planetary earth law, defined as ‘Earth-centred law for
governance by and for all living beings from a planetary perspective’ (2019, p.
7). Emphasising a need to redefine the geography of law in the Anthropocene,
they argue that planetary systems-based law incorporates scientifically deter-
mined planetary boundaries to determine a safe operating space (Rockström
et al., 2009) that ‘acknowledges both the existence of an ecological ceiling and
of a social foundation’ (Kotzé and Kim, 2019, p. 7). Since its publication in
120 Alice Bleby
2009, scholars have been examining the implications of integrating the pla-
netary boundaries framework into law and governance (Biermann, 2012;
Galaz et al., 2012; Fernández and Malwé, 2019; Kim and Bosselmann, 2015),
and their explorations will continue to inform the development of ESL.
There has been some early discussion of how the rights of nature doctrine
may incorporate the planetary boundaries. Maloney (2014) argues that com-
bining the principles of Earth jurisprudence with the planetary boundaries
creates specific parameters or upper limits that help identify what is necessary
to preserve ecological integrity. Scientific insights from investigating the pla-
netary boundaries could inform assessments of where nature’s rights have
been breached based on planetary impacts, and also help develop a richer
understanding of what a right to thrive or flourish means for nature in the
context of the Earth system. The success of this attempted integration may
depend on the extent to which the planetary boundaries framework can adopt
an eco-centric perspective beyond its current, explicitly anthropocentric focus
(Cornell, 2012).
Most rights of nature instruments are enacted to protect nature within a
particular jurisdiction, either because the ecosystem in question is contained
within that jurisdiction (Rodgers, 2017; O’Donnell, 2018) or because of jur-
isdictional limits on law-making power. An ordinance of the municipality of
Santa Monica, California, states, for example, that ‘Natural communities and
ecosystems possess fundamental and inalienable rights to exist and flourish’
(Ordinance No. 2421) (City Council of Santa Monica, 2013). However, some
take a more expansive approach – the Constitution of Ecuador grants rights
to nature, or Pacha Mama and there are hints of a planetary perspective in
the elaboration upon this nature as being ‘where life is reproduced and
occurs’ (Republic of Ecuador, 2008). Similarly, references to Mother Earth in
Bolivian rights of nature legislation invoke a planetary whole (Bolivian Gov-
ernment, 2010, Law 71; 2012, Law 300,). These references are of a general
nature, and only explicit in some nature rights instruments. In practice, the
application of these instruments is constrained to the jurisdiction in which
they are enacted. This was a question at issue in the State’s appeal of the High
Court of Uttarakhand’s decision in the Ganges and Yamuna Case, for
example (O’Donnell, 2018). However, the rights of nature doctrine is not
incompatible with a planetary perspective, and arguably the implication of
universality implicit in a rights-based legal framework, albeit rejected in some
quarters (Good, 2013), supports a planetary approach.
Incorporating a planetary perspective into law, including into rights of nature
laws, is a highly complex task. Critiques of the planetary boundaries note that
they are difficult or impossible to operationalise at the sub-global or local level,
and that in some cases they can elide local environmental problems or land-
scape-scale imperatives that are nevertheless critical to ecological flourishing
(Montoya et al., 2018). Similar criticisms could be levelled at the promotion of
a planetary approach within ESL. Proposals for law reform, such as Kim and
Bosselmann’s argument for a new grundnorm for international environmental
 Rights of nature as an expression of ESL 121
law, and investigation of how local responses like nature rights laws reflect
global preoccupations, can inform the integration of a planetary perspective
into law, a process that is likely to be iterative and incremental (Kim and Bos-
selmann, 2013; 2015).
Critical perspectives on the Anthropocene highlight the potential homo-
genising effect of a planetary or Earth system perspective. The following section
briefly considers this kind of critique, and the way in which rights of nature may
shape the normative contours of ESL in response.

Interrogating the Anthropocene

The epistemological lens of the Anthropocene is integral to the conceptual
framework of ESL (Kotzé, 2019), taking as its central tenet the responsibility
of humankind for the degradation of the Earth system on a planetary scale
(Steffen et al., 2011b). The Anthropocene trope is implicit in Earth System
Science, from which ESG and ESL are derived, and within these epistemolo-
gies it can be argued that ‘the Anthropocene logic is not challenged as such’
(Lövbrand et al., 2009, p. 10).
However, it would be overreaching to say that the Anthropocene concept
itself promotes a holistic, eco-centric or even ethical approach to law reform.
The Anthropocene is not inherently normative (Stephens, 2017) – rather, it
can open up a range of possible pathways and responses that may be inimical
to one another. Conceptions of the Anthropocene underpin arguments for
control-based approaches to managing ecological problems predicated on
large-scale technological solutions, such as geoengineering; at the same time,
they are used to support calls for Earth-centred, holistic and democratised
approaches to law and governance (Earth System Governance Project, 2018;
Lövbrand et al., 2009; McAlpine et al., 2015; Stephens, 2017). Significantly, it
has been persuasively argued that the Anthropocene trope risks reproducing
many of the framings and structural inequalities that have given rise to the
ecological crisis now being faced. For example, Lövbrand, Stipple and
Wiman draw attention to the use of mechanistic metaphors used to describe
the Earth system, that ‘tap into nature concepts born during the scientific
revolution when machines became the symbol for the order, certainty and
predictability generated by physical laws’ (Lövbrand et al., 2009, p. 10).
Efforts to understand the Earth system can, perhaps inadvertently, become
oriented towards discovering ways in which it can be controlled.
The incisive critiques of Malm and Hornborg (2014) and Grear (2015)
highlight the social and economic inequalities which gave rise to the Anthro-
pocene. In particular, they caution against a reductionist and oversimplified
view of humanity as responsible for global ecological degradation: Grear
(2015) argues that failing to disaggregate the humanity responsible for indu-
cing the Anthropocene repeats the historical exclusion of feminised others
from recognition under the law. Malm and Hornborg (2014) warn that
attempts to naturalise the Anthropocene, to draw it as the product of some
122 Alice Bleby
kind of innate human (species-wide) quality obscures the agents responsible
for damage to the Earth system, and can lead to political paralysis built on a
sense of inevitability and impotence. Law itself, including international law,
has been complicit in creating the conditions of the Anthropocene (Grear,
2015; Kotzé, 2019) – it could therefore be especially susceptible to reprodu-
cing those conditions, even in a reformed architecture.
One of the tasks of ESL, then, ought to be to interrogate the assumptions of
the Anthropocene trope, to ensure ESL can provide a genuinely transformative
alternative to the legal systems and institutions that have enabled the advent of
the Anthropocene. Rather than remaining morally ambiguous or purportedly
neutral, researchers committed to developing ESL need to clearly mark out its
moral and ethical orientations. These considerations have not been absent from
nascent ESL scholarship to date: Kotzé, argues that ESL should ‘pursue jus-
tice … for all present and future humans living in the Global North and the
Global South, as well as for present and future non-humans in equal terms’
(2019, pp. 6–7). Scoping a research agenda for law in the Anthropocene,
Viñuales (2016) emphasises the importance of addressing the ways the legal
system structures and facilitates inequality, including in the contexts of pro-
duction, exchange, and assignment of historical responsibility. If ESL is to take
on the Anthropocene as a conceptual point of reference, it must be prepared to
respond to contestation of the trope and its implications; these contestations
are many and varied, although a detailed discussion is beyond the scope of this
chapter (Lewis and Maslin, 2015; Haraway, 2016a; 2016b; Moore, 2017).
Constant intellectual vigilance is required to sustain an inclusive, equitable and
pluralistic framework that pays sufficient attention to all the dimensions of
social and ecological justice and equity invoked by a holistic Earth system
paradigm that is inclusive of all human and non-human beings.
Recognising nature rights as an expression of ESL and incorporating its pre-
cepts into a normative agenda could help delineate the ethical parameters of the
Anthropocene concept. As discussed in the introduction of rights of nature
above, these rights have emerged from philosophical and legal discourse strongly
grounded in the dimensions of an ethical relationship between humans and
nature. By expressing this moral relationship with nature in the context of the
Anthropocene, rights of nature instruments give weight to the proposition that
ESL itself has these normative dimensions. The expression of Indigenous per-
spectives through rights of nature laws, notably in Latin America (Berros, 2019)
and Aotearoa New Zealand (Charpleix, 2018), contrasts with the dominant
western narrative of development and defies a homogenised version of human
history that invisibilises diversity, the Global South, and Indigenous world-views
and cosmologies. In addition, corporate rights and the role of the corporation in
contemporary law, described by Grear as ‘the apotheosis of law’s Anthropos’
(2015, p. 241), are directly challenged by rights of nature laws, in particular
municipal ordinances in the USA, such as the Lake Erie Bill of Rights of 2019
(albeit resisted by government) (Kilbert, 2020) and new applications of the con-
struct of legal personhood in Aotearoa New Zealand (Hutchison, 2014).
 Rights of nature as an expression of ESL 123
Both the rights of nature doctrine and ESL need further elaboration and
investigation to determine how intra-species (human-social) justice can be
fostered within these frameworks. The holistic approach of ESL acknowledges
the interconnectedness of human-social and ecological systems, and the
objectives of justice and inter-species and intra-species equity must remain
central concerns of research to further develop the concept. This may be a
difficult undertaking in a global context where developing countries are wary
of constraints placed on development by environmental limits, and environ-
mental protection has often been pitted against economic growth (Saunders,
2015). Arguably, this will require a more substantial reimagining of global
ecological objectives than various modifications to the concept of sustainable
development that have been proposed (Griggs et al., 2013; Sachs, 2015).
Acknowledging the scale of the challenge, the transformative ambition of
ESL and rights of nature laws may ultimately illuminate an ethically robust,
holistic, eco-centric pathway to sustainability and justice for all denizens of
the Earth community in the Anthropocene.

Conclusion: fertile ground for cross-pollination between rights of nature

and Earth system law
This chapter has explored the potential for two emerging legal phenomena –
the rights of nature and ESL – to complement and mutually reinforce one
another in the process of reimagining law for the Anthropocene. In order to
operationalise the tenets of ESL, concrete examples of legal approaches in
practice are needed, both to describe ESL as it emerges and to inform the
normative content of the concept. The rights of nature doctrine provides one
such example, with multiple and diverse examples of legal texts in force
around the world that are, it is argued here, manifesting qualities of ESL.
Having first introduced the concept of nature rights, this chapter explored
the way in which rights of nature laws express three of the core normative
preoccupations of ESL: (1) an eco-centric approach; (2) embracing complex-
ity; and (3) adopting a planetary perspective. Amidst many common threads
there are some divergences and many opportunities for further development
of both concepts. It is also necessary to more fully interrogate the implica-
tions and challenges of claiming or applying the tenets of ESL in the context
of nature rights, beyond the scope of this brief chapter. However, there is clear
evidence of compatibility between them, and the opportunity for development
of each to inform the other. A discussion of critical perspectives on the
Anthropocene further suggested that the moral orientation of rights of nature
laws may inform the way in which ESL responds to these critiques,
acknowledging that in both concepts there remain many normative questions
still to be answered.
Rights of nature and ESL are emerging legal concepts grappling with
rapid, unprecedented and unpredictable ecological change; substantial uncer-
tainty about what the future holds; contested interpretations of Anthropocene
124 Alice Bleby
responsibility; and a diverse range of critical perspectives on environmental law.
Both are boldly pursuing transformative legal reform in this context. The
future development of these concepts, and the scholars dedicated to this end,
could benefit from a shared community of inquiry and practice, and the mutual
credibility to be earned through collaborative research efforts. Conceptually
and in practice, this exchange of ideas will be crucial to the elaboration of a
normative framework and legal architecture capable of protecting the Earth in
the Anthropocene.

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8 The ethical place of the non-human
world in Earth system law
Pathways of transformation
Rosalind Warner

Introduction
The non-human world is not widely acknowledged in mainstream interna-
tional law, however, recently there has been a resurgence of interest in various
ways of incorporating the non-human into thinking and practice. In addition,
there have been parallel or synchronous trends towards changing the focus of
international and environmental law to recognise a wider corpus of legal
subjects: the non-human. The attention of activists towards the non-human
parallels other political developments in the last few years: the deepening of
climate change and species extinction risks and consequences, the rising voice
of Indigenous and anti-colonial movements in national and international
organisations and law, and the spread of innovative narratives about the rela-
tionships between humans and nature, for example, the ideas of the Anthro-
pocene (Gaffney and Steffen, 2017); planetary politics (Burke et al., 2016;
Chandler et al., 2018; Oelschlaeger, 2014); and Earth system governance (ESG)
(Biermann, 2014). As described in the research program of the Earth System
Governance Project (ESGP), the contextual conditions prevalent in the
Anthropocene provoke a need to rethink and develop new policy and legal
instruments for identifying global roles responsibilities (Burch et al., 2019).
Such a reconsideration is also spurred by the need for a transformative
approach in light of the increasing urgency and complexity of human impacts
on the Earth system. The latter points towards the need to ‘more fully embrace
all present and future earth system constituents including humans and the non-
human world’ in order to bring Earth system governance and ESL into closer
alignment (Kotzé and Kim, 2019, p. 5).
Collectively, these trends point towards the emergence of a new con-
ceptualisation of law, termed Earth system law (ESL), which is evolving in the
context of the growth of environmental constitutionalism and changes in
environmental rights law. In an article outlining the research agenda for ESL,
Kotzé and Kim (2019) use international environmental law as a comparative
device to elaborate key distinctions and moves from an anthropocentric
international law towards an Earth-centric transnational law for all living
beings. This chapter will build on this comparative approach by examining

DOI: 10.4324/9781003198437-11
 The ethical place of the non-human world 129
various ways in which the expansion of the ethical community to include the
non-human world may inform an emergent ESL. In addition to the case of
international environmental law, the chapter will survey recent trends in
environmental constitutionalism, environmental rights, and case law, and
evaluate the representation of the non-human in these trends. It will argue
that if ESL is something distinct from international and environmental law,
then its transformative potential lies at least partially in its ability to articulate
alternative and effective normative approaches to the human/non-human
relationship.
Aldo Leopold eloquently elaborated the ethic at the heart of what he
termed the land relation in his Sand County Almanac, where he lamented that
‘there is as yet no ethic dealing with man’s [sic] relation to land and to the
animals and plants which grow upon it … the land-relation is still strictly
economic, entailing privileges but not obligations’ (Leopold, 1989, p. 238).
Just what types of status and obligations exist for the non-human world, and
how these might more centrally inform governance and law, remain vital
questions with ongoing currency and urgency. The mismatch between systems
of law and efforts at environmental protection in the context of the Anthro-
pocene are increasingly glaring and undeniable, from the failure to prevent
breaches of planetary boundaries to a persistent short-sightedness and reduc-
tionism (Kotzé and Kim, 2019). These gaps are symptomatic of a larger ethic
of anthropocentrism that fundamentally structures the edifice of law and legal
thinking about environmental problems. While there is little doubt that the
anthropocentrism of law is one of its most powerful epistemic assumptions,
law can also ‘respond to vigorous critical energies emerging in resistive
responses to patterns of injustice and environmental degradation’ (Kotzé and
Grear, 2015, p. 4). Normatively, ESL is able to introduce a novel legality with
a unique ethical framework of human-Earth enhancement, rights, and new
conceptualisations of property in harmony with an Earth-centric legal philo-
sophy in the face of these innovations, new thinking on law can be an effective
driver of changes in governance, policies and practices. Law can shape the
terms under which change happens, and an effort to more fully and coher-
ently incorporate the non-human into theory and practice can emerge
through legal deliberation. Western legal concepts and premises, such as per-
sonhood, property, and legal standing, can adapt to changes in thinking,
through the constructive evolution of their inherent ambiguities. Accordingly,
three distinct modes of change towards a more comprehensive ESL can be
identified: (1) through environmental constitutionalism; (2) through the con-
tinued and extended greening of human rights law; and (3) through increasing
synergies among diverse regimes of international law. For example, the
Whanganui River decision in New Zealand broke new ground on a legal front
and has implications globally, due to the norm leadership effect on other
jurisdictions. The pathway of building coherence between diverse regimes of
international law, with a particular focus on Indigenous law, is considered to
be the most promising, both for addressing the role of the non-human world
130 Rosalind Warner
in law and for instigating transformative changes in governance policies and
practices towards improved justice, adaptability and sustainability over time.
While law often lags, it can still lead.

Framing nature
While arguably visions of a more harmonious and deeper relationship
between humans and nature enjoy a lengthy pedigree in Western and non-
Western thinking, the explicit consideration of nature in bodies of law and
practice is relatively recent. For the purposes of brevity, this section will focus
on the developments at the international/global level, although the remainder
of the analysis will not only be confined to that level, as law is a multi-level
phenomenon with interactions between domestic, sub-national, national and
supra-national levels. Often, the language of rights has been used to frame the
discussion, either when offered as environmental rights, rights to a healthy
environment or even as non-human or nature rights (see also Bleby’s Chapter
7 in this volume). Human rights and an ethic of ecocentrism are not incom-
patible but can represent a continuum, such as is found in the Stockholm
Convention, which is said to use an anthropocentric/eco-centric approach
(Giunta, 2017). While glimpses of an alternative ethic of the non-human can
be found in these international instruments, for the most part, the Rio
Declaration (Shongwe, 2017), the Brundtland Commission Report, and out-
comes of the Earth Summit were unequivocally focused on the human, rather
than the non-human. The Brundtland Commission Report of 1987, which
coined the terminology of sustainable development, focused on human wel-
fare, including present and future generations, and proposed a pro-growth
anti-poverty position with little reference to the non-human. The Brundtland
Report had sought to resolve differences by focusing on the need for ecologi-
cally legitimate development in the Global South, and as Baker argues, to
rework the existing development philosophy with an acknowledgement of ulti-
mate limits imposed by the biosphere’s inherent ability to absorb the effects of
human activity (Baker, 2007). Neither the North nor the South were focused on
the non-human world at the Earth Summit, although the Earth Charter
affirmed ‘that all beings are interdependent and every form of life has value
regardless of its worth to human beings’ (Earth Charter, 2000, p. 1, preamble).
Consideration of framings of the human-nature relationship invites an analy-
sis of the ethics that underlie international institutions and laws. To the extent
that spiritual/ecological appreciations of wilderness and nature have been a fea-
ture of early international environmental movements and treaties around bird
migration, national parks, and species preservation, such framings draw on a
Western, and indeed, colonial, cultural well of spiritual wilderness imagery
(Callicott and Nelson, 1998; Cronon, 1996; Muir, 2001). Sustainability is some-
times cast in terms of this imagery, with its focus on limits and balance and in
some of its more ecological definitions. More technical terms such as carrying
capacity could also be interpreted in spiritual/ecological terms (Ben-Eli, 2007).
 The ethical place of the non-human world 131
The spiritual dimension might be understood as one addition to the trifocal
approach of social, economic and ecological domains that is common in
many mainstream approaches (Blewitt, 2008). Earth spirituality is also a fea-
ture of many of the world’s religions and is in line with traditional Indigenous
conceptions (United Nations Secretary-General, 2016). A recent example is
found in the messages of Earth stewardship coming from the traditional great
religions, for example, Pope Francis’s Encyclical of 2015 which was ‘the first
message in Vatican history to specifically address humanity’s relationship with
the environment’ (ibid., p. 5). Earth system care and references to Mother
Earth evoke this sense of human embeddedness and a norm of obligation and
responsibility. Earth jurisprudence similarly draws upon a spiritual/reverential
attitude towards nature. In sum:

The philosophy of Earth jurisprudence can be formulated under four

main principles: subjectivity: the Universe is a holism, with values and
rights; community: everything is related and coexists with everything else;
lawfulness and order: there are organizing patterns in the Universe and in
the Earth community that we can detect and understand; and wildness:
the order and lawfulness in the Universe remain dynamic, mysterious and
unpredictable
(ibid., p. 4)

Alternatively, spiritual appreciation for nature and its mysteries might be

considered alongside ecological approaches, which tend to encompass both
scientific approaches of human-nature interdependence, and deep ecology,
which takes an explicitly eco-centric value position in its concern with the
effects of pollution on ‘life as a whole, including the life conditions of every
species and system’ (Blewitt, 2008, p. 29). From these roots it is possible to
arrive at concepts such as ecological integrity. Adopted as a central concept
by the IUCN (World Conservation Union) and articulated in the Earth
Charter, ecological integrity refers to the full functioning of a suite of natural
processes which operate without human interference, including phenomena
explained by the sciences of biology, physics and chemistry (Mackey, 2004).
Here there are potential tensions between the spiritual and scientific views of
nature, since the dispassionate approach of science may be antithetical to an
ethic of caring that is embedded in spirituality. Scientific ecology implies a
kind of value-free impartiality that prioritises expert knowledge, while deep
ecology confronts the hierarchy of expert knowledge in favour of an ethic of
human awareness and sensitivity to the natural world (Blewitt, 2008). As
Naess (2005) has pointed out, an eco-philosophical rather than an ecological
approach is what distinguishes an ecological movement from other political
reform movements (an ecosophy).
International institutions and law have taken little account of critical
framings of nature that refocus the human vs. nature separateness of the
wilderness imaginary. Evolutions in thinking about the non-human in the
132 Rosalind Warner
work of Ramachandra Guha criticised the Western and Northern envir-
onmentalists’ imaginary of nature, with its colonialist overtones. Guha took
issue with wilderness eco-centrism in favour of a refocusing on the needs of
humans, specifically the poor. Guha sought to reposition the envir-
onmentalism of the poor as a deeply material response to Northern exploita-
tion (Guha, 2005). Vandana Shiva reinvests nature with its material and
productive survival qualities, while critiquing dominant scientific forms of
knowledge as violent, destructive and oppressive (Shiva and Berry, 2015).

The ethics of human-nature relationships and Earth system law

While the ethical arguments from intrinsic value often arise in opposition to
and as critique of anthropocentrism, it is a fallacy that this implies a complete
elimination of distinctions between human and natural worlds. In fact, to
couch arguments for nature in terms of inherent value and simultaneously to
argue for an erasure of the distinction between humans and nature would be
logically incoherent. The human-nature relationship, and the concomitant
questions of law, are constructed and discursive. Nature is a discursive phe-
nomenon, as is humanity. In some ways, the various efforts to address the
dichotomy end up reconstructing it, just with differing biases in one direction
or the other. At the same time, even as nature and the wild have faded with
the advent of the Anthropocene and the realisation that ‘the entire environ-
ment has become a built environment’ (Vogel, 2015, p. 4), these deliberations
have ever intensified, suggesting that the stakes over the future of the Earth
system have only grown in importance. This has been consistently the case
since Aldo Leopold first articulated the notion of an ethical community in the
form of the land ethic (Leopold, 1986). To speak of a land ethic as being a
relationship between land and people is to accept a distinction between them,
and the extension of the ethical regard to nature is to use the same human
communities’ mutual ethical regard as the measure of the kinds of ethics that
become assigned to nature. So, in this ontological sense, the ethic of intrinsic
value is not completely incompatible with an anthropocentric view. What is
unique about arguments from intrinsic value is their ability to add in addi-
tional ethical values that arise from the non-human, such as its inherent
mystery, immeasurableness, and intimacy with humanity. The entanglement
with nature is fundamental to being a human, since existence cannot be
understood except in terms of relationship with other beings, and modes of
existence (Peterson, 2001).
To the extent that it articulates an ethical equivalency between humans and
nature, speaking of harmony has the potential to reconcile the two Cartesian
poles. The idea of harmony is often represented in international institutions,
including declarations and statements, although it is not often articulated
deeply. The notion of harmony is already present in law and is part of the
discourse, so has the potential to be activated in deeper and more transfor-
mational ways. Framing the relationship between human and non-human in
 The ethical place of the non-human world 133
terms of harmony captures the complexity of anthropocentric eco-centric
tendencies and addresses the privileging of the human in legal decision
making, and so offers some promise of a move towards a more transforma-
tional approach to international environmental law. However, harmony can
become a facile concept unless it is buttressed with recognition of the intrinsic
value of nature and respect for its unique ecological processes and integrity.
Whether a reconciliation among these framings occurs and whether the lan-
guage of harmony with nature is able to fulfil its promise will largely rest on
whether these embed the notion of intrinsic value into law. The next section
will address the relative strengths and weaknesses of various pathways
towards more transformational approaches to law, examine in more detail the
implications of these framings for legal notions of property, personhood, and
standing, and explore ways forward in light of these different framings.

Environmental constitutionalism
Global environmental constitutionalism is a growing object of study, which
‘focuses on the manifestation of constitutional law, ideas, concepts and processes
in global environmental law and governance’ (Kotzé and Kim, 2019, p. 5). The
United Nations General Assembly Resolution 72/277 ‘Towards a Global Pact
for the Environment’ (United Nations General Assembly, 2018) is the most
recent example of this trend. This form of international environmental con-
stitutionalism has its precedents in the June 2012 UN Conference on Sustainable
Development in Rio, where the outcome document, entitled ‘The Future We
Want’ (United Nations General Assembly, 2012) explicitly recognised the Earth
and its ecosystems as the home of humanity and noted the emergence of the
rights of nature in the context of the promotion of sustainable development
(ibid.). Extending the most oft-cited definition of sustainable development as the
fulfilment of the needs of present and future generations, the document noted the
necessity to ‘promote harmony with nature’. Harmony with Nature is also
the title of a Note from the Secretary General and a series of virtual dia-
logues among experts in Earth jurisprudence begun in 2016, as well as a
United Nations General Assembly Resolution in 2009. The UN Sustain-
able Development Goal 12 (Ensure Sustainable Production and Con-
sumption) mentions the need for education and lifestyles in harmony with
nature (United Nations, 2017). These and other pronouncements are, as
Kotzé has documented, part of a strand that can be traced back in turn to
the World Charter for Nature of 1982 (Kotzé, 2014). Clearly, efforts at
creating coherent global systems of international environmental law under
the umbrella of environmental constitutionalism are not uniform but can
be widely varied in their framing of the non-human. As Kotzé argues,
there should be a differentiation between the Global Pact for the Envir-
onment and similar efforts such as the World Charter for Nature. In the
former, the Anthropocentric language of environment is favoured over
ecological integrity or even nature (ibid.).
134 Rosalind Warner
As international environmental law has begun to grapple with the implications
of the Anthropocene, and as the above attests, initiatives have emerged to better
incorporate the idea of environmental harmony. However, these efforts have
been subject to limitations that have resulted in thin international environmental
law that does not fully incorporate an ‘eco-centric ethic of ecological care’ (ibid.,
pp. 23–24). As stated by the Oslo Declaration for Ecological Law and Govern-
ance, an anthropocentric bias has made environmental claims weak and
ineffectual:

The difference between environmental law and ecological law is not merely
a matter of degree, but fundamental … The latter requires human activities
and aspirations to be determined by the need to protect the integrity of
ecological systems. Ecological integrity becomes a precondition for human
aspirations and a fundamental principle of law. In other words, ecological
law reverses the principle of human dominance over nature.
(Ecological Law and Governance Association, 2016, p. 1)

While these trends have the strength of upsetting the privileging of the human
in environmental law, and the convening power of environmental con-
stitutionalism is considerable, it remains an open question whether advances
towards a planetary understanding of law might not be a necessary pre-
condition for ESL to advance, as a whole. At the same time, the paradox of
environmental constitutionalism is that a singular focus on elevating one ver-
sion of harmony may undermine its primary advantage by neglecting more
diverse approaches, which may be as effective, and as legitimate, as any
others. As described above, to date, environmental constitutionalism has
relegated the non-human to a secondary place, thereby reducing the impact of
non-anthropocentric and non-instrumental approaches to the non-human that
might refocus the energy towards a stronger recognition and respect for the
intrinsic value of nature.

Environmental rights
A regime of environmental rights is emerging alongside the trend towards
environmental constitutionalism, such as that exemplified by the examples of
Ecuador and of Bolivia, which recently adopted constitutional provisions for
environmental rights. For the purposes of analysis, a distinction can be made
between a greening of human rights (i.e. a gradual expansion of human rights
to encompass environmental rights, such as a right to clean water) from an
analogous application of the ethical foundation of human rights to non-human
entities.
The former (greening of human rights) involves the progressive entrench-
ment of new forms of human rights in national constitutions and interna-
tional conventions, and it has proved wildly successful. Today, more than
three-quarters of the world’s national constitutions (149 out of 193) include
 The ethical place of the non-human world 135
explicit references to environmental rights and/or environmental responsi-
bilities. This includes the majority of nations in Africa, Central and South
America, Asia-Pacific, Europe, and the Middle East/Central Asia (Boyd,
2014). The entrenchment of environmental rights in this vein can represent a
concerted effort to recognise a stand-alone environmental right, often expres-
sed as a right to a healthy environment or a right to environmental well-being
and may or may not involve recognition of nature rights or intrinsic value of
nature. There is a well-developed debate ongoing about whether rights law can
incorporate an ethical concern for the non-human, given its anthropocentric
biases (Bosselmann, 2015). Nevertheless, as the Ecuadorian and Bolivian
examples suggest, recognition of environmental rights may facilitate greater
recognition of the non-human by refocusing dialogue about the environmental
basis for human life and state sovereignty. Although uncertainty and ambiguity
governed responses to the inclusion of the environment in the developments
around the Rio Declaration (Shelton, 1992), as Shongwe argues, these uncer-
tainties have given way to a progressive convergence of environmental with
human rights law, exemplified by, among other things, the Arrhus Convention
on Access to Information, Public Participation in Decision Making and Access
to Justice in Environmental Matters, which includes the states recognising that
their citizens have a right to live in a healthy environment – and that they also
have to protect and improve that environment not only for present generations,
but also for those to come (Shongwe, 2017). In turn, as many countries have
incorporated aspects of the Biodiversity Convention and species protection
already into their systems of law, bringing an environmental right together with
existing species-protecting legislation may constitute a logical step towards
recognition of the intrinsic value of non-human nature. Switzerland, Brazil,
Sudan, South Sudan, the Maldives, Egypt, India, Bolivia, and Ecuador are
among those countries that include constitutional protections for species
threatened with extinction (Boyd, 2017). Ecuador’s 2008 Constitution recog-
nises both the rights of nature and of humans, thereby reinforcing the distinc-
tion between them, but places a special obligation on humans to respect the
right of nature to exist, to be valued in its own right, and to be regenerated and
restored (ibid.). Such convergence has been characterised as a greening of
human rights law.
The second approach, which is to adapt human rights itself to incorporate
analogous rights for the non-human world, has also experienced growth and
innovation. Rather than creating a new class of law or a distinct class of laws
for non-human nature or for environmental rights, the greening of human
rights or humanisation of environmental law further asks why the current pro-
visions of rights enjoyed by humans cannot simply be applied to animals and
other non-human entities. The Kerala High Court asked a similar question as
to whether the fundamental rights to which humans are granted cannot simply
be extended to animals (ibid.). Interestingly, these innovations take a different
tack from either Shongwe or Boyle in reconciling environmental rights with
human rights: the recognition and articulation of the non-human as a subject
136 Rosalind Warner
of law, policy and regulatory action. Again, there are acknowledged limitations
to this adding-in approach, particularly the potential for rights to become dis-
torted and paradoxically to be used to legitimate further destructive practices
(Bosselmann, 2015).
International human rights law often invokes the concept of legal person-
ality and legal standing to grant recognition for human rights claims, as per-
sonhood confers status, is ingrained deeply in law, notably in human rights
law (Ohlin, 2010). There is no logical link between legal personhood and the
ordinary understanding of what is a human. Legal rights are not identical to
human rights, despite the use of the term personhood. As with corporations,
legal entities are able to make contracts, own property, and make claims that
can be enforced. This last point is key, since legal rights without clear
demarcation of the responsibilities and rights of the parties that can be
enforced, especially the appointment of agents or guardians for nature, are
weak (O’Donnell and Talbot-Jones, 2017).
Significantly for the non-human world, legal personality and standing
sometimes have excluded even representatives wishing to make claims on
behalf of nature, and so personhood, while fundamental, is no guarantee of
ethical recognition and equal respect. For example, in the 1970s the Disney
Company applied for a permit to build a ski complex in the Mineral King
Valley, a glacial valley in the southern Sierra Nevada mountains. In June
1969, the Sierra Club filed a Federal suit in the Northern District of Cali-
fornia court to attempt to stop the project. In an April 1972 decision, the
Court rejected the suit on the grounds that the Sierra Club had not estab-
lished that it was suffering direct harm as a result of the Forest Service’s
actions (Lawlor, 2021). Justice, William O. Douglas, was convinced of the
Sierra Club’s initial arguments and wrote a stirring rebuttal arguing that
nature itself should have standing. Drawing on precedent which had provided
legal standing to inanimate objects such as corporations and ships Douglas
argued that ‘accepting nature’s rights and nature’s voice in the courtroom’ was a
way to protect in a lasting way the natural values which were under threat from
development. (Stone, 1972, p. 5). Although it was not successful, this rebuttal
had reverberations through the environmental movement. This experience sug-
gests, however, that little progress can be made on this front by purely relying on
the granting of personhood or legal standing alone, but that such standing
should be accompanied by the extension of additional ethical characteristics to
the non-human, analogous to those in human rights laws: especially intrinsic
value. Furthermore, as Bosselmann cogently argues, ‘using a human rights fra-
mework to provide for environmental protection cannot in itself lead to the
much-needed elevation of ecological sustainability’ (2015, p. 534).
Often, linkages with human rights draw upon a spiritual and philosophical
ethic to make the argument for nature’s right to exist. For example, Article 71
of the Constitution of Ecuador recognises the right of nature to exist, as does
the ‘Universal Declaration of Rights of Mother Earth’, adopted at the World
People’s Conference on Climate Change and the Rights of Mother Earth,
 The ethical place of the non-human world 137
held in 2011. The 2012 International Union for the Conservation of Nature
(IUCN) Resolution and the IUCN World Commission on Environmental Law
proposed the formal adoption of a draft World Declaration on the Environ-
mental Rule of Law, which provides that ‘All life has the inherent right to exist’
and the International Rights of Nature Tribunal was established as part of the
Paris Accords (United Nations Secretary-General, 2016, pp. 8–11).
Similarly, this somewhat nullifies a perceived opposition between human
and natural rights, since

these rights are not in opposition to human rights: as part of Nature, our
rights are derived from those same rights. The human right to life is
meaningless if the ecosystems that sustain us do not have the legal right
to exist.
(ibid., p. 36)

In sum, a nature right to exist may be a necessary, but not sufficient, condition
for the full incorporation of nature rights within the context of an evolving rights
ethic. However, this must be able to incorporate some reflexiveness about the
existential nature of humanity and the entangled relationship with nature,
something that an eco-centric ethical viewpoint can prompt. As well, there
should be some attention given to the potential for environmental rights to
trump nature rights, since the ethical implications of the intrinsic valuation
of nature are not fully developed within the current discussion about
environmental rights.
To further this and on the global governance side, David Boyle (2012) adds
that a simple greening of existing human rights law is insufficient, given the
extremes represented by climate change, and that any recognition of an
environmental right must refer to a public interest over and above states’
rights to economic development in order to form a stand-alone right capable
of effectively balancing environmental rights against competing economic
development objectives. The question becomes how to balance various forms
of human rights, be they environmental (in the sense that these underpin
existing recognitions of economic, social and cultural rights) or economic or
social (right to development). Boyle suggests that climate change has made
these questions more acute, not less, and so by extension it is possible to
identify an emergent planetary politics of concern with global environmental
problems as corresponding with an impetus towards environmental rights
broadly conceived as distinct from the human rights regimes. Neither
Shongwe (2017) nor Boyle (2012) argue outright that human and environ-
mental rights should be conflated, just that their reconciliation is less chal-
lenging than it may appear. For Shongwe, the reconciliation takes the form of
the primacy of human rights law, and for Boyle, it takes the form of a
mechanism for articulating a public, and even planetary, interest in environ-
mental rights. To the extent that either pathway might develop a framing of
nature based on harmony that reconciles the paramountcy of intrinsic value,
138 Rosalind Warner
environmental rights law may be able to address itself to the ambiguities of
the human/non-human relationship in more transformative ways.

Regimes of international law and case law

Considerable attention has recently been given to the fit and tension between
the older tradition of human rights law and the newer emergence of environ-
mental law, some of which, as with Earth jurisprudence and environmental
constitutionalism, are beginning to challenge the fragmentation between these
legal spaces. Rather than representing a new coherent emerging body of law,
the increasing attention to comparative analysis of diverse legal regimes is
more of a strategy and process than it is a final endpoint. In this sense, an
analytical perspective that takes seriously the degree of cultural diversity
around nature, while simultaneously recognising the colonialist roots of par-
ticular framings of the non-human world, can go a considerable way to
bridging the gaps between different framings, and consequently different
ethical foundations, for the human-nature relationship. Indeed, examples
already exist in case law and in international legal precepts that point towards
a process of reconciliation and modest coherence of differing visions of nature
and different bodies of law.
For example, there is no doubt that Indigenous beliefs concerning humans’
relationship with nature are strongly at odds with conventional Western lib-
eral anthropocentric ideas (Magallanes, 2015). In Western jurisprudence,
property is the underlying principle that governs the question of personhood
and standing, since standing is earned by the ability to demonstrate loss or
damage, something that requires reference to ownership or interest (Bossel-
mann, 2015). Alternatively, the exercise of a public interest in environmental
protection might be claimed (such as by the Sierra Club in the example
above). However, in the context of Earth system governance, this in turn begs
the question of which public interest has the strongest claim. The political
movement of global Indigenous peoples across borders to have their rights
and beliefs respected within their own historical and political contexts
demonstrates a kind of complexity and ambiguity around legal personhood,
sovereignty and property that provides a possible inroad for more transfor-
mative ecological ideas.
The UN Declaration of the Rights of Indigenous Peoples is an elaboration
of existing and much more general human rights instruments. Indigenous
cultural rights can be viewed as rights to ‘have their special relationship with
the natural world recognised and upheld in law, within a Western, liberal
democratic legal system’ (Magallanes, 2016, pp. 274–275). Interestingly,
although the UN Declaration mentions and upholds property rights (as in
intellectual property rights) as such, it also reinforces treaty rights and cul-
tural rights that indirectly support the protective norms and values of Indi-
genous peoples towards nature. In particular, these developments have
addressed key barriers towards ecocentrism, such as Western jurisprudence
 The ethical place of the non-human world 139
around property rights and sovereignty (Strack, 2017). As a colonial con-
struction, the claim to property rights remains exceptionally powerful as a
means of limiting the terms of and domains within which new arrangements
can be made. The exclusivity of property rights lends material support to legal
claims that treat nature as a highly divisible and reductive object for the single
purpose of human use.
To the extent that the greening of human rights, declarations of harmony
between humans and nature, and the growth of environmental con-
stitutionalism neglect to question the centrality of property rights, the
accompanying framework of sovereignty, and the historical development of
colonial relations of power, then they will continue to prop up destructive
legal and political arrangements.
While courts and laws are capable of extending personhood and legal
standing to nature, and have done so often in the past, there is a real question
whether this will simply reconstruct nature anew within the norms and rela-
tionships established by Western colonial jurisprudence, and thereby contain
the transformational impact of otherwise transformative legal moves. After
all, as seen in the judicial arguments in Sierra Club v. Morton, ships have had
access to legal identity and standing for centuries, and yet this has not in any
way changed the ethical perception of them as essentially property objects.
While any survey of environmental history will show that progress is
possible within the dominant legal frame, it is precisely the failures of
existing politics and law to grapple effectively with the needs of environ-
mental protection that have led to a search for more innovative approaches.
Even in the Morton case, the failure of the dissenting arguments led to a
series of precedents that weakened the standing of nature in subsequent
cases, leading at least one observer to conclude that ‘nature has yet to stand
alone in court’ (Sowards, 2015, p. 5).
The extension of personhood to nature therefore greatly benefits from the
link with human rights, which provides a corresponding ethical, and not just
practical, justification for nature protection beyond narrow human interests.
In addition, the creation of a new category of ownership of property by
itself does not provide Indigenous peoples similarly exclusive rights to the
enjoyment of that property and so is in a way less complete in its implica-
tions for the sovereignty rights of Indigenous peoples. In addition, notice
should be given to the historical tendency of nature rights à la wilderness
protection to displace Indigenous peoples from land and therefore to
deprecate their particular framings of nature. For example, the removal of
Indigenous peoples from wilderness-protected areas has been one unantici-
pated outcome of the entrenchment of the rights of nature provisions in the
Ecuadorian Constitution (Akchurin, 2015).
Property rights are therefore ambiguous in the degree to which they may
act as a barrier to the integration of non-human nature. Nevertheless, it is fair
to argue that any approach that reduces nature only to property is proble-
matic in terms of the ultimate goal of nature protection, and that Indigenous
140 Rosalind Warner
law is pushing the boundaries of property and legal standing in innovative
and even transformational ways. Ultimately, Indigenous claims and legal
arguments up-end norms and values that uphold the anthropocentric frame-
work of law, towards an increasing recognition that nature is beyond prop-
erty: that it is unownable, and therefore that is it endowed with intrinsic value.
As such, the UN Declaration on the Rights of Indigenous People is one
model for how holistic ecological views of nature might be reconciled within
the context of Western law that otherwise relegates innovative ecological per-
spectives to the margins. Indigenous perspectives also merge an ethic of care
and intimacy with nature together with a recognition of its essential necessity
for human well-being and thriving.
Since the exclusion of Indigenous cosmologies from Western systems of law
enabled and facilitated the destruction of both Indigenous and colonial peo-
ples and nature, it consequently also weakened and compromised any nascent
environmental protective capacity that might have been found within Western
systems of law (Magallanes, 2015; 2016). In short, the legal and philosophical
basis of standing in Western jurisprudence tends to be unfavourable to the
extension of standing to nature at least in part because of the privileging of
the language of property, which supported colonial practices, as the frame for
legal cases claiming damage and loss. To the extent that claims of sovereignty
are analogous to the rights of property over specific territories, then the same
limitations also might also be understood to act internationally. In other
words, the necessity of couching legal claims for damages and loss to the
rights of sovereign states, as opposed to those of nature itself, may inhibit the
ability of states to fully recognise and realise more permanent and stable sets
of environmental protections. Thus, liberal Western law and Indigenous and
colonial cosmologies exist in a reciprocal relationship in which they have co-
evolved, although not equally, since Indigenous views have been subordinated
to the dominant discourses. The contrasts between Western rationalist and
individualistic views that give rise to property relationships, and the commu-
nitarian, holistic, kinship and obligation-based views of Indigenous peoples
occupy a paradoxical and ambiguous ethical space.
The nature-as-rightsholder approach on the surface appears to lean
towards a spiritual/ecological framing of nature, however, a closer look
reveals that there are strong components and elements of ideas of universal
harmony also animating recent case law led by Indigenous movements, and
emerging regimes of international law. Anthropocentric and property-based
systems of norms, laws and governance present barriers to the expansion of
the ethical community that is implied within the idea of ESL. These barriers
arise from the historical context in which notions of international law have
emerged, and the political push and pull of colonial relationships of power
that have tended to circumscribe spaces for activism that might advance
deeper notions of ecological protection. Opportunities to expand these spaces
exist (Table 8.1) and are exemplified in ecological critiques of anthropocentr-
ism, and in legal instruments such as the UN Declaration of the Rights of
 The ethical place of the non-human world 141
Table 8.1 Comparative analysis of ESL pathways
International law/ Human rights Legal regimes/case
constitutionalism law
Illustrations Global Pact for the Lake Erie Ecosystem UNDRIP
Environment Bill of Rights Whanganui
World Charter for Constitution of Sierra Club v.
Nature Ecuador Morton
Yamuna River in
India
Core principles Harmony with Legal personhood, Beyond property,
nature as a thin property and the reconciles an ethic
concept right to exist of care with survival
value
Promises Concept of harmony Right to exist Reconciliation
among framings of
nature, colonial
resistance, intrinsic
value
Pitfalls Limited by colonial Necessary but not Lost in translation?
legacies of property sufficient without
and standing intrinsic value,
ahistorical

Indigenous Peoples (UNDRIP) that have carved out innovative spaces for the
articulation of more holistic and ambiguous governance arrangements.

The Whanganui River decision

After 140 years of negotiation, the Whanganui River decision represents a
breakthrough in recasting the legal and ethical relationship between human
and non-human worlds. The decision made in 2012 grants the river the legal
rights of a person under the name Te Awa Tupua (Wilton, 2014). The decision
includes ‘recognition of the Whanganui River in its entirety as a living being
and legal entity’ (Hsiao, 2012, p. 371). Articulating the concept of Te Awa
Tupua, in which all of the physical and metaphysical elements of the area are
inextricably intertwined with the health, identity and well-being of the (Maori)
people, means that protecting the river is ‘equivalent to protecting the people’
(ibid., p. 371). New Zealand’s innovation recognises the spiritual and holistic
personhood of the Whanganui River and Te Urewera (which now have no
owners) as part of the state’s ongoing settlement process with the Maori peo-
ples. The Maori people consider that the river and forest are their ancestors,
and that they have the responsibility and the privilege to care for them as
family members (Magallanes, 2015; United Nations Secretary-General, 2016).
The innovation of granting personhood to the river constitutes the closest
equivalent that conventional common law can do to replicate customary
142 Rosalind Warner
tenure (Strack, 2017). Importantly, then, the most recent legal decisions state
that the ownership of the river was not transferred through treaty from one
people to another but rather, ownership was transferred to itself. Ownership by
itself is the basis for the recognition of legal personhood. Interestingly the legal
innovation of personhood in this case arises from the spiritual relationship
between the Maori people and the river, defying the ethical separation between
humans and nature and recognising in law the indivisibility of natural entities
and human cultures. To the extent that the wholeness of the river and its indivi-
sibility can mitigate the effects of the exercise of property rights, it may be a
fruitful path through the dichotomies created by the framework of nature as a
natural resource which ignores the mutual relationships of ecological
interdependence that are obscured by notions of exclusive property rights.
The Whanganui River decision represents an innovation in the notion of
property ownership, however, it is not a complete replacement of property
rights, but rather a mitigation of those (ibid.). The notion of trusteeship
through which governance of the river will be administered draws upon
Maori spiritual and cultural concepts that have been articulated through the
process of settling claims through the Waitangi Tribunal process (Rodgers,
2017). Despite appearances, Stack argues, the decision is less a return to the
recognition of customary rights than it is an assertion of colonial control with
the state retaining sovereignty and accomplishing its goal of mitigating and
managing social conflict. These settlements exist deliberately as the privilege
of Western governments to grant, meaning state sovereignty is never com-
promised (Strack, 2017). Nevertheless, to a considerable degree, the evolution
of the Whanganui decision resolves the tension discussed above by creating a
new and unique class of personhood which is simultaneously both human and
non-human, while also being non-property-based.

Conclusion: pathways to transformative Earth system law

If it is true that an emergent system of ESL might be more fit for purpose than
the existing patchwork of silos among human rights law, environmental con-
stitutionalism, and emerging Earth jurisprudence, then one may ask, what is
the most suitable way forward? This chapter posits three possible pathways
offering distinct modes of change towards ESL: (1) through environmental
constitutionalism; (2) through a further greening of environmental human
rights law; and (3) through increasing synergies among regimes of international
law and through a growth in case law as precedent for other jurisdictions. While
environmental constitutionalism and further evolutions of human rights law
show promise towards a re-imagining of the human/non-human relationship,
progress remains contingent on the continuing ambiguities around property,
personhood, legal standing, intrinsic value, and the right to exist.
The Whanganui River decision led immediately to the Ganges River deci-
sion, which cited the New Zealand jurisprudence in its subsequent ruling that
the Ganges River had the same legal rights as human beings (Safi, 2017). The
 The ethical place of the non-human world 143
transformative potential of these legal innovations lies in their pointed focus
on changing the frame of the human-nature relationship and rethinking ‘how
subjects and objects of ethical responsibilities are redefined in the Anthro-
pocene’ (Burch et al., 2019, p. 6).
Whether or not the expansion of the ethical community as described in the
limited terms of the Whanganui decision can lead to a new kind of cosmopolitics
of governance and subversion and of regulation and resistance, operating in
various spaces over time, is unknown (Burke et al., 2016). One question is whe-
ther an Indigenous holistic ecological viewpoint is translatable from a particular
national and legal system designed around a unique colonial history, to other
national or even international systems.
Despite scepticism about whether new innovations arising from the dis-
tinctive legal culture and history of one country can be translated to other
contexts (Rodgers, 2017) there can be room for learning. The development
of the United Nations Declaration on the Rights of Indigenous Peoples
represents a promising pathway that reconciles key tensions in interna-
tional law and ethics of the human/non-human relationship. The possibi-
lity to normalise the Indigenous constructions of the non-human could
ultimately ‘better protect a healthy environment for everyone’ (Magallanes,
2016, p. 275).
Modernity’s bifurcation of reason and nature persists and continues to
privilege humans above Gaia, however, there is a real sense in which pro-
jects to acknowledge the intrinsic worth of the non-human can straddle, and
even defy, this divide. To move the law towards personhood for nature is to
recognise the analytical distinction between humans and nature while
simultaneously upsetting the overly dichotomous categories that currently
imprison thinking. If adaptation to a changing world is necessary and fore-
seeable, and if this is bound to be a planetary project and not only one for
specific locales and peoples, then it is difficult to imagine how it might occur
without a reconsideration of the ethical basis of the current conventional
legal discourse.
As shown above, the expansion of the ethical community to include the
non-human world may inform an emergent ESL. The framing of humans in
harmony with nature has the strength that it can redress the anthropocentric
bias by re-embedding humans in natural and ecological systems, however, the
concept of harmony (and for that matter, human) still needs development,
especially in environmental constitutionalism, if it is to be created in ways
that can reinforce the notion of the intrinsic value of nature. While different
framings can be found in various bodies of law, the potential for reconcilia-
tion of eco-centric and anthropocentric ethics is strongest at the intersection
of regimes of international and domestic law. In particular, the co-evolution
of indigenous systems of law, including those already acknowledged in inter-
national law, such as the UNDRIP, offer rich possibilities for building an
ethic of responsibility towards the non-human world that effectively reconciles
human and non-human rights claims in the context of a recognition of
144 Rosalind Warner
nature’s intrinsic value. This is due to the claims made through Indigenous
law with regard to anti-colonialism, resistance to the exclusive norms and
rules of property that underpin the notion of personhood, the focus on the
right to exist, and the embedding of nature’s intrinsic value in the practical
and material questions of governance. In the end, as postmodernist theorists
have been saying for some time:

The only ethical way to act in a world that is socially constructed is to

respect the voices of the “others”—those with whom we share the planet
but with whom we may not share a common language or outlook. There
is, in other words, a limit or guiding principle to our actions, a principle
of respecting “otherness”.
(Wapner, 2002, p. 183)

This idea is not new, it was first elaborated by Aldo Leopold in his seminal
work, A Sand County Almanac as the notion of a land ethic (Leopold, 1986).
Nevertheless, it is being given a new spirit in the era of Earth system gov-
ernance, urged on by the increasingly necessary process of protection and
guided by the sense of shared futures and a common fate on the Earth for
both humans and non-humans.

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Sierra Club v. Morton 1972.
9 Legitimacy and the role of law for
social and ecological resilience
Brita Bohman

Introduction
The Earth system is facing unprecedented accelerating change in light of the
Anthropocene, affecting ecosystems on all scales (Crutzen, 2002). As a con-
sequence, the prerequisites for sustainable social systems, i.e. social resilience,
have also been fundamentally changed. This situation entails challenges for how
law can be effective both in governing the ecosystems and in upholding or fos-
tering social stability and well-being. The aim of this chapter is to analyse and
discuss the different roles of law in achieving social and ecological resilience in
the epoch of the Anthropocene, with particular focus on the role of law for social
resilience (Folke, 2006; Rockström et al., 2009; Steffen et al., 2011).
Social-ecological resilience provides an important theoretical approach
to define Earth system governance. As the concept of interconnected
social-ecological resilience acknowledges, the interplay between social and
ecological systems is an interdependent relationship where ecological resilience is
equally dependent on social resilience. On the one hand, law must be adjusted to
be able to meet ecological complexity and provide for ecological resilience. On
the other hand, law must safeguard and provide for social resilience through
features such as equity and legitimacy. The question in focus in this chapter is
how law can foster both of these two sides of the resilience concept and to what
extent these different roles of law are compatible and aligned, or perhaps con-
flicting, if they connect at all.

The Anthropocene and Earth system law

The Anthropocene concept is still being debated and can be applied in dif-
ferent ways. It can be seen strictly as a geological term, or metaphorically as a
way to reflect the changes in the Earth system. Whichever perspective is
chosen, the Anthropocene is tightly tied to Earth system science (Zalasiewicz
et al., 2017). Earth system science today shows that the countless ways in
which human activities are affecting the ecosystems on all scales, through, for
example, pollution and the exploitation of natural resources, are actually
leaving irreversible geological traces on the Earth (ibid.). This fact is a

DOI: 10.4324/9781003198437-12
 Legitimacy and the role of law: resilience 149
significant signal of unprecedented changes in the Earth system and makes a
strong argument for why significant changes must be made in the way ecosys-
tems are governed. Earth system governance and Earth system law (ESL), seen
through the Anthropocene lens, provide approaches to meet this Earth system
change from the perspective of an overarching global spatial scale (Steffen et al.,
2011). Law and governance must act on smaller scales in practice to match both
ecological and social dynamics. However, as a theoretical tool, addressing
environmental change on a global scale is useful in order to see the all-encom-
passing change and what it leads to. The planetary boundaries research ties these
perspectives together and shows the risk that all ecosystems, when seen together,
pose to the crossing of critical thresholds that could lead to large, non-linear and
potentially irreversible changes at both the local and global scales (Biermann et
al., 2016; Folke et al., 2011; Rockström et al., 2009). Such a perspective clarifies
the goals to be achieved by the operationalisation of governance on other scales
and connects local and global problems.

Theory and background

The theories behind the Anthropocene and Earth system governance empha-
sise a complex and intertwined relationship between the human and the nat-
ural systems, i.e. the social and the ecological. The Anthropocene provides a
perspective that highlights the impact of human activities on the Earth system
and how human activities are both driven by, and themselves driving, the
accelerating ecosystem change (Rockström et al., 2009; Zalasiewicz et al.,
2017). Human activities shape the conditions provided by the ecosystems. In
return, the conditions created by the ecosystems as a result, such as abrupt
change, threshold effects, tipping points and other unpredictable patterns,
affect the conditions for humans and their access to resources. As a result, in
the Anthropocene, it cannot be assumed that the Earth system will continue
in the same somewhat predictable manner as in the Holocene (Stephens,
2018). Because of this, the Anthropocene poses a significant risk for different
kinds of humanitarian crises. Altogether, this calls for new approaches in law
and governance with a specific focus on human social systems.
In a parallel picture to the one provided above of the Anthropocene and
the Earth system, the concept of social-ecological resilience describes the
complex interconnectedness between social and ecological systems, and that
these systems cannot be separated (Biggs et al., 2015a). The resilience concept
provides a theoretical framework for how to address the problems in focus of
the Anthropocene. For the purpose of this chapter, despite acknowledging this
interconnectedness between the social and the ecological systems, the concept
of social-ecological resilience will be divided into the features necessary for
ecological resilience and the features necessary for social resilience. The term
social-ecological resilience or resilience governance will be used to reflect the
established governance principles for resilience and the legal research
attached. Because the aim is to explore social resilience separated from these
150 Brita Bohman
established governance principles, social resilience will be discussed as a con-
cept of its own. The reason behind this is that the concept of governance of
social-ecological resilience (resilience governance) primarily emphasises features
important for resilience of the ecosystems and focuses less on the prerequisites
for social resilience (Bohman, 2021; Lövbrand, 2015; Rockström et al., 2009).
Social resilience can be seen to include features for a society to cope with,
transform or adjust to changed ecosystem conditions in a way related to resi-
lience governance (Brown, 2014). However, social resilience must also rest on
other values to enable such functions in a society. In the analysis social resi-
lience will be compared to and reviewed together with the acknowledged and
already established governance principles for social-ecological resilience as a
concept thus held separate from that of social resilience.
The main perspective of law in this study is of law as part of a wider gov-
ernance system. Law forms important institutional structures in such govern-
ance systems but acts alongside a wide range of actors and across many scales
(Commission on Global Governance, 1995). Given the picture of the kind of
geological force that human beings can be, of course, human actions must be
carefully weighed and restricted to protect the ecosystems. It may seem trivial
to focus on issues such as legitimacy and other aspects of human social systems
in this light. However, legitimacy and other values that form social resilience
are necessary for establishing stable, effective, institutional structures that form
the base of governance, the main instrument for steering human action and
environmental protection (Young, 2009). In a governance system, effectiveness
is based on both attempts at problem solving, such as actually finding matching
measures to an environmental problem, and on effective processes, related to
legitimacy. Such structural and procedural components of an institutional
structure can also be described as institutional through input legitimacy, which
reacts with political input and results in the institutional output, i.e. effective-
ness and outcomes in terms of laws, decisions, etc., relating to the problem in
focus (Cadman, 2017; Schmidt, 2013; Schmidt and Wood, 2019). Law has an
important role in establishing legitimacy through inter alia participation, access
to justice and information, as well as setting up a structure for the fair dis-
tribution or access to resources. Justice and fair trade-offs are additional
aspects of what may be important for social resilience in relation to the accel-
erating Earth system changes, that all are related to legitimacy. Different
aspects of social resilience, such as the evaluation of social values or legal
principles and political or economic trade-offs ,are always part of a governance
strategy (Schoon et al., 2015). Hence, it follows that these aspects also need to
be addressed in the framework for establishing a governance system.

Legal legitimacy
In legal terms, laws are not effective if they are not broadly accepted and
regarded as legitimate. Simply put, legitimacy is connected to the willingness
to comply and act according to what is decided. Moreover, for a law to be
 Legitimacy and the role of law: resilience 151
legitimate, the institution creating the laws must also be accepted as
authoritative and acting on legitimate grounds (Bernstein, 2005). Legitimacy in
this sense does not concern whether a rule or a decision is the correct one, that
is related to the effectiveness of the output or the problem-solving effectiveness.
Legitimacy is only a measure of the acceptance of the procedure for adopting a
certain rule or decision. Because of this function of legitimacy, those subject to
rules or decisions will accept them and comply (Bernstein, 2005; Bodansky,
1999). The issue of legitimacy has significant practical implications for the
future development of international environmental law and especially ESL. In
international law, legitimacy is the basis of the willingness by states or other
actors to accept institutions or treaty bodies, to include mechanisms with
authority to review compliance and make binding decisions. Besides the
increased effectiveness of laws due to increased compliance, such mechanisms
will also evidence effectiveness because they may enable other forms of law-
making that takes into account the fast-changing and unpredictable conditions
connected to the Anthropocene and the continuing Earth system changes. In
order to react to environmental changes, law needs, for example, to be equip-
ped with more adaptive and flexible mechanisms than traditional decision-
making procedures (Bodansky, 2007; Bohman, 2021; Folke, 2006; Rockström
et al., 2009; Steffen et al., 2011). Moreover, legitimacy is important in relation
to access to or distribution of resources, which may become a central issue in
the Anthropocene. The increasing complexity and uncertainty connected to the
Anthropocene pose a whole new range of challenges for legitimacy in law and
governance, while at the same time increasing the need for legitimacy and
accountability in order to be more effective, in terms both of process and of
problem solving (Biermann and Gupta, 2011). Hence, the role of law for resi-
lience must be analysed both in terms of its role in the governance of ecosys-
tems – its problem-solving capacity, directly related to the environment
(ecological resilience) – as well as in its procedural capacity – its role for gov-
erning society and creating justice (social resilience). ESL must enable and
combine both of these functions.

Method and objectives

With the theory and background described above as a stepping-stone, the
aim of this chapter is to analyse the challenges for ESL in the Anthro-
pocene through the theoretical framework of social-ecological resilience.
The chapter especially aims to explore the concept of social resilience. The
main focus will be to compare the specific role of law for social resilience
with the more established role of law for resilience. To this end, the study
sets out, first, to establish what social resilience encompasses and demands
from law, and, second, to analyse how law can combine its role for eco-
logical resilience with its role for social resilience. The questions in focus
of this chapter are:
152 Brita Bohman
 What is social resilience and what are the values or social resilience
principles that must be addressed in light of the Anthropocene?
 What is the role of law in addressing and providing for social resilience
based on these identified values or principles?
 To what extent is the more established role of law in resilience governance
compatible, or aligned, with the role of law specifically for social resilience?

The previous research on social-ecological resilience is extensive. It includes

both specific studies on social resilience and an increasing number of legal
studies. The study in this chapter builds on this previous research. The pre-
vious research on social-ecological resilience has often been based on specific
case studies. This chapter will not study a specific case. Instead, it takes the
research on resilience governance and adds new perspectives through a study
on how social resilience has been interpreted in research and an analysis of
what that means in terms of law. The chapter will mainly concentrate on the
role of international and, to some extent, European Union environmental law.
The study starts with an overview of the concept of social-ecological resilience,
in the next section. This forms a brief presentation of how social-ecological resi-
lience is understood in the study. The section includes a review of the general
established principles for resilience governance and how they have been inter-
preted in terms of law. Resilience governance and the role of law are the basis
against which the more specific review of social resilience will be compared and
measured. Thus, the study continues with a review of research on social resilience
and how it can be understood from a legal perspective. The different perspectives
are combined and analysed to provide a picture of what ESL must provide in
light of the Anthropocene.

Social-ecological resilience
Social-ecological resilience is a theoretical framework for research on
environmental governance and management with a transdisciplinary perspec-
tive (resilience governance). With the given conditions of accelerating Earth
system changes, as stipulated by the Anthropocene, the idea of sustainability
or sustainable development is increasingly viewed as an ill-fitting description
(Benson and Craig, 2017; Davidson, 2010). Instead, social-ecological resi-
lience is regarded as a useful concept to better picture the complexity related
to Earth system changes.
Social-ecological resilience is generally described as a concept for assessing
the resistance to pressures. In an environmental context, resilience is seen as a
state where the ecosystem can cope with threats, such as pollution or deple-
tion of biological resources, and still sustain its main structures and functions,
thus avoiding collapse or abrupt change. Dramatic changes in an ecosystem
are often described as the system being pushed towards threshold effects or
passing tipping points, to illustrate how ecosystems can fall into rather
sudden drastic irregular changes, often with cascading effects (Biggs et al.,
 Legitimacy and the role of law: resilience 153
2015a; Folke, 2006; Folke et al., 2002; Folke et al., 2011; Walker and Salt,
2012). Environmental problems or ecosystems do not act in a linear or fore-
seeable way in relation to the pressures from human activities or in relation to
the needs of human beings (Biggs et al., 2015a; Folke, 2006; Folke et al.,
2002; Folke et al., 2011; Walker and Salt, 2012). All this has to be taken into
account in governance.
Among the governance principles connected to social-ecological resilience,
adaptive capacity is a core feature of resilient social-ecological systems and in
resilience governance. Learning and knowledge are important components of
such an adaptive system. The aim of an adaptive approach is not only to adjust
to system change, but also to take adaptive measures to create transformative
action (Nelson et al., 2007). Other important features of resilience governance
are cross-scale action and polycentric governance structures. Acting on the
right temporal and spatial scales is necessary in response to ecosystem dynam-
ics, as is taking multiple different measures at different scales. To enable adap-
tive and cross-scale action, resilience governance emphasises the inclusion of
actors and actor groups that can both gather knowledge through monitoring
and act for transformation, based on this knowledge at all scales of the
system (Folke et al., 2005; Folke et al., 2009). Bridging organisations are
also emphasised within resilience governance. They are structures that can
coordinate and overarch gaps between different institutions and actors, or
networks of actors, in resilience governance structures. In this way, bridging
organisations make the overall institutional structures more effective (Duit
and Galaz, 2008; Galaz et al., 2008; Hahn et al., 2006). Such structures
could also bridge gaps between temporal and spatial scales.
All the features described are interconnected and interdependent and
themselves creating a complex adaptive structure. The descriptions and
chosen definitions may vary, but the features above reflect the extensive
literature in the field (Biggs et al., 2015b).

Resilience governance and law

Most legal studies on social-ecological resilience address how law can con-
tribute to or enable the resilience governance principles described above. There
are a number of significant pieces in the field of integrating legal research with
research on social-ecological resilience (e.g. Arnold and Gunderson, 2013;
Bohman, 2021; Cosens and Gunderson, 2018; Ebbesson, 2010; Garmestani
and Allen, 2014).The studies show that many of the governance principles are
reflected in law and legal structures. Some of the features described, such as
bridging organisations, are typical of the role of law in many institutional
structures. Law and legal structures act on many levels at once and are linked
together, not least by channels for formal participation for stakeholders, such as
NGOs, and the active participation by states in international law and interna-
tional law institutions (Bohman, 2018; Fitzmaurice and Redgwell, 2000). In
addition, the legal system is intertwined in a global governance system with
154 Brita Bohman
other actors that interact with states and contribute to both rule-making and its
implementation in different ways (Bohman, 2018; De Búrca et al., 2013;
Hey, 2009b).
Generally, law may also be adaptive, enabled inter alia through participation
and monitoring at different levels (e.g. Epiney, 2006). The general perspective
of law and resilience governance also emphasises the fact that environmental
law has developed along with the knowledge on resilience governance. New
legal structures often have been designed to match the need for both flexibility
and adaptivity (Arnold and Gunderson, 2013; Cosens et al., 2017).
The literature on resilience governance and law has mainly focused on
enabling the governance principles for ecological resilience through law, as
described here. While they to some extent may relate also to social resilience,
the next sections explore social resilience further as well as what the role of
law is for social resilience specifically.

Social resilience
The resilience governance principles presented above are developed as steer-
ing principles for governance matching the ecosystems. As this section will
show, social resilience is to some extent also based on such functions. The
social systems need to establish features to adjust, transform or cope with
ecosystem change in order to be resilient and in this way also provide for
ecological resilience. However, social resilience is to a large extent also
dependent on politics, economics and a fair and legitimate governance pro-
cess. Social resilience thus needs more than just mechanisms that address the
ecosystems.
Whether social resilience is even a useful concept is the first question to
address. The concept of social resilience may hamper the possibilities of
applying social or human sciences to the challenges that society faces. Resi-
lience was originally a concept within ecology, it was not developed for the
human sciences and there is a risk that some of the theoretical complexity is
lost when fitted into this concept (Adger, 2000). Instead, it is suggested that
social resilience should be used more as a metaphor for social stability than as
a concrete measurement (Carpenter et al., 2001). This approach also fits the
purpose of this study better. The concepts, definitions and established voca-
bulary for law will thus be used to achieve a nuanced discussion.
The next section reviews how social resilience has been reflected in the scien-
tific debate and forms the basis for the study of the role of law more specifically.

Social resilience in the literature

The literature on social resilience is extensive, the perspectives reflected here
do not claim to be exhaustive. The need for a more distinct theoretical ground
and definition of the concept of social resilience has already been addressed
(Cinner and Barnes, 2019; Davidson, 2010; Keck and Sakdapolrak, 2013).
 Legitimacy and the role of law: resilience 155
One of the first definitions of social resilience was ‘the ability of commu-
nities to withstand external shocks to their social infrastructure’ (Adger et al.,
2005, p. 361; see also Marshall and Marshall, 2007; Hutter, 2013). Similar
definitions have been proposed since then (Cinner and Barnes, 2019). This is a
broad definition, but it is formed against a background of more specific social
needs and established concepts, such as stable and legitimate institutions,
trust, resources and economic efficiency. etc. The definition forms a first
background of how to understand what social resilience is.
Generally, social resilience is being adaptive, having the capacity to tolerate,
absorb, cope with, and adjust to changing social or environmental conditions
(Brown, 2014). However, the main focus in all definitions lies in the role of
agency. Agency establishes the fact that social systems include human beings
with the capacity to act intentionally, both as individuals and as collectives in
organisations or communities (Keck and Sakdapolrak, 2013). Other specific
social resilience features to some extent overlap with the general resilience gov-
ernance features discussed above (Cinner and Barnes, 2019). Assets are under-
stood as the diversity of financial, technological, service-related, and other types
of assets that people generally need to be resilient to social-ecological change. In
some respects, such assets can also be related to effective implementation and the
operationalisation of international law. Flexibility as a social resilience feature is
described as the capacity of both individuals and institutions to deal with
change, by being able to switch between strategies. This description is closely
related to the understanding of flexibility also in general resilience governance.
In a given context, flexibility is moreover related to diversity and redundancy of
measures in general resilience governance, i.e. the aim to provide a buffer
through a range of measures that can prevent drastic system changes or shocks.
This is clearly a governance principle that is important, connecting both social
and ecological systems. Finally, social organisation is a feature that points to the
way society is organised at different levels and its capacity to share knowledge,
cooperate, and access resources beyond people’s immediate domain (ibid.),
Social organisation thus also shares perspectives with general resilience
governance principles, but adds the importance of access to resources. This
feature is related to learning and reflects people’s capacity to recognise
change, attribute this change to causal factors, and assess potential response
strategies. Learning, it is described, also includes experimental processes to
frame or reframe problems in society and help to build awareness of complex
linkages and feedback loops between people and ecosystems. This relates to
the general resilience perspective of adaptive capacity, to adapt to changes or
take transformative action. Knowledge builds on the ability to learn and take
transformative action and it is common to many of the papers on resilience.
This, too, is a factor discussed both in relation to social-ecological resilience
generally and in relation to social resilience specifically. It is one of those
principles or features that is important both to cope with change and to pro-
vide relevant governance measures to change the prerequisites for ecological
resilience (Nelson et al., 2007; Pahl-Wostl, 2009).
156 Brita Bohman
Agency, institutional structures and law
In applying the concept of resilience to social systems, agency is found to be a
key feature, since it is exclusively connected to human beings and social sys-
tems. In comparison to ecosystems, human agency is a great asset and a factor
that defines human systems. In contrast to ecosystems, human beings can act
consciously, both individually and as a collective, based on available knowledge
and calculated risks, to take transformative action. Society sets up structures
and institutions for action and to assess suitable action based on science and
knowledge. Connected to agency, the acknowledgement of the importance of
power, politics and participation in the context of ecological uncertainty and
surprise is also significant for social resilience (Keck and Sakdapolrak, 2013;
Schoon et al., 2015). This focus on social institutions and agency also pinpoints
aspects where law can have an important role in social resilience.
The question of agency and collective action is directly connected to the
role of law in the Anthropocene. One aspect of agency in relation to Earth
system change and the Anthropocene is that agency, like assets, often is
unequally distributed (Adger, 2000; Davidson, 2010). This is also why the
social system response to environmental change may vary between societies
or states. Assets and agency may be what decides how a society is able to
deliver all the other social system features. How a society withstands external
shocks to its social infrastructure and its capacity to tolerate, absorb, cope
with, or adjust to changing social or environmental conditions. Thus, the
distribution of assets and agency becomes a question of both law and ethics.
Although there may be many other factors that affect the distribution of
assets and power, or the ability to act, it is still also within the role of law to
distribute both assets and power. Moreover, it is the role of law to balance
different factors that influence what action a society should take under certain
circumstances. In relation to the Anthropocene, it is important to acknowl-
edge that the exercise of power and privilege in society has enabled extra-
ordinary concentration of control over the environment and the decisions on
distribution of resources, not least natural resources. This is also a key to how
societies have acted and created the far-reaching scale of environmental
changes that are now seen as the Anthropocene (Davidson, 2010).
Achieving ecological resilience is only one of many desired outcomes in
governance. Other societal values such as equality, human rights and democ-
racy must also be considered and be provided for in parallel, in order to
achieve actual social-ecological resilience. Building resilience requires stable
institutions, it requires that political, economic and equality issues are also
taken into account (Schoon et al., 2015). Assets and access to resources, not
least a fair distribution of resources, are crucial. Conflict resolution may also
be an important feature in making such a balance of values and required
outcomes possible (Schoon et al., 2015).
Other values that are emphasised as important are effectiveness, efficiency,
equity and legitimacy. Governance strategies aimed at providing for resilience
 Legitimacy and the role of law: resilience 157
may otherwise reinforce and aggravate societal weaknesses and inequal-
ities. The effectiveness of environmental governance within a jurisdiction is
a reflection of the strength, interests and power of the actors who define
the problem and the scale on which they are acting (Adger et al., 2005;
Schoon et al., 2015). Inequality, lack of resources, or lack of legitimacy
may further deplete the environment and speed up Earth system change.
Thus, lack of prerequisites in this regard may also create a risk of rein-
forcing a negative trend. Moreover, strategies or laws that only focus on
the ecosystem may create an overly technocratic approach where society’s
goals are not deliberated (Schoon et al., 2015). This can be seen in some
environmental law structures where participation by scientists receives a
prominent role in the legal development. While such structures may be
important when taking the dimensions of the ecosystem into account and
for the legal regime to be more adaptive, there is also a risk that other
values are lost (Andresen, 2014; Sabel and Zeitlin, 2012). This is also a
risk with systems relying only on scientifically set environmental quality
objectives, which is especially common in EU marine and water govern-
ance (Soininen et al., 2019).
The institutional and legal features identified must be given a more pro-
nounced place in the governance or institutional structure. The next section
starts with a summary of these different perspectives on social resilience and
goes on to elaborate on the features or principles connected to effectiveness,
equity and legitimacy in law and governance in the Anthropocene.

Law for social resilience in the Anthropocene

To illustrate and understand the complex connections between human
activities and the Earth system, the theories on social-ecological resilience
can be applied, as shown in this study. In the review of the concept of social
resilience, there are some key features beside those relating to ecosystems.
They all relate to values or assets necessary at different levels for a society to
tolerate, absorb, cope with, and adjust to changing social or environmental
conditions, as well as on human capacity of agency.
Focusing specifically on the role of law, the social resilience features
identified can be summarised as values that relate to, or can be made avail-
able through stable, democratic and legitimate institutions. That may refer
not only to legal institutions, but also legal structures. Especially values
involving power relations at different levels, political and economic equality,
equal access to or distribution of resources, are within the role of law at all
scales, as well as issues of legitimacy and effectiveness. Of course, to really
identify the role of law and its boundaries, assessments have to be made in
every unique situation. However, there are some general values that can be
addressed on a more general level in relation to legitimacy, Earth system
change and the Anthropocene.
158 Brita Bohman
Legal fairness and equity
As discussed, social resilience values or key features for law relate, inter alia,
to the distribution of power, political and economic equality, as well as
equal access to, or distribution of, resources at all levels. To a large extent
these values can be included in the concepts of legal fairness and equity,
which are also values connected to legitimacy. A basis for the rule of law is
that decisions are taken, based on certain transparent criteria, by those
specially appointed to take decisions, and according to a certain procedure.
Moreover, such systems entail a belief that resources or benefits are dis-
tributed according to objective and fair principles. In a legal system, fairness
will be judged by how much rules satisfy the expectations of the system, and
the right process for the distribution of burdens or benefits and not least the
extent to which the rules are in accordance with people’s beliefs in this
regard (Franck, 1995).
In international law, equity is a principle that is basically a synonym for
fairness or justice. Equity, and the concept of fairness, have both procedural
and substantive dimensions. The procedural aspect is concerned with the form
or process of making a decision also connected to legitimacy, the substantive
dimension aims at material law and distributive justice. There may sometimes
be a tension between the two perspectives, because the procedural dimensions
are enhanced by stability and order, while distributive justice strives for
change to achieve a fair outcome (Franck, 1995; Shelton, 2007). This, in some
respects, is similar to the kind of tension that may appear between adaptive
governance approaches and the rule of law. More importantly, it sheds light
on the challenges for procedural legitimacy in the Anthropocene.
While the point of equity and fairness may seem obvious, these are none-
theless very important principles or values to address in the given context.
First, of course, because they confirm the importance of the specific social
resilience values reflected in law, that resources should be distributed equally.
Second, they represent the essence of a fair and legitimate legal systems
(Bodansky, 2012; Franck, 1995; Shelton, 2007). Fair and legitimate legal sys-
tems form good prerequisites for social resilience, as the legal system will be
more stable in such circumstances. Legitimacy, however, is important for
many reasons, as presented in the introduction of this chapter. One reason is
that it strengthens or encourages compliance. Compliance is an important
aspect of effectiveness in law and governance. Third, the given perspectives on
equity and fairness are important because they cannot be taken for granted,
especially in relation to the Anthropocene. Many environmental governance
systems already exist today, where some of the values pointed out are difficult
to safeguard, like power, equality and access to resources. With the risk and
uncertainty that the Anthropocene entails, many of these values will be even
harder to guarantee. Thus, lifting these values and emphasising that they must
be addressed and safeguarded, is of the utmost importance in ESL and in the
Anthropocene.
 Legitimacy and the role of law: resilience 159
One of the main messages of the Anthropocene is that human impact on the
environment leads to completely novel and unpredictable changes that are very
difficult to anticipate, and with potentially dramatic impacts on the ecosystems
(Biggs et al., 2015a). When the ecosystem response becomes more uncertain,
then access to ecosystem services and natural resources will be more uncertain.
Values like equality or equal access to resources are increasingly threatened. It
may also be relevant in the given context that the concept of equity also may
be applied between generations, which puts focus on another dimension of
obligations in the context of Earth system change, sustainability or the wider
idea of social-ecological resilience (Shelton, 2007).
Equity is also connected to human rights. The importance of a universal
human rights perspective is even more important in light of the Anthro-
pocene. As explained above, the accelerating Earth system change puts most
social values to the test. It also compromises the realisation of the rights
protected by the Universal Declaration of Human Rights (UDHR). The
rights under the UDHR incorporate all levels of law and include individuals,
groups, organisations and even the international legal order. The rights and
equity discourse should in this way encompass all levels of decision making,
all human rights must be realised from the most local of levels, to the global
level, since these levels are connected. The Anthropocene also highlights the
fact that an activity in one particular location or scale may impact the
enjoyment of rights in other places, because of the social and ecological
interconnectedness (Hey, 2018).
Basically, in the Anthropocene, the need for states and the international
community to fairly allocate and regulate scarce resources, the costs asso-
ciated with protecting them, and any degradation that occurs are more
important than ever. Environmental benefits and burdens must both be
shared equitably. In this regard, equity is an application of the principle of
distributive justice (Shelton, 2007). The interpretation of the UDHR may
need to be transformed in light of the Anthropocene. However, in relation to
the need for equity and allocation of resources, the rights and the scales of
governance that the UDHR includes are central for incorporating other
dimensions or factors that have been put in focus within the discussion on
social resilience. This includes economic activity and the distribution of power
in the international legal order (Hey, 2016; 2018).
Since equity and fairness are such important values within legal systems,
there are also many international principles established for how to act to dis-
tribute burdens and benefits equitably, beside the human rights regime.
Strictly legal formal equality demands rules of identical treatment, to ensure
full respect for the sovereignty of each state regardless of size or wealth.
Where such equal treatment is perceived as unjust, equitable norms have been
adopted to treat states unequally. For example, equitable utilisation is a
recognised norm for transboundary waters. This is a principle that ensures the
possibility of adjusting the otherwise required equal allocation of a shared
resources between riparian states to ensure a fair distribution (Hey, 2009a;
160 Brita Bohman
Shelton, 2007). Another such principle is the principle of common but differ-
entiated responsibility, which has assumed a prominent position in international
environmental law through its incorporation in the Framework Convention on
Climate Change (see, for example, Stone, 2004). A similar principle is also found
in the 1992 Rio Declaration on Environment and Development (United Nations
General Assembly, 1992). In a way, the principle of common concern is an
additional principle with the aim to distribute or allocate rights and influence
(Brunnée, 2007).
In summary, this section illustrates why the identified values and principles
for social resilience are crucial in ESL and the Anthropocene. International
law, or more specifically ESL, has an important role in allocating both shared
resources and environmental burdens through the equitable principle of dis-
tributive justice. On an international or global level, an equitable approach
may call for accommodating inequalities in assets, such as those of economic
development or lack of capacity to tackle a given problem, by imposing dif-
ferential obligations or providing preferential treatment, seeking to foster true
equality, largely through favouring the least developed or most affected states
(Shelton, 2007). In governance of social-ecological resilience and the coop-
eration between states or individuals within a state, the power relations must
not hinder the fair distribution of resources. In the concluding section, the
recognised principles, features and values identified for social resilience will be
compared with and added to law and governance for resilience generally.

Conclusion
It is of great importance to view and analyse social resilience values in a
general legal context of governance and the Anthropocene.. The identified
legal principles of equity, fairness and human rights must form the foundation
for ESL. However, law and governance in the Anthropocene must of course
also relate to, and integrate, governance principles for ecosystems.
The resilience governance principles are central in achieving ecological
resilience and must be in the basis of any governance system for the Earth
system. There are many legal functions and mechanisms that enable or con-
tribute to resilience governance in a general sense and many of them have
connections also to the social resilience features. They will form the substance
of ESL in the Anthropocene. It furthermore seems that incorporating more
pronounced legal prerequisites for social resilience with the law for general
resilience governance is important for the effectiveness of ESL.
The laws and values for social resilience connect to the resilience principles
promoting adaptivity, flexibility and knowledge, similar to resilience features
for multi-level or polycentric systems and the connections these create
between the different governance levels. Moreover, and most importantly,
social resilience features are central in relation to participation and the dis-
tribution of rights and power, access to resources and other assets that are
enabled through participation. The law for social resilience forms a good
 Legitimacy and the role of law: resilience 161
ground for legitimacy and a legitimate system will be more effective also in
terms of compliance and problem-solving.
However, these findings are not a reason to review the law only in regard to
social resilience as part of the framework for general resilience governance. The
social resilience features must be lifted and addressed as values of their own, and
as significant components of ESL. Governance in the Anthropocene must rest on
the identified resilience governance principles for social-ecological resilience but
with a more pronounced position for social resilience values. ESL in the Anthro-
pocene must focus on legal mechanisms for distribution of power and resources,
as well as for general legitimacy, equality and democracy or accountability.
To conclude, a legal framework for the Anthropocene should include legal
mechanisms that respond to adaptivity and flexibility, multi-level and poly-
centric governance, stakeholder participation, and monitoring ecosystem
variables and feedbacks. Moreover, this study shows that key features for
social resilience must be included. The key features for social resilience are
related to the concepts of agency and assets and are already a fundamental part
of law and legal institutions. However, in a structure for ESL in the Anthro-
pocene, they must be addressed more directly and articulately. Moreover,
legal fairness and equity must be specifically addressed and safeguarded.
The general features that are compatible with legal fairness and equity, and
that to some extent, are established through such values, are stable, demo-
cratic and legitimate institutions; political and economic equality; equal
access to or distribution of resources.

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10 Climate (im)mobilities in migration
governance and law
Integrating an Earth systems perspective
Andrea C. Simonelli

Introduction
Interest in climate-induced migration and displacement has continued to
grow. With the lack of significant progress towards major cuts in carbon
emissions along with low levels of political ambition, the future seems poised
to inherit more of the conditions that will inevitably deteriorate many land-
scapes to the point that human habitation, in its current form, is not possible.
Scholars have taken an interest in not only the process of movement, but also
its outcomes. While climate migration will take many forms, the implications
of cross-border migration and displacement have been scrutinised due to the
lack of applicable governance structures. However, the literature evaluating
the legal, ethical, and rights-based governance gaps is continually con-
ceptualised within the cooperative UN-based system which has failed to
either solve the problem of climate change or expand its reach to assist those
being displaced by it (Simonelli, 2015). In short, answers are being sought
through the same systems which have previously failed to solve them.
Governing climate-induced migration and displacement has been set
against the state-centric power of international relations and law, which is
based on precedent and cooperation from a specific historical period. These
interactional dealings are grounded in an understanding of the post-Second
World War era. As such, the UN system has spent the last 70 plus years
struggling to adjust to the Cold War, organised terrorism, the post-9/11
world, and climate change with visible growing pains. Each new challenge
has pushed established governance and law to use a backward-looking
frame to its limit. As the impacts of climate change become more acute, it
has become clear that humans not only govern their response to the pro-
blem, but their actions can either propel or reverse its intensity. Human
actions affect all global systems, which means that simply relying on solu-
tions that only consider humans is no longer viable. Earth system govern-
ance (ESG) provides an alternative framework to integrate human/social
aspects of systems change and using the Anthropocene as the relevant
situational condition, this provides a vastly broader understanding of both
the systems of concern as well as potential solutions.

DOI: 10.4324/9781003198437-13
166 Andrea C. Simonelli
A planetary focus is helpful in the context of migration as humans are not
the only species being displaced. As climate change pushes ecosystems to
their breaking point, the flora and fauna people build their societies on will
also redistribute either naturally or through management. People and the
environment are usually considered separately, but Earth systems governance
and law’s analysis of sovereignty and cultural loss demonstrate that gaps exist
in the current structures.

Climate migration and displacement governance

The development of climate migration and displacement governance has been
hampered by concerns of political will, exhausted funds, and lack of state
liability. The following section provides a highly condensed overview of the
relevant international institutional advances to date.

UNHCR
The United Nations High Commissioner for Refugees (UNHCR) is the
intergovernmental organisation (IGO) most implicated simply through the
use of the term climate refugee. However, the current legal regime on refugees
provides only marginal protection, with no specific mandate, to climate refu-
gees. The main responsibility is placed with their home countries, which con-
tradicts the global responsibility for the victims of climate change (Biermann
and Boas, 2010). The 1951 Convention Related to the Status of Refugees
(hereafter the Refugee Convention) and its updated 1967 Protocol outline a
specific definition of refugee which is legally recognised; it is also a confirmed
obligation that guarantees a certain set of rights and privileges (Berringer,
2013). It is logical to insist on asking a current IGO with legal weight and
protectionary abilities to assist with climate-impacted populations. However,
the UNHCR’s mandate is not flexible as it stands, and its mandate continues
to be fiercely protected by its bureaucracy and leadership. The definition of
refugee is clearly outlined in the Refugee Convention as persons having a
‘well-founded fear of persecution for reasons of race, religion, nationality,
political opinion or membership in a particular social group’ (UN General
Assembly, 1951, p. 3). It does not mention environmental degradation. Using
the term refugee (in this context) is disputed and several authors (including
this one) and intergovernmental bodies suggest terms such as migrants or
displaced persons, as there is no consensus definition of climate refugees
(Biermann and Boas, 2010). Moreover, as a legal remedy, one has to cross an
international border as a criterion for consideration for refugee status, but this
may not be how those displaced by climate impacts present themselves. As
anticipatory refugees, some may recognise that their local situation will
eventually deteriorate and have the ability to relocate before they are forced to
do so (Kunz, 1973), but their ability to access the status will be questionable.
Others will not cross an international border and be considered internally
 Climate (im)mobilities: migration governance 167
displaced persons (IDPs). The UNHCR has offered its guidance on IDP
issues through its consultation on the Guiding Principles on Internal Dis-
placement. These are based on internationally recognised human rights and
humanitarian rights but are not law (Simonelli, 2015). A 2004 introductory
statement specifies that ‘National authorities have the primary duty and
responsibility to provide protection and humanitarian assistance to internally
displaced within their jurisdiction’ (United Nations Office for the Coordina-
tion of Humanitarian Affairs, 2004, p. 2). The UNHCR leadership reinforced
this in 2011 when it offered to assist with developing an additional guiding
framework for climate displacement that is consistent with the Guiding Prin-
ciples while rejecting labels such as climate refugee or environmental refugee
(Simonelli, 2015). Individual countries may expand some aspects of the scope
of the Refugee Convention as it fails to recognise the risk of torture, capital
punishment, state of armed conflict, environment disasters, lack of natural
resources, family ties, illness and gender-related persecutions (Worster, 2012).
Other aspects of international human rights law have been applied to address
the protection needs of a range of non-refugees who may fall outside of the
Refugee Convention but may be unable to return to their country of origin. A
range of jurisprudence has emerged, drawing especially on the European
Convention on Human Rights (ECHR), the American Convention on
Human Rights (ACHR), and the Convention Against Torture (CAT) (Betts,
2010). While state expansion and the utilisation of additional legal instru-
ments may seem to leave space for legal applications, testing the Convention
has come up short. Ioane Teitiota, a migrant from Kiribati, filed a legal claim
with the High Court of New Zealand, to ‘migrate with dignity’ as a formal
climate refugee (Weiss, 2015), but his claim (even after appeal) was denied.

IOM
The International Organization for Migration (IOM) has also come under
pressure to expand its work to assist with climate-induced migration and dis-
placement. The organisation facilitates migration through providing advice
and services to both governments and migrants. Unlike the refugee regime,
the migration regime is not supported by a legally binding treaty (Berringer,
2013). The IOM was not established to protect migrants, but to help facilitate
their movement; as a partner to the UNHCR, its role was parallel, but dif-
ferent (Simonelli, 2015). Its primary stakeholders facilitate governance
through international agreements that provide services to both governments
and migrants (Berringer, 2013). Its role is to respond to the needs of its
member states; if a state needs advice as to how to deal with increased flows
of migrants, it reaches out to IOM to provide advice and information to its
government. Official IOM publications emphasise that climate change is
increasing the vulnerabilities of communities around the world, leading to
increased migratory flows. However, its main objective is to reduce unma-
naged migration (Simonelli, 2015), which is only helpful after displacement
168 Andrea C. Simonelli
occurs rather than being proactive. IOM is a logistical facilitator for its
member states, guided by their demands, responsive to their needs and funds
(ibid.); this puts at it at a disadvantage in assisting small members. Unable to
fund response measures for their needs, smaller states cannot get the attention
and projects that IOM can provide for its larger members. IOM is also not
responsible for migrants after they reach their final destination (Berringer,
2013). This means that local conditions and long-term assistance are outwith
theIOM’s mandate.

UNFCCC
Migration and displacement have long been concerns of the small island
states at the United Nations Framework Convention on Climate Change
(UNFCCC) meetings (Simonelli, 2018); however, the topic of displacement
did not appear in the formal negotiation text until 2010. Paragraph 14f of the
Cancun Adaptation Framework integrated ‘measures to enhance under-
standing, coordination and cooperation with regard to climate change
induced displacement, migration and planned relocation, where appropriate,
at national, regional and international levels,’ into an international instrument
(United Nations Framework Convention on Climate Change, 2010, p. 5).
While the subsection is not legally binding, it asks individual nations to
acknowledge the existence of climate change migration and displacement at
several levels of governance (Simonelli, 2018). The Warsaw International
Mechanism (WIM) was established in 2013 to create the institutional
mechanism mandated the year before by the Doha Gateway; its task is to
address loss and damage associated with both slow onset and extreme climate
events (United Nations Framework Convention on Climate Change, 2013).
The draft text coming into the Paris talks provided an option for establishing
a ‘climate change displacement coordination facility’ that could provide
emergency relief, assist in organised migration/planned relocation, and
undertake compensation (United Nations Framework Convention on Climate
Change, 2015, p. 4). However, the parties in their final decision adopting the
Paris Agreement, opted for far more tepid language, calling for a task force to
make recommendations on how to address climate-related population dis-
placement (Burns, 2016). The Draft Decision Report for the WIM for the
2018 climate talks shares this actionless language, encouraging the Executive
Committee to continue its work on mobility under its five-year work plan and
then again in the annex when it invites parties to ‘consider formulating laws,
policies and strategies, as appropriate, that reflect the importance of inte-
grated approaches to avert, minimise and address displacement related to the
adverse impacts of climate change’ and ‘to facilitate orderly, safe, regular and
responsible migration and mobility of people, as appropriate and in accor-
dance with national laws and policies, in the context of climate change’
(United Nations Framework Convention on Climate Change, 2018, pp. 4–5).
This language asks that individual states use their own laws and rely on state
 Climate (im)mobilities: migration governance 169
action to remedy climate migration rather than the governance mechanism.
Most recently, the 2019 talks related to the WIM produced no further outcome
and are to commence again in 2020 (United Nations Framework Convention
on Climate Change, 2019).
It is understandable why many look to the UNHCR for guidance, it has
assisted millions of people fleeing the most desperate situations seeking the
recognition of their basic human rights. Additionally, the bureaucratic label of
refugee is universally recognised, if not for its correct legal meaning, but at
least for the implication of need and vulnerability that comes with the label
(Simonelli, 2015). The UNHCR has developed a strong bureaucracy and it
protects the integrity of its mandate against encroachment. Refugees are in
need of protection against persecution most often enforced with violence –
this is an immediate need to deal with a threat on a person’s life. As a facil-
itator of movement, the IOM organises logistics, but it is a reactionary actor
because it responds to the requests of its members. Unlike the UNHCR, IOM
membership is not the entire UN, but only 173 states. It cannot assist with
climate migration and displacement in all locations and across all places
where it may originate if its reach is not global. The UNFCCC’s WIM was
created with governance of climate migration and displacement as a specific
aim because other intergovernmental organisations did not expand their
mandates or work. This does not mean it has been effective. In the years since
its inception, the WIM has not developed to the point where it has any power
or money of its own and, as the section above states, its executive committee
has suggested that individual states act.
Each international governmental organisation has struggled to be responsive
on this issue. While international governance structures have greater capabilities
than individual states, they are not always conducive to effective outcomes
(ibid.). States navigate these spaces with their self-interest in mind and com-
promise may not provide value. There is cooperation within the global hier-
archy where some states exercise influence over other states, and organisations
exercise influence over their members (Lake, 2010). Those who participate in
intergovernmental organisations are exposed to norms which generate a type of
social capital and create a set of network links among nations (Dorussen and
Ward, 2008). International cooperation between those who are used to working
together should be easier because these states develop a sense of reciprocity.
However, the social capital in the UN is not a clique of the few, but a meeting
of the all. Larger states with money and military capacity tend to steer the
agendas to their liking; their power can be coercion, persuasion or aid. None-
theless, the UN system and its partner IOM have created space for continual
network iterations over the course of almost 70 years and those same actors
have come together on this issue. Over this time, each organisation has refused
to take on responsibility for climate displacement until the climate change
regime which eventually suggested that the state level consider solutions. To
date, there are no concrete plans, policies or solutions to facilitate or assist
those who may be displaced by climate change processes.
170 Andrea C. Simonelli
Governing in the Anthropocene
With current intergovernmental structures failing to initiate measures to deal
with this growing problem, there is reason to ask, what is failing, is it the
structures or the conception of the world that they were built on? Climate
change is fairly new (in the course of human history) with UN-based govern-
ance structures being only slightly older. However, the UN system was built on
the heels of the Second World War when it became apparent that cooperation
needed to play a leading role to state sovereignty. These structures were tested
through the Cold War and the bi-polar power struggle between the US and the
USSR. With the US winning out, so did its preferences and agenda – world
politics may change, but the stability of atmospheric gases, terrestrial systems,
and ocean temperatures was never in question.
As a species, humans have been able impact the entirety of the systems they
depend on to survive in an adverse manner. Paul Cutzen’s (2002) essay intro-
ducing the Anthropocene has made humans think about industrial develop-
ment and its externalities. Some have argued when in time the pivotal point
has occurred. A review by Lewis and Maslin (2015) offers several approaches
which define the Anthropocene, focusing on the impact of fire, preindustrial
farming, socio-metabolism, and industrial technologies. They make the case
that there are data markers which indicate that either 1610 or 1964 would
mark such a beginning; one indicating the impact Europe had on the New
World through unequal power, fossil fuels, and global trade and the other
being the entry into the nuclear age (ibid.). While distinct from Cutzen’s reli-
ance on the CO2 trapped in polar ice coinciding with the 1784 steam engine
invention (Cutzen, 2002), each suggests humans’ industrial prowess and
global reach through western ideas of economic advancement and military
expansion. Zalasiewicz et al. (2008) argue that there is strong evidence to
suggest the Holocene is over, and argue the Anthropocene is still to peak as
western development and the growth of India and China are far from over;
however, they did not disagree that the 1960s is a practical starting point even
if the mid-1800s may have more utility. Timelines, while imprecise, bear some
importance. If the natural record can show when human activity began
creating global atmospheric changes, it becomes apparent that the kind of
activities the West exported to the rest of globe were never sustainable. This
also has implications for historic responsibility; if those nations began pol-
luting first, they may be liable for paying for more damages and assisting
more displaced people/s in the long term.
However, the Anthropocene as a concept is not without its own problems.
It is paradoxical and disturbing that the growing acknowledgement of the
impact of societal forces on the biosphere should be couched in terms of a
narrative that is completely dominated by natural science (Malm and Horn-
borg, 2014), as if the natural sciences understand the complexities of the
humanities. There is a reason that governing science and technology tends to
come after consequences that may have been unintended by their creators, but
 Climate (im)mobilities: migration governance 171
not unforeseen by those in other fields. Is it that humanity is inherently a pro-
blem for Earth, or that one segment of the privileged class of capitalists have
harnessed the potential of its limited resources for themselves by using the
labour of many others? Using the Anthropocene lens must not mask the
diversity of local and regional contexts and situations, nor the diversity and
disparities in the conditions, contexts, and distribution of wealth, consumption
and environmental impacts across human societies (Biermann et al., 2016).
Proponents of the Anthropocene argue that what really matters is that climatic
disruption originates from within the human species, even if not all of it is to
blame, and so a species-based term for the new geological epoch is warranted
(Malm and Hornborg, 2014). While is true that the disruption does come from
within the human species, it is not evenly distributed, and, more difficult for
governance, is that it comes from the most powerful. It is petro-economic
might that is shaping the planet to the detriment of all of its inhabitants. As
such, this is to realise that climate change is not just anthropogenic but socio-
genic; it has arisen as a result of temporally fluid social relations as they
materialise through the rest of nature (ibid.). Because social relations are fluid,
they can change; the nature of humans is not to inherently destroy their world.
Most humans are coerced into the systems they participate in through their
socio-economic place in the world and even then, merely 20 per cent of the
world population consumes about 77 per cent of all goods and services on the
planet Earth (Biermann et al., 2016). Not all people and communities are
equally affected by the challenges of the Anthropocene, nor are all equally able
to cope (ibid.), thus it is important to keep in mind that even defining a new
epoch should not be universalising of the human experience.
If the Anthropocene is recognised as a change in the impact/magnitude of
human systems on the natural systems of Earth (recognising that the actions
of the few drive change for the whole of humanity and the planet), the
implications for governance are much larger than current systems have ever
conceptualised. It is imperative to look to the future as well as the past, to
appreciate that wide-ranging biodiversity could emerge from different poli-
tical and ecological scenarios and to plan accordingly; targets and action
plans are necessary, but they should give scope for non-human dynamics,
multispecies deliberation and experimentation and forms of adaptive man-
agement (Lorimer, 2011). Governance solutions are also limited in as much as
some climate effects cannot be reversed on human time scales (Biermann et
al., 2016). This is exactly the case with climate displacement. Political actors
make decisions based on what will affect their political careers. Thus, acting
on climate change (or climate-induced displacement) assumes that the solu-
tion sold to constituents should also make the politician look good (Simo-
nelli, 2015). This is an intergenerational dependency, which is a novel political
challenge (Biermann, 2014). The Anthropocene comes with persistent uncer-
tainty about the causes of Earth system transformation, its impacts, the links
between various causes and response options, and the broader effects of poli-
cies as well as the interdependence of all human societies (ibid.). In short,
172 Andrea C. Simonelli
people are not equipped with the mental and emotional repertoire to deal
with such a vast scale of events (Latour, 2014) due to its nonlinear trajectory,
path-dependent power structures, and impacts beyond the human.

Integrating Earth system law and governance

Governance
Of the governance systems outlined in the previous section, the UNFCCC is
the only one specifically organised to minimise the impacts of climate
change and yet, even its outcomes to date have not slowed global warming
and are not legally binding. The WIM is still a dormant mechanism,
underdeveloped and nested within several other bodies without its own
independence or funds. While once seen as the next step forward for the
institutionalisation of a migration/displacement governance mechanism, it
has since stalled. The UNFCCC works like other UN bodies, on consensus,
which means agreement is based on incremental change in order to find
agreement. However, incremental change is no longer sufficient to bring
about societal change at the level and with the speed needed to mitigate and
adapt to Earth system transformation (Biermann et al., 2012). UN institu-
tions generate norms and, while successful in some issue areas, are like other
establishments of the Holocene, complicit in the generation of the unstable
Earth system that characterises the Anthropocene (Dryzek, 2014). Extra-
activism, with attendant ecological and humanly embodied debts, is the
basis of neoliberal sustainable development models favoured by transna-
tional business (Goodman and Salleh, 2013). Creating a market for carbon
pollution means that it can be managed spontaneously by the hidden hand
of the market (Salleh, 2015); without commodification there is no incentive
to cap or trade it, the future liveability of the planet has no value. Environ-
mental governance has bought into the same market principles that have
built the problem, or, if environmental governance structures have not, they
certainly feel pressured to use them. The conventional tools of environ-
mental valuation, such as cost-benefit analysis and contingent valuation, are
marred by reductionism (ibid.); environmental goals must be mainstreamed
into global trade, investment and finance regimes so that the activities of
global economic institutions do not undermine environmental treaties
because of poor policy coherence (Biermann et al., 2012). The WIM has
additionally struggled to deal with non-economic loss and damage (NELD)
because attachment to home and culturally specific spaces cannot be eval-
uated so straightforwardly. Where the need to migrate is external, several
non-economic rights have the potential to come under threat, such as the
right to nationality, right not be expelled or deprived of entrance to one’s
territory of nationality, and the right to self-determination (Simonelli, 2015).
What is the proper amount of compensation to make up for the loss of one’s
homeland?
 Climate (im)mobilities: migration governance 173
The remedy for these issues is a different conception of governance. ESG is
the interrelated and increasingly integrated system of formal and informal
rules, rule-making systems, and actor networks at all levels of human society
(from local to global) that are set up to steer societies towards preventing,
mitigating, and adapting to global and local environmental change and, in
particular, Earth system transformation, within the normative context of
sustainable development (Biermann et al., 2010). Expecting the WIM to come
up with a text that is agreeable to all UN nations, given the power that fossil
fuel interests exert in many of them, should seem like an impossible task,
especially since the UNFCCC itself cannot garner pledges itself to keep the
planetary temperature rise under 2° Centigrade (Climate Action Tracker, n.
d.). If all societies are unwilling to do the work to prevent global warming,
then they certainly will not be willing to fix subsets of its complications. Earth
system governance is not confined to states and governments as sole actors; it
is marked by participation of myriad public and private non-state actors at all
levels of decision making, ranging from networks of experts, envir-
onmentalists and multinational corporations to agencies set up by govern-
ments (Biermann, 2007). It can be formally defined as the sum of the formal
and informal rule systems and actor networks at all levels of human society
that are set up in order to influence the co-evolution of human and natural
systems in a way that secures the sustainable development of human society –
that is, a development that meets the needs of present generations without
compromising the ability of future generations to meet their own needs (ibid.).
While tenably broad, this concept demonstrates a need for human systems
at all levels to be engaged in sustainability. To be sustainable in a future full
of doubt on a course of heat and change, political and legal systems need to
internalise the main hurdle ahead: that sustainable needs to be couched with
reflexivity; the ability of a structure, process or set of ideas to change itself in
response to reflection on its performance (Dryzek, 2014). All integrative sys-
tems have to share the same purpose, which takes the development of norms
and principles and regimes. The environmental regime that developed into the
UNFCCC already has some of this. It was institutionalised around a
common issue that was not controversial in and of itself, but in terms of how
it could be fixed (Simonelli, 2015). Environmentalists, governments, business,
and civil society meet year after to year to discuss and govern the main global
environmental challenges, but then they go back to countries which treat the
environment as if it is separate from other issues. The environment is invari-
ably siloed from the economy, health care, and the like and, thus, these sys-
tems cannot be coordinated. Eco-systemic reflexivity proves to be the primary
requirement for institutions in the Anthropocene (Dryzek, 2014); for other
sectors to be effective towards a planetary goal, they need to be reconsidered
with climate outcomes in mind. In doing so, it will create a coherent frame-
work that will support transnational negotiation towards impactful climate
mitigation and adaptation. ESG describes this as an architecture, in other
words, as the meta level of governance (Biermann et al., 2010). Ecological
174 Andrea C. Simonelli
interdependence binds all nations, which creates a new dependence of all
nations on the community of all others (Biermann, 2007). Because of this,
planetary boundaries and how other government sectors impact ecological
outcomes must be integrated into all sectors. This shift in thought and action
across a myriad of systems will bring to the global negotiating table a more
integrated system, connected through outcome consideration throughout the
whole. However, this must consider all systems, not just human. The main
problem colonising western systems have with their own governance is that they
have chosen their own primacy over all others. Non-western communities
express their pride in the conservation of habitat through diverse life-affirming
value forms under customary law (Salleh, 2015); there one finds examples of
longstanding social-ecological systems that are resilient, existing in humanity’s
past (for example, agro-ecosystems) but not in industrial society (Dryzek,
2014). But in the Anthropocene, consistent with the idea that the Earth system
itself becomes recognised as a key player, the crucial entities are social-ecolo-
gical systems, rather than social systems per se. The human components of
social-ecological systems can then respond not just to human voices, but also to
the non-human components of social-ecological systems that have no voice but
to which humanity can try to listen better (Dryzek, 2014).
Effective international cooperation must be a basis for Earth system gov-
ernance in the Anthropocene. The UN system and international negotiations
do not stand in an antagonistic relationship with local action and non-state
movements (Biermann, 2014); they need to be reconceived in a manner that
further connects them. In a world of over 190 independent nation states, there
is no way around strong and effective international cooperation (ibid.); how-
ever, the rules may have to re-evaluated. This is a matter of social and envir-
onmental justice for smaller nations as well as their ability to effectively
participate in governance processes.
The UNFCCC already provides space for both large and small countries to
have a voice in these segmented discussions, but the challenge for smaller
nations is full participation due to rules favouring larger ones. Limits apply to
the number of contact group meetings that may be held simultaneously, but
this rule does not extend to informal meetings; there are frequently more than
two formal or informal meetings running simultaneously (Dryzek and Ste-
venson, 2011). Small nations are often pulled in many directions at once, not
in attendance, or have to hire outside consultants to appear on their behalf.
The secretariat covers the cost for two delegates from each least developed
country to attend UNFCCC sessions (ibid.), but with so many topics to cover
in two weeks, smaller nations are often overrun. It may be more effective to
conduct negotiations within existing institutions and split up problems into
smaller negotiation packages (Biermann et al., 2012). This would maintain
expertise in relevant areas and minimise the need to start from scratch when
smaller nations come together fully. This could mean that the WIM’s Execu-
tive Committee could have more independence to bring a fully developed
package to the UNFCCC after input from experts from the IOM and the
 Climate (im)mobilities: migration governance 175
UNHCR. Then, each package can be voted on separately rather than in one
massive treaty. UNFCCC sessions often go to the last minute with negotia-
tions seeking to consolidate many sections of text into one document for
consensus, which often disadvantages smaller delegations without sufficiently
caffeinated personnel to either keep negotiating or read new copy while their
larger counterparts have fresh staff on deck.
Full body consensus has stalled and, in many cases, watered down the
UNFCCC agreements which could have furthered the progress towards a
sustainable planet. It could also be more effective (in the spirit of reflexivity)
to allow ratification with a majority of countries rather than allowing infor-
mal veto power to those with entrenched fossil fuel interests. Political systems
that rely on majority-based rule arrive at more far-reaching decisions more
quickly (Hovi and Sprintz, 2006). This would leave room for in-country acti-
vists and leadership to speak up, adding pressure to disingenuous actors. This
outsider status will also have reputational costs in other issue areas beyond
the environmental. IGOs can equalise power among nations through rules,
which are necessary if smaller nations are to be able to have their say against
those which are more powerful (Simonelli, 2015), and especially those causing
destruction of their natural resources through extraction, polluting their air,
and displacing their people. It is imperative that present and future treaties
rely more on systems of qualified majority voting in specified areas. Earth
system transformation is too urgent to be left to the veto power of single
countries (Biermann et al., 2012). However, this must be driven on trust:
allowing the Executive Committee of the WIM to provide recommendations
to the whole and then not working with, but rather undermining their ideas is
not effective. The work of the WIM is seeking justice for those who will lose
the most and who have damaged the planet the least; some are small island
states which will face eventual inundation by the sea and Indigenous com-
munities whose permafrost has now thawed. Their needs include a recon-
stitution of their lives and livelihoods which should not always been
secondary to the economies of larger polluters.
The other locus of governance that is left out is consideration for ecosystem
services that support non-humans and their ability to migrate. Planetary sys-
tems include flora and fauna, which provide food, and other provisions for
society and are more often than not, a secondary concern – if at all. Assess-
ments of NELD should consider these in tandem to human migration con-
cerns. Many plants can only thrive in certain areas and have medicinal or
culturally important roles that will be lost through migration and displace-
ment. Furthermore, as climate change is an entire planetary shift, many
plants and animals will naturally migrate as the seasons, and in turn their
food chains, become unstable. Migration in this frame is not simply the need
to accommodate the old nation state-centric view of bordered cultures, but
how governance at all levels will need to adjust to changing agricultural
zones, wetlands, and habitats. With changing landscapes comes changing
ownership and this will challenge the locales people have worked for their
176 Andrea C. Simonelli
food, logging, etc. Animal and fish migrations will put vast resources into new
jurisdictions, potentially outside the normal boundaries of those who rely on
them. ESG architectures need to be broad enough to consider how humans
not only impact their environment on a grand scale, but how communities
rely on local assets. There is, therefore, an urgent need for meta-analyses of
anticipation processes, including through a critical governance lens, by asking
first-order questions of who governs, for whom and why, and examining how
the content of anticipation processes is created in ways that shape and limit
what futures can be imagined (Burch et al., 2019). Climate projections pro-
vide a context for anticipatory governance, it is important to consider the
challenges ahead as they relate to the interconnectedness of habitat to
migration for both societies and non-human actors.

Law
Enforceable and equal application of law, no matter where the claimant has
filed, is an important reason that the UNHCR has been consistently impli-
cated as an agency to protect (or at least guide) the process forward on cli-
mate migration and displacement. Since the ratification of the Convention,
asylum seekers are able to count on a process and certain privileges if they are
successful. IGOs govern through both hard and soft law; hard being enforce-
able law as ratified by individual states and soft being not binding but often
customary or enforced by norms and reputation at the international level.
Most migration governance has been soft law; this includes the guidance from
the UNHCR and the IOM on climate migration. While based on long-
standing human rights and considerations, it lacks practical methods for
enforcement. Hard law is the most difficult to achieve in that an instrument
needs ratification and inclusion in national law to be universally applicable.
This has also been the promise of the WIM; if its suggestions are accepted by
the parties and integrated into a treaty, it can be legalised (Simonelli, 2015).
However, formalising the WIM has been the problem. Consensus voting on
full treaty packages has relegated the WIM to being a sacrifice rather than a
central feature. International law currently incorporates only a few systems of
qualified majority voting that weigh votes according to the size or relative
importance of countries. These include double-weighted majority voting that
grants equal veto power to north and south (e.g., the treaties on stratospheric
ozone depletion), and special voting rights for countries with particular
interests or resources, such as in shipping (e.g., the International Maritime
Organization) or finance (e.g., the World Bank or the International Monetary
Fund) (Biermann et al., 2012). As mentioned above, consensus voting does
have its limitations.
Imagination allows a transcending of such assumptions and long-estab-
lished myths about problem-solving, including the assumption that wicked
problems remain unsolved due to complexity, rather than because of the
habitual, unimaginative or politically prescient filtering out of simple but
 Climate (im)mobilities: migration governance 177
unconventional solutions (Burch et al., 2019). One way that law can be
reimagined is to consider how sub-state entities (such as cities or states) can
ratify and participate in international treaties. This is a reinterpretation of a
scalar hierarchy but would allow subunits to participate in more autonomous
self-governance if they so choose to extend rights to migrants beyond what
their national governments so choose. Many cities have already joined the
UN Climate Protection (CCP) campaign by passing a resolution pledging to
reduce greenhouse gas emissions from their local government operations and
throughout their communities (Cities for Climate Protection Campaign,
2001); this can be done in other issue areas such as migration.
In a prescriptive sense, ESL should be more closely aligned with the
Anthropocene’s normative demands to the extent that it seeks to improve the
ability of law to better respond to the deeply intertwined Earth system and its
many complex socio-ecological challenges (Kotzé and Kim, 2019). To make
law more responsive, it needs to address questions of law that have yet to be
answered through imagination, adaptiveness and reflexivity. How climate
futures will play out is still uncertain, but this needs to be a built-in compo-
nent of newly developed legal instruments. For those becoming displaced
entirely from their homelands, the rights of the stateless are unclear and often
not enforced (Simonelli, 2015). It is not that they are not equal before the law,
but that no law exists for them (Arendt, 1951). The meaning of full state loss
is a legal demand that necessitates an answer in the Anthropocene. While the
Peace of Westphalia (1648) indicated statehood conditional based on terri-
tory, the 1933 Montevideo Convention also adds a permanent population and
capacity to enter into agreements with other states and some scholars argue
that even this has been loosely applied (Simonelli, 2015). The right to
nationality may need to be coupled with sovereignty issues and self-govern-
ance. Such as in a more robust semi-autonomous region, if an entire nation
needs to relocate, they keep a small sub-state apparatus for the maintenance
of their previous political relationships, their relationship with their new
homeland, and to govern whatever old jurisdictions remain. This is directly
related to the right to self-determination in that a small nation should not
have to be swallowed by the sovereignty of a larger one by the sheer geo-
graphical luck of having higher ground. A strong form would ensure social
justice for the migrating country.
Considering the sheer enormity of climate changes, the right not to be
expelled or deprived of entrance to one’s territory of nationality is not a right
that can easily be ensured. Millions of people will not have the resources to
either adapt in situ or safely return to places severely degraded. Recouping
environmental justice in this instance has been discussed in terms of liability
and compensation – two words which have distinct legal meaning and yet
have stalled international negotiations for decades. As the argument has been
presented, in a world of polluters pay, it is the liable countries that need to
take responsibility for climate refugees (Ahmed, 2018). However, these
nations are reliant on fossil fuel, and some have tended to be xenophobic
178 Andrea C. Simonelli
towards outsiders in recent years. This has led to pressure to make sure that
they are not held liable for climate migration and displacement in the
UNFCCC. The desire of small nations to try to push for compensation
facilitated a 22-year gap in the development for a mechanism to address loss
and damage (the WIM) and wasn’t attempted again until the draft document
in the run-up to the Paris Conference of the Parties (COP25) (Simonelli,
2015). Forcing nations that want no part in assisting those they have harmed
needs to be understood in terms of the reconstitution of lives and livelihoods
rather than monetary compensation. Non-economic loss cannot be accounted
for with payments, but with the redevelopment of communities in locations
that are most like home, with ecosystems that will support similar plants and
animals. Not that sustainable development in this manner will be inexpensive,
but non-retributive. Again, this is where a functioning and legally indepen-
dent WIM could be of most use; legal frameworks define the scope of
responsibility which IGOs have (ibid.). A fund for community relocation
under the WIM is less directly penalising than direct liability but can still be
proportional by emissions. This fund can also be subsidised through migrat-
ing states’ local economic resources; some states may continue to have
booming Exclusive Economic Zones (EEZ) even after their land ceases to
exist. By expanding the definition of territory in the UN Convention on the
Law of the Seas (UN General Assembly, 1982) to include submerged terri-
tory, sovereign island states will be able to continue supporting their citizens
through fishing licensing. Doing so will also allow a national fleet to fish if
they so choose.

Conclusion
Current IGOs are limited in their ability to govern climate migration and
displacement by either mandate, structure, or developmental infancy. This is a
feature of the way that governance is couched in historical ways of thinking,
set in the past, path-dependent on assumptions of political change but ecolo-
gical stability. With the realisation that human activity has changed this, the
Anthropocene is the new normal. Unstable planetary systems mean that one
positive environmental treaty cannot suffice as business as usual prevails.
Successfully navigating the years ahead necessitates an innovative perspective
inclusive of both human and ecological systems; Earth systems governance
and law have a broad application and consider the many ways in which inte-
gration is needed. Normative reforms were explored through an ESL response
to existing governance and legal gaps, such as sovereignty and self-govern-
ance, social and environmental justice for migrants, and cultural loss. This is,
however, just a starting point. The reforms here need to be fully developed
and considered as alternatives to the currently stalled legal and governance
systems. Most importantly, systems change begins with individual change.
Without internalising an ethical responsibility for the other as condition of
the Anthropocene, nothing else will matter. There is a need to rethink systems
 Climate (im)mobilities: migration governance 179
to prevent harm and derive new legal remedies for anticipatory problems, the
current paradigm is not enough, and every person needs to act as if they are
responsible to and for each other. Many Indigenous societies already do this. The
problems of the Anthropocene are far more complex than previous environ-
mental disruptions; surviving it will take reflexibility, adaptability, and imagina-
tion. Past conceptions of governance, law, and power can no longer be relied
upon: they brought humanity to this point; with those most immediately being
displaced by climate impacts still legally immobile.

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Treaties and conventions

1648 Peace of Westphalia.
1933 Montevideo Convention on the Rights and Duties of States.
Part IV
The transformative dimensions
of Earth system law

This Part examines the transformative pathways ESL should develop and the
extent to which adaptive legal systems can serve as a transformative concept
for law in the Anthropocene.

DOI: 10.4324/9781003198437-14
11 The Earth system, the orbit, and
international law
The cosmolegal proposal
Elena Cirkovic

Introduction
This contribution focuses on non-human agency in the context of environmental
degradation in the Earth system and the Earth’s orbit (EO). It looks at space
environmentalism and the limits of international law’s capacity to address sus-
tainability in the Earth system and outer space (Cirkovic, forthcoming). While
the ongoing debates on how best to mitigate, regulate and stop climate change
have not reached any conclusions in international law, human activities in outer
space have also resulted in anthropogenic contamination, such as orbital debris.
Contemporary human activities in outer space reveal the state commercial nexus
in international law, and the centuries-old tradition of dominium, imperium, and
commercium liberum. They also show an engagement with sustainable and
cooperative activities, including scientific research, space-based observations of
the Earth system.
The chapter will be divided into two sections. First, it will provide a brief
overview of the legal instruments applicable to outer space and space envir-
onmentalism. The second section will elaborate on a theoretical proposal
conceptualised as the cosmo-legal (or the cosmolegal). With the example of
the relationship between law, orbital space, and the Earth system, the cos-
molegal approach provides an alternative for thinking about all entities and/
or spaces/domains considered to be non-human. The cosmolegal proposal is
rooted in transdisciplinary scholarship, plural experiences, and knowledges.
Furthermore, it is intended to enhance the educational efforts that seek to
reconnect the human with all that is imagined to be non-human, in a less
asymmetrical and more anticolonial manner (both, in relation to other
humans, as well as the non-human).
The term cosmolegal allows for a shift in the imagination and anthropo-
centric understanding of the cosmos, which would not see the human, and its
laws, as a central actor of the Earth system and the cosmos, or as the apex
predator, owner and manager, of all it can reach and appropriate. Rather, the
human species is only one of the actors in the cosmos, known and unknown.
Cosmolegality implies that human-made laws would need to recognise the
fundamental conjectures and limits of the international legal architecture.

DOI: 10.4324/9781003198437-15
186 Elena Cirkovic
Phenomena such as orbital debris do not have a predictable outcome regard-
ing their impact on human survival and global governance. To foster the
exchange of best practices in the use of outer space technologies for the pur-
pose of climate change monitoring, mitigation and/or climate-related adapta-
tion activities, this chapter argues for a more inclusive epistemic approach to
norm production and law-making. As legal practitioners have yet to be able
to see, hear and understand the world beyond the confines of formal anthro-
pogenic and anthropocentric law-making, there is a need for approaches that
would be more pluralistic and inclusive of plural variations in cognitive
forms, ways of knowing and thinking. Due to the intensification of commer-
cial uses of outer space, and open use of language such as the colonisation of
outer space (Mandelbaum, 2018; Prescod-Weinstein et al., 2020), new reg-
ulation will need to account for the legacy of colonial experiences and the
importance of including plural knowledges for the protection of environments
in the Earth system and outer space.

The outer space environment and international law

The increasing complexity of space missions, the introduction of large con-
stellations of satellites, and the increased risks of collision due to space debris
and congestion all affect the long-term sustainability of space activities (The
Hague International Space Resources Research Group, 2019). There are cur-
rently approximately 170 million objects in orbit – mainly debris – which could
collide with functioning satellites. Large installations, (McDowell, 2020) such as
SpaceX, are being developed – mostly for Low Earth orbit (LEO) geocentric
orbits with altitudes below 2,000 km (1,200 mi) – promising to provide afford-
able connectivity to all parts of the world (One Web, 2020; SpaceX, 2021).
With an increase in activities and actors in outer space, can all the private and
public actors be persuaded to act respectfully towards the environment? Orbits
are a critical part of the Earth environment and are crucial for the ongoing
monitoring of the Earth system. Is outer space a domain that has value in and
of itself, or does it gain value via its utility for individual states and various
sectors (commerce, military, security, etc.)? The growth of private sector-led
activities in outer space is motivating the current debates on the applicable
international law. Namely, how does international law recognise and reconcile
humankind’s common heritage in outer space, and new commercial interests of
states and private enterprises (Feichtner, 2019)?
The environmental impact of activities in space unfolds on multiple levels,
including conservation of environments on other planets. Planetary protection
aims to protect solar system bodies from contamination by terrestrial life and
protect Earth from possible life forms that may be returned from other solar
system bodies. Regulations are based on obligations identified in the Outer
Space Treaty (OST) or Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies (which entered into force in 1967) (Feichtner, 2019; United
 Earth system, orbit: the cosmolegal proposal 187
Nations, 1967), on the basis of advice provided by the Committee on Space
Research (COSPAR) (Klinger, 2019). The OST continues to be the core
instrument of international law governing outer space. The current liability
for damage resulting from hazardous activities, however, does not specifically
address private actors, as all activities in outer space are national activities.

Orbital debris
Functional spacecraft share the near-Earth environment with natural
meteoroids and the orbital debris that has been generated by past space
activities. Meteoroids orbit the Sun and rapidly pass through and leave the
near-Earth region (or burn up in the Earth’s atmosphere), resulting in a fairly
continual flux of meteoroids on spacecraft in Earth orbit (Witze, 2018). In
contrast, artificial debris objects (including non-functional spacecraft) orbit
the Earth and will remain in orbit until atmospheric drag and other perturb-
ing forces eventually cause their orbits to decay into the atmosphere (ibid.).
Since atmospheric drag decreases as altitude increases, large debris in orbits
above about 600 km can remain in orbit for even millions of years (ibid.).
There is no definite legal definition of orbital debris in international law,
and it is generally understood to be human-made objects, including their
fragments and parts, which are in orbital space, re-entering the Earth’s
atmosphere, or reaching the Earth’s surface, that are non-functional with no
reasonable expectation of being able to assume their intended functions or
any other functions for which they are or can be authorised (UN Committee
on the Peaceful Uses of Outer Space: Scientific and Technical Subcommittee,
2007, background, para 1). As the functional status of a space object does
not, as such, affect the applicability of rules of international space law, orbital
debris remains subject to the same rules, which apply to space objects.
Some spacefaring states have voluntarily implemented non-binding space
debris mitigation measures into their national space laws and technical stan-
dards as mandatory requirements (UN Office for Outer Space Affairs, 2021).
For other states, such recommendatory instruments can serve as an indication
of an expected standard of due regard. In implementing space debris mitigation
measures on a voluntary basis, states are recommended to follow some of the
existing non-binding guidelines and technical standards, which have been
developed by international governmental and non-governmental organisations
and other international forums.
The OST allows for outer space, which includes the Moon as well as celes-
tial bodies, to be available for the exploration of, and use by, states, and sti-
pulates that they bear international responsibility for national activities that
involve space debris and to ensure these activities also conform with the pro-
visions laid down in the treaty. In addition, the study and exploration of outer
space are to be undertaken in a manner that avoids harmful contamination,
and that the states develop appropriate measures to make sure this remains
the case (United Nations, 1967). The 1979 Moon Agreement (Agreement
188 Elena Cirkovic
Governing the Activities of States on the Moon and Other Celestial Bodies)
which entered into force in 1984, contains a similar provision – requiring
states exploring and making use of the Moon, to take measures to avoid dis-
rupting its environment from harmful contamination. Importantly, space
debris has an impact on the fragility of the outer space environment and is
qualified as contamination (United Nations, 1979).
In 2007, the UN General Assembly endorsed the Space Debris Mitigation
Guidelines of the UN Committee on the Peaceful Uses of Outer Space
(COPUOS) and agreed that these voluntary guidelines reflected the existing
practices as developed by a number of national and international organisa-
tions (UN Committee on the Peaceful Uses of Outer Space, 2010); including
those developed subsequently, under the US Trump administration, for
example, (Trump, 2018). In June 2019, the Guidelines for the Long-term
Sustainability of Outer Space Activities of the Committee on the Peaceful
Uses of Outer Space (LTS Guidelines) were adopted (UN Committee on the
Peaceful Uses of Outer Space, 2019). The Guidelines provide guidance on the
policy and regulatory framework for space activities; safety of space opera-
tions; international cooperation, capacity building and awareness; and scien-
tific and technical research and development. Echoing the intensified
international discussions on space debris, UNOOSA and the United King-
dom signed an agreement to promote space sustainability (UNOOSA, 2021).
The agreement between UNOOSA and the UK intends to encourage all
actors to implement the LTS guidelines.

Proposals: Space Sustainability Rating (SSR)

There have been several ongoing attempts to address the issue of environ-
mental pollution in the orbit, and to foster global standards in waste mitiga-
tion. For instance, the World Economic Forum has chosen a team led by the
Space Enabled research group at the MIT Media Lab, together with a team
from the European Space Agency (ESA), to launch the Space Sustainability
Rating (SSR) (Rathnasabapathy et al., 2020), a concept developed by the
Forum’s Global Future Council on Space Technologies. (MIT Space Enabled,
n.d.; World Economic Forum, 2021) The envisaged SSR aims to promote
mission designs and operational concepts that avoid unhampered growth in
space debris. It promotes a future where environmental review would be taken
into consideration during the early stages of design and development.
The SSR is designed to ensure long-term sustainability by encouraging
more responsible behaviour among countries and companies participating in
space. When satellite operators design their satellites, they are able to choose
which altitude to use, and for how long their spacecraft will operate. The
nature of the operations is a factor because the same piece of debris that
could cause serious damage to one type of spacecraft might do little harm to
a spacecraft with a different configuration or orbital attitude. The accurate
representation of the orbital state uncertainty is important to realistically
 Earth system, orbit: the cosmolegal proposal 189
estimate the risk of collision (McDowell, 2020). Satellite operators therefore have
a responsibility to design their satellites to produce as little waste as possible in
Earth’s orbit. The SSR operates on the premise that it can create an incentive for
companies and governments operating satellites to take all the steps they can to
reduce the creation of space debris (Rathnasabapathy et al., 2020).

Planetary protection
Planetary protection aims to prevent contamination between Earth and other
bodies in the context of space exploration missions. To ensure that scientific
investment in space exploration is not compromised by cross-contamination,
special care needs to be taken by all actors and stakeholders. COSPAR has
concerned itself with questions of biological contamination and spaceflight
since its very inception. Generally, the basic mandate of planetary protection is
to avoid biological and organic contamination of outer solar system bodies, in
particular icy moons, to avoid jeopardising the search for extra-terrestrial life,
precursors and remnants and, to protect Earth and its biosphere from extra-
terrestrial sources of contamination. The process of determining planetary
protection regulations for a specific mission depends on the target body (e.g.,
Mars vs the Moon); the type of encounter (e.g., Orbiter vs Lander) and specific
goals (e.g., to see if the target body has/had life). Each mission presents unique
contamination challenges and therefore has different requirements.
NASA, for instance, checks biological materials that are being sent on each
mission to the lunar surface. This is not mandated by international law, but
most spacefaring nations adhere to this policy of planetary protection under
guidelines established by COSPAR. The guidelines dictate how much biolo-
gical material can be sent into space based on its destination. COSPAR
maintains and promulgates this policy on planetary protection for the refer-
ence of spacefaring nations, both as an international standard on procedures
to avoid organic constituent and biological contamination in space explora-
tion, and to provide accepted guidelines in this area to guide compliance with
the wording of the OST (United Nations, 1967) and other relevant interna-
tional agreements.

Limits of environmental protection in outer space law: some general

conclusions
In the current body of space law, most national space laws have expanded the
notion of national activities to cover the space activities of its nationals even
if carried out from abroad. Similarly, the legal concept of quasi territoriality
extends the jurisdiction of a state by virtue of Article VIII of the OST (United
Nations, 1967) and the Convention on Registration of Objects Launched into
Outer Space (United Nations, 1974).
The economic interest in asteroid mining focuses on the new delineation,
ownership, privatisation, and extraction of space resources. The Luxembourg
190 Elena Cirkovic
Draft Law on the Exploration and Use of Space Resources echoes an early
eighteenth-century French law to argue space is akin to the sea; resources of
space, like fish or shellfish, may be appropriated, but, like the high seas,
asteroid and celestial bodies may not (Government of Luxembourg, 2016).
Here, the objective is to create legal certainty as to who owns what mineral or
other resources, on which asteroid or body. The adopted law argues that OST
only prohibits the ownership of celestial bodies, but not the potentially
extracted resources. It separates the definition of a celestial body from any
resources to be found on that body; approved operators must nevertheless act
in accordance with the provisions of their approval, and Luxembourg’s inter-
national obligations. It should be noted that the rights to catch fish and shell-
fish on the high sea beyond national jurisdiction have been recently evaluated in
relation to the demands of environmental protection, indicating that such rights
are not absolute. The law of the sea analogy is not limitless, however. For
instance, Canada, China, Iceland, Japan, South Korea and the European
Union have negotiated and will sign an agreement in Ilulissat, Greenland, on
the 16-year moratorium on commercial fishing in the High Arctic. The agree-
ment commits the countries to major scientific work on the entire ecosystem of
a region that climate change is making increasingly accessible. Nevertheless,
outer space cannot be treated as the new frontier and res nullius.
Other countries have their own legislation governing the utilisation of space
resources, including the US (US Congress, 2015), and such laws are examples
of emergent national policies and laws promoting exploration, exploitation
and utilisation of space resources. While the enactment of national law may
be complementary with international space law and might facilitate its
development, such national law still needs to comply with the international
obligations of the state. States bear international responsibility for the
national space activities of private entities; and the launching states are abso-
lutely liable for any damage caused by their space objects on the surface of the
Earth or to aircraft in flight and for any damage caused in outer space to the
extent that the damage was caused by the fault of the launching state. These
implications have two important effects on the activities of a commercial space
venture, particularly in the launch, transit and return segments of a commercial
space mining venture. First, it is necessary for the venture to comply with the
provisions of the OST (United Nations, 1967), as the appropriate state should
take steps in its continuing supervision of the activity to ensure this compliance.
Second, states are likely to take positive steps, such as the enactment of
domestic laws and regulations, to pass on their international responsibility and
liability under the OST (ibid.) and the Liability Convention (United Nations,
1972) to the private entities engaged in space activities.
Notably, this issue is not unlike pre-existing extensive scholarly and prac-
tical debates on the relationship between international public and private law
and transnational law. There is some academic discussion about the global
functional differentiation occurring, such that state legal systems are being
replaced by autopoietic social systems, and that stateless global laws are
 Earth system, orbit: the cosmolegal proposal 191
emerging, which use either a binary code of legal/illegal and/or reproduction
by a symbol of global (not national) validity. The primary is the lex merca-
toria founded on a basis of a self-validating (and paradoxical) contract. This
system merely accepts the contract as its foundation and resolves the paradox
of a contract that validates itself through the norms of mercantilism, private
dispute resolution, and similar avenues such as commercial arbitration (Luh-
mann, 2004; Teubner, 2019)
Initial accounts of transnational private contracts as existing beyond the state
tended to overemphasise the self-validating contract, in which there is apparently
no reference to (or expectation of) state process, state law, or even bargaining in
the shadow of state law. In some of the current proposals for outer space envir-
onmental soft law procedures, the reliance on voluntarism seems to echo this
discussion. However, national activities as enshrined in OST (United Nations,
1967) are not mutually exclusive with the emergence of commercial interests in
outer space, and the either/or approach seems to present lex lata as either invalid
or in need of complete reform. While, from the environmental perspective, and
especially the argument proposed in this chapter, there is a dire need for greater
environmental protection, a complete disavowal of existing law would arguably
also not be the most responsible step ahead. Namely, contract, whether deferred
to by state law or, after some point, automatically understood as constitutive in
its own right by parties, becomes both the moment of connection to established
state law, and its moment of separation. This law-making moment involves both
the role of public regulation and private law, such as tort law, in protecting and
intruding interests of third parties from the effects of these consensual rela-
tions. Even as between contractual parties, state law and process remain pre-
sent in constituting the private ordering between contractual parties. With
respect to contractual dispute settlement, the analysis obscures the role of
state law in sustaining the procedures of arbitration. Most observers would
see that transnational business actors do not engage in the use of a purely a-
national lex mercatoria propria – whether customary norms or contractual
norms – in isolation from the state system.
Other initiatives such as Corporate Social Responsibility (CSR), have ulti-
mately failed to address Earth system level problems, such as climate change
(Beck and Woolfson, 2019), which has encouraged increased academic research
and discussion on the frontiers of law, including the role of space agencies and
their possible participation in a discussion on sustainable corporate governance.
Some of the issues in need of exploration include the recognition of stakeholders’
interests such as employees and customers, as companies are expected to do, as
well as addressing human rights abuses, and environmental pollution and the
roles and responsibilities for directors and shareholders (Erik Castrén Institute,
2019). A more holistic approach is indeed needed. This should not be seen as a
balancing act or bargaining between the private interests of various stakeholders,
but rather as creating a good regulatory framework for sustainable value crea-
tion within planetary boundaries. Further, the holistic approach should not be
limited to companies but all undertakings.
192 Elena Cirkovic
Sustainable value creation is an emerging concept in corporate law and
corporate governance, increasingly included in European corporate govern-
ance codes (Sjåfjell, 2020). For such a concept to be a meaningful contribu-
tion towards a sustainable future, it should draw on sustainability science and
reflect the multifaceted and interconnected environmental, social, cultural,
economic and governance aspects of sustainable development. This further
entails supporting democratic political processes and as a minimum not
undermining these through engaging in corporate capture of regulatory pro-
cesses. It also entails contributing to the economic basis of the societies in
which the business interacts by not engaging in so-called aggressive tax plan-
ning and outright evasion. Positioning sustainable value creation within pla-
netary boundaries (or the ecological limits of the planet), is an explicit agenda
of the EU 7th Environmental Action Programme (European Union, 2013).
Extending this to outer space concerns brings to the forefront, first, that there
are ecological limits (conversely, that being perceived as environmentally
friendly while not respecting those limits is inadequate). Second, it highlights
the complex interactions between planet-level environmental processes, and in
outer space, recognising, for example, that climate change, however topical
(and difficult to mitigate), is only one aspect of the convergence of crises that
are ahead. Similarly, this also applies to the problem of orbital debris and
possibly planetary contamination, or other unintended externalities of human
activities in outer space. Third, it continuously reminds us that state-of-the-art
natural science must inform decisions on a work-in-progress basis, which also
means drawing on the precautionary principle.
In addition to these points, the legality of all aspects of a commercial space
mining venture must be assessed, most notably, the effects of the freedom of
exploration and use and the principle of non-appropriation on the exploration
and extraction segments of the operation, as well as the province of all
humankind and common heritage of humankind doctrines on the exploita-
tion segment. Commercial prospecting, exploration, utilisation, and extrac-
tion of resources in outer space, as the common heritage of humanity, need to
be conducted for the benefit and in the interest of all humanity, as per the
Article I of the OST (United Nations, 1967). This means that any granting of
exclusive property rights for exploration and extraction activities is pro-
hibited. However, there is an element of ambiguity regarding obligations, if
any, for the dissemination of the prospecting and exploration data and the
materials extracted from celestial bodies. This also includes the lawfulness of
physically removing materials from celestial bodies for the purpose of com-
mercial exploration and extraction. These activities are related to the issue of
interplanetary contamination as these activities could result in adverse effects
on the Earth through contamination by the introduction of extra-terrestrial
materials into the environment of the Earth.
In conclusion, legal authorisation of space resource utilisation and appro-
priation needs to be evaluated not only in the context of common heritage of
humankind, and compatible with the OST and general international law, but
 Earth system, orbit: the cosmolegal proposal 193
also with greater sensitivity to the environments of the Earth system and outer
space. Instead of the continuing pursuit of state and commercial interests, if the
outer space environment is to be approached with long-term sustainability in
mind, a novel manner of thinking is required. The law needs to reflect initiatives
such as the advancement of Earth system science via outer space technology. For
instance, legal activities, as well as scientific activities can aim at maximising the
impact of space agencies in terms of answering open questions in Earth system
science and addressing global scientific challenges and community priorities
posed by international Earth system science communities.
Thinking that would demand a step away from international approaches
and towards planetary and even cosmic is proposed below via the cosmolegal
concept. It is meant to be an illustration of what posthuman approaches to
outer space could be, rather than an assertion. It is also intended as a step
forward to a different set of relations among humans, as well as transcor-
poreality (Alaimo, 1994) of an always interwoven relation with entities
deemed as non-human.

The cosmolegal proposal

The planetary issue of space debris is something that leaders in science, tech-
nology, law and social sciences have to solve together. The decision making
would need to take an anticolonial, pluralistic, and inclusive approach to
knowledge, as new regulatory challenges require expertise beyond diplomacy
or social sciences. As international law is not only an anthropocentric but also
state-centric system, other disciplines and ways of knowing have had, at best,
a consultative status. This contribution invokes the term cosmolegal to argue
for the recognition of the interrelatedness in the Earth system (Cirkovic, 2019)
and broader planetary challenges. International law is designed to regulate
human behaviour and is built on certain assumptions of how human beings
behave and demonstrate agency. For instance, sociology and law focus on
human interactions and give agency to humans or their fictitious creations,
such as the corporation. Entities considered as non-human objects are not
recognised as having agency. However, to the extent to which non-human
beings or physical and biological processes escape human control and react in
unpredictable ways, these assumptions of what has agency, no longer apply.
The objective of the cosmolegal project can thus only be achieved by com-
plementing the critical legal analysis with empirical qualitative research, and
transdisciplinary thinking and training.

The role of transdisciplinary thought and practice

The cosmolegal project introduces topics at the intersections of space tech-
nology and sustainable development by examining technical, policy and social
aspects of space technologies. In practice, this could involve work on tech-
nologies, such as satellite earth observation; satellite communication; satellite
194 Elena Cirkovic
positioning; human space flight and microgravity research; space technology
transfer; fundamental scientific space research; and small satellites. The practical
realisation of the proposal would require the establishment of interdisciplinary
research centres that explore how these technologies can promote sustainable
development via discussions, lectures, teaching and projects. Hence, beyond its
normative theoretical framework, the proposal considers development from the
perspective of leaders at several levels, including international development
agencies, national governments, local and community leaders. The ongoing
objective is to advance the complexities of the Earth system and outer space,
including all entities that are considered as non-human.
The cosmolegal project defines justice in two ways. First, the deconstructive
approach to justice understands that it can never be conferred on the other,
without a capacity to fully transport oneself into the existence of the other.
Second, the project does take a normative stance towards environmental pro-
tection of the Earth system and outer space, and therefore defines its justice as a
reorienting away from the prioritisation of utilitarian, wealth- and technology-
oriented aspects of the global state commerce technology nexus. For instance,
technologies from space have been used to support sustainable development for
decades, however, barriers remain that limit the impact of these technologies,
including a more commercial and profit-driven aspect of their utility.
More specifically, the transdisciplinary aspect of the proposed cosmolegal
principle and method does not automatically mean a borrowing or translation
of other disciplines; instead, it seeks to present possibilities rather than abso-
lutes. A combination of social sciences with natural sciences does not auto-
matically provide correct answers. Philosophy of science has been grappling
extensively with this tension between the social and scientific (Latour, 2004).
The cosmolegal proposal moves towards the situatedness of activities
and related knowledge beyond social contexts (global or local). It joins the
extensive scholarship that argues for an undoing of current boundaries
between natural and social sciences. As Science and Technology (STS)
scholarship has already pointed out, scientists are also situated in social
settings, which influence the knowledge production on nature (Jasanoff,
2016). Due to the self-understanding of law as a formal discipline, and
similar to science, it often digests other knowledge systems to suit parti-
cular purposes (Luhmann, 2004). Instead, a cosmolegal approach would
lean towards taking into account everything in the universe, including
human bodies and lives, transcorporeality, and, therefore, humans as more
humble participants and observers instead of as the dominant conquering
species of the cosmos.
For instance, the appropriation of quantum mechanics outside physics has
allowed an understanding beyond ontologies of spheres or levels, challenging the
nature-culture divide, as demonstrated in the double slit experiment, whereby light
and matter can display characteristics of both waves and particles (Feynman et al.,
1965). There are different possibilities, reactions not easily predictable by the
human mind, and constantly changing limitations on what or who is not,
 Earth system, orbit: the cosmolegal proposal 195
knowable. The existence of the unknowable and the unknown could be seen as an
invitation to reimagine the world (Hamzić, 2017).
Cosmolegality would need to be constantly open to contingencies in future
coefficients of friction (i.e., observable friction among various processes, hence
deviating from what might be considered a normal relation).
The idealising assumption of the world’s total knowability and determin-
ability in accordance with laws that humans perceive or create leads to a frus-
tration with the limits imposed by them. There is potentially danger in
assuming that science will rescue social sciences, including law, as this assump-
tion merely allocates its safe final answers to science. In social sciences, physical
laws are often discussed as if they were universal in their reality or at least their
mathematical description (Winch, 1990). However, as Feynman argued, no law
is exact. Rather, ‘There is always an edge of mystery, always a place where we
have some fiddling round to do yet’ (2017, p. 33). For physicists and cosmolo-
gists all laws, human and non-human, are constructed by humans, and as such,
they are always laws proposed and defined by situated knowers; there is no
outside perspective beyond human knowledge. Physicists or cosmologists also
live in a case study they have of the universe. As the STS literature has also
warned, natural sciences cannot assume a God-like view and need to recognise
relevant social constructions (Jasanoff, 2016).
The increasing scholarly interests in the study of anthropocentrism have
been influenced by climate change, and environmental degradation more
generally, implicating the need to revisit studies of the relationship between
human and non-human. At the same time, the critique of anthropocentrism
risks reproducing the cultural bias if it does not recognise histories of global
inequalities and colonialism. The bundle of regimes that constitute interna-
tional environmental law still rely on anthropocentric and state-centric foun-
dations and practice of international law; the 1982 UN Convention on the
Law of the Sea (UNCLOS), which entered into force in 1994, is typical of
such notions, which apportions rights, divests catastrophes, and seeks to both
decimate and protect marine life (Cloutier de Repentigny, 2020; Sharon,
2019). In the realm of the commons, the common heritage principle also did
not live up to its promise of providing a foundation for imposing meaningful
limitations on resource extraction to prevent ecological harm (Feichtner and
Ranganathan, 2019, p. 541).
The cosmolegal proposal, therefore, seeks to combine the ongoing trans-
disciplinary critique with a proposal for the inclusion of non-human law such
as the geochemical or biological cycles of the Earth system, its orbit, and
beyond. For instance, how can international law extend into orbital space
which is governed by a different spacetime? Importantly, the cosmolegal pro-
posal echoes strands of human thought which has challenged the appearance
of distinctions and disparate attributes of the world. The Earth system as a
whole demonstrates that its apparent fracturing in human understanding,
practice and regulation does not stem from its own inherent multiplicity, but
from the human understanding thereof. The law, instead of being the mirror
196 Elena Cirkovic
of permanently split human subjectivity, would recognise the indeterminate
nature of the world beyond it. Cosmolegality requires a different ontological
approach (Burton et al., 2012) because it recognises the possibility of many
co-present variables. Opening possibilities for normative rethinking of the
world of law-making is necessary because new activities, which extend the
borders of the current international law are becoming possible (such as the
mining of the Moon) and include the unintended or unexpected reactions of
various environments. The key working method of the cosmolegal project is
to facilitate cooperation and interaction among different disciplines and
knowledge, including an opening for contingencies provided by the agency of
the non-human, and other dimensions/spaces, where humans seek to extend
their activities and life. Part of the cosmolegal argument rests on the hypoth-
esis that a claim to a total understanding of natural phenomena, such as cli-
mate change (or geoengineering), is not accurate. There is not sufficient data
to predict the long-term effects.
For the purposes of outer space law, this contribution argues for the cosmo
aspect of legality. It also recognises that these debates have been present for
quite some time (Jenks, 1965). In practice, there already efforts in civil society
and academia to provide a commentary on the future of international law-
making on the interrelatedness of outer space and the Earth system. Projects
such as Space Enabled, located at the Massachusetts Institute of Technology
Media Lab, stem from an inherent lack of predictability in the world, whereas
modern legal thinking has been rooted in specifically human experience and
particular ontological developments in modernity and law. Novel challenges
are a constant issue for the legal discipline (including new discoveries, tech-
nological advances, environmental changes, and the like).
The proposed thinking seeks to delineate the law’s disciplinary extension
towards the inclusion of the Earth system as a planetary entity, and therefore
also in relation to extra-terrestrial spacetime. In practice, it should be rich
enough to capture a wide variety of learning problems. Standard research
methods in legal studies gain new undertones in this proposal as they become
deployed in uncertain and prospective settings. As the law is either still
developing or does not exist at all, such research would have to parse together
the future law applicable to non-human agencies from data, conceptual
structures and materials emanating from other contexts and disciplines.
The cosmolegal proposal belongs to legal approaches, which emphasise the
multidimensional and interactive nature of human reality. It echoes the post-
human approach of political theorist Jane Bennett, who has argued for the
term ‘vibrant matter’ in the political agency of the non-human and defines
vitality as the capacity of things, such as metals, to influence the will and
designs of humans, as well as to act as agents or forces with laws of their own,
and to conceptualise the diffuse set of actors (both human and not) that are
involved in the enactment of any given phenomena (Bennett, 2010). This
perspective recognises the capacity of anything non-sentient to influence its
surroundings. Greenhouse gases (GHGs) act in accordance with non-human
 Earth system, orbit: the cosmolegal proposal 197
biochemical and other laws, and, as such, influence all life in the Earth
system. Human-made orbital debris now needs to be controlled in a variety of
ways, including, for instance, accurate prediction of the future path of debris
in deciding if and when to manoeuvre satellites to avoid collisions.
While a biological or material mechanism does auto-develop according to a
set of its own laws, these laws, as Earth system science demonstrates, are not
based on fully self-enclosed systems (Steffen et al., 2018). In addition, a bio-
logical life or matter does not need to be aware of itself to have agency. Nor
does this mean that the category of the subjective experience is superfluous, or
unnecessary, to the materialism displayed by matter. Indeed, there are too
many ways the world could be, and there are too many sequences of precepts
that one could have of the world. It is not possible to anticipate them all. For
some domains, the written law can compactly implement the same function as
the table of reactions. The cosmolegal takes as one of its constraints that the
developed mechanisms need to be related to the mechanisms that go on
among non-human entities and/or environments. Its research horizon builds
on this hypothesis of profound discontinuity. On one hand, the ensuing
changes are likely to contribute to new imaginations within the existing
anthropocentric conceptual structures. On the other hand, there is a need for
novel responses, adaptations, and legal modalities that can go beyond the
human-centric model. The doctrinal and theoretical analyses of existing law
would gain nonstandard undertones, as the task is to reimagine legal subjects
and legal ontologies. Scholarship on posthuman law has been engaging with
other disciplines to emphasise the human-centric nature of modern law, for-
bearing a nascent engagement with imagining a new legal future where non-
human agents are intertwined with humans.

Pluralism in cosmolegal thinking

The cosmolegal proposal underscores that Indigenous peoples’ traditional
knowledge has become a reference in various reports on the Earth system.
However, Indigenous peoples, or any peoples, are not a monolithic constant.
For instance, terminology such as Indigegogy is largely situated in North
America. It is a term coined by Cree Elders Peggy and Stan Wilson (Wilson,
2015) to frame Indigenous knowledge, literature and scholarship. Impor-
tantly, in the context of outer space, institutions are using such Indigenous
knowledge, such as the North American Space Agency (NASA), which has
an initiative, the Indigenous People’s Pilot, intended to facilitate Indigenous
communities’ use of satellite remote sensing for natural and cultural resource
management (NASA, n.d.). Considering the importance of outer space in the
monitoring of challenges such as climate change in the Earth system, it is
important to point out different approaches to outer space.
This is especially relevant in what is now a discourse of outer space colo-
nialism. This semantic does not think of Mars, the Moon, and other planets
as somehow not belonging inherently for the use of humanity. This is what
198 Elena Cirkovic
the 1979 Moon Agreement sought to address. However, 18 states became
parties to it. The Moon Agreement emerged from the discussions over legal
stewardship of the Moon. One area that has yet to be explored in scholarship
and practice is the idea of recognising outer space as possessing agencies, in a
similar manner to what is being discussed for the Earth system (including, for
example, new materialisms and animal cognition).
The colonising argument evokes a frontier-focused history of international
law, and the otherwise outdated openness of empty spaces or res nullius.
While colonialism as such as been outlawed in modern international law,
imperial semantics remain in outer space law due to its extra-terrestrial nature
where humans do not live. However, as Iokepa Casumbal-Salazar has argued:

One scientist told me that astronomy is a benign science because it is

based on observation, and that it is universally beneficial because it offers
basic human knowledge that everyone should know like human anatomy.
Such a statement underscores the cultural bias within conventional
notions of what constitutes the human and knowledge. In the absence of
a critical self-reflection on this inherent ethnocentrism, the tacit claim to
universal truth reproduces the cultural supremacy of Western science as
self-evident. Here, the needs of astronomers for tall peaks in remote
locations supplant the needs of Indigenous communities on whose
ancestral territories these observatories are built.
(Casumbal-Salazar, 2017, p. 8)

Some astronomy scholars have warned against the use of colonial frameworks in
outer space, in relation to other planets (Mandelbaum, 2018; Prescod-Weinstein
et al., 2020). However, while collaborations between space agencies such as
NASA aim to include Indigenous knowledges, the status of Indigenous peo-
ples as non-state actors in international law has implications at the level of
intergovernmental decision making (Cirkovic, 2006).
The rhetoric of a right to space highlighted by some corners of the outer
space sector reflects not only anthropocentric assumptions, but also specific
values of imperium and commercium. Outer space is imagined as a limitless
resource – a space frontier. The metaphor of the frontier, with its associated
images of pioneering, homesteading, claim staking and taming, has been
persistent in the history of international law and colonialism. The following
section briefly refers to one alternative to such thinking as represented by the
cosmic hunt narrative. While this skylore is present with variations in different
human traditions of thinking, this chapter will narrow to focus on just one
example of the Siberian context.

The cosmic hunt

Some attention has been given to Indigenous knowledge and cosmovision in
which skylore is not a separate conceptual sphere, but rather one that is
 Earth system, orbit: the cosmolegal proposal 199
intimately connected to an overall belief system: a lived cosmovision. This sec-
tion will briefly refer to the complex ethnoastronomical data from the traditional
knowledge of Chukchi people, an ethnic group made up today of roughly 15,000
speakers who inhabit the extreme far north-eastern reaches of Eurasia. They are
divided into two groups: the Coastal Chukchi, who are a seafaring people, and
the Reindeer Chukchi, who move the year round across the wide spaces of the
tundra. Their daily life required them to be able to navigate across featureless
terrains. This final section offers a brief example of the Chukchi skylore, not
as an argument for a step away from other forms of knowledge production or
thinking, but as a complementary and helpful way of seeing the cosmos. In
particular, it demonstrates that humans have relied on outer space to facil-
itate their lives in the Earth system, and this can range from more traditional
forms of navigation to current uses of satellite data to monitor climate
change. Both, however, can be impeded if the LEO is overwhelmed with
space debris.
In this narrative, the outer space is not a limitless wilderness to be tamed,
but a space interwoven with the Earth system and humanity. For example, in
eastern Siberia the skylore of the cosmic hunt interprets Orion as the hunter
pursuing the reindeer associated with the Pleiades or Cassiopeia. The nearest
parallel is found in a version much further to the west among the Sami, in
which the hunter is again Orion and the animal being pursued is an elk or
reindeer in Cassiopeia. The association of hunters with Orion or with the
Pleiades is a feature shared by Yakut, Nganasan, Evenk and the Chukchi–
Inuit versions. In contrast, among the Evenk, the animal pursued is a moun-
tain sheep, while the three hunters are associated with the Pleiades. Similarly,
in one of the Nganasan versions, the Pleiades are hunters who catch the
reindeer with a net (Berezkin, 2005). The Chukchi observation of planetary
movement refers to the stars that go crosswise. The constellation of Auriga
represents a scene of traveling by reindeer. The constellation of Castor and
Pollux represents elk, fleeing from two hunters, each of whom is guiding a
team of reindeer. The constellation of Delphinus is a seal. The Milky Way is
called the Pebbly River. The five bright stars in the constellation Cassiopeia
are five bull reindeers, standing in the middle of the river. In the midst of
mother heaven is an immobile star secured with a stake, i.e., Polaris, around
which the other stars move about, nomadically. This location is said to be the
residence of the Supreme Being (Anisimov, 2019). The constellations Arcturus
and Vega are called in Chukchi the heads (Arcturus is Front head, and Vega
is Rear head). While traveling at night across the open tundra, the Chukchis
determine their direction by the position of the two heads in relation to each
other and to the North Star. The stars Altair and Tarazed of the constellation
Aquila are singled out by the Chukchis as a special constellation, Pegittyn of
the winter solstice (ibid.). Celestial bodies are part of everyday life and prac-
tice. They have helped, in practice, the people of the tundra to survive an
environment. The cosmos is an aid for survival and not a place to be
dominated.
200 Elena Cirkovic
This knowledge cannot be reduced to animism. It represents a particular
approach to the non-human environment and reference to outer space as
intertwined with daily life of a people, and a particular form of human
knowledge. Arguably, traditional Indigenous knowledges have come closer to
the openness towards non-human agency in their histories and practices,
which is why studies, such as the one proposed in this chapter, refer to them.
Traditions and approaches to non-human spaces diverge over the stewardship,
cooperation and respect model, versus the utilitarian, imperial, and com-
merce-driven model (MacDonald, 2017). The proposals for the mining of
asteroids and celestial bodies and colonies on Mars do not emanate from all
humankind. These arguments are a mere continuation of past practices which
have already been put into question due to the environmental degradation in
the Earth system, and histories of violence towards human and non-human.
Thence, the cosmolegal is normative and argues for a restructuring away from
the history of imperium and commercium, which now intends to push even
further into the cosmos.

Conclusion
As of 21 October 2020, eight countries have signed the NASA proposed
Artemis Accords, a set of guidelines surrounding the Artemis Program for
crewed exploration of the Moon. The United Kingdom, Italy, Australia,
Canada, Japan, Luxembourg, the United Arab Emirates and the US are all
participants in the project, which aims to establish a crewed lunar base by
2030. The accords are bilateral agreements. By establishing international legal
practice in the area of outer space regulation, they could have a significant
influence on any subsequent governance framework for activities in outer
space. The promotion of the accords outside of the existing channels of
international space law poses a challenge to the existing international law of
outer space.
The general proposal of this chapter aims to unsettle what seems to be
knowable, while at the same time embodying a normative, and admittedly,
finite and preconfigured objective that focuses on protection (or mitigation
and prevention of further environmental degradation) of the Earth system
and beyond, on a planetary scale. What might be the use of such thinking? In
order to answer this question, at least partially, transdisciplinary approaches
are necessary. The cosmolegal proposal hopes to contribute to the broader
socio-legal scholarship because it will seek to provide an alternative to the
current dominant conceptualisations of law. The ongoing assumption is that
humanity has an endless capacity to adapt and thrive through scientific and
technological inventions, even in the context of global warming, or in outer
space conditions. However, extreme spaces that are not inherently friendly to
human life: such as outer space, the deep seas, or extremities of the polar
regions, help reveal that such favourable outcomes are not at all pre-
determined. In practice, cosmolegal thinking aims to upgrade legal studies
 Earth system, orbit: the cosmolegal proposal 201
through engaged transdisciplinary work and propose a legal model that
prioritises the Earth system at the planetary level. Interdisciplinarity is at the
core of this proposal, as its aim is not only to push the boundaries of current
legal thinking and practice, but to reverse its normative architecture. Instead
of assuming that international law can be unlimited and intergalactic, cos-
molegality seeks to extend a different kind of normativity, which would move
beyond the social situatedness of the law among nations, or international. The
wealth of critical legal scholarship can also help interdisciplinary exploring of
the likely conceptual changes that may be triggered and also in understanding
the limits of the law’s immanent possibilities to facilitate these adaptive
processes.

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12 Integrating the Mexican water law into
the Earth system law perspective
Gabriel Lopez Porras

Introduction
The notion of the Anthropocene as a new geological epoch has two major
implications. First, the identification of human activities as the main driving
force for Earth’s change (Crutzen and Stoermer, 2000). Second, that because
of that, the planetary dynamics do not have the characteristics of harmony,
stability and continuity that dominated in the Holocene (Steffen et al., 2020,
p. 54). The Anthropocene is a key metanarrative for delineating the planet’s
natural history, recognising humans’ role in the emergence of a new epoch,
and establishing scientific and political duties for steering the future trajectory
of the Earth (Chernilo, 2017). Accordingly, the need for an Earth system
perspective to improve understanding ‘of the complex interactions between
the physical–biological–chemical Earth system and global societies’ (Shapiro
et al., 2010, p. 1378) is paramount in providing scientific support for policy
decisions (e.g., protection of all living forms or the conservation of water
ecosystem services) and strategies for better navigating the Anthropocene.
The Earth system is considered ‘a single, planetary‐level complex system,
with a multitude of interacting biotic and abiotic components’ (Steffen et al.,
2016, p. 325). Therefore, an Earth system perspective embraces a planetary
scale (from its core to the atmosphere) for analysing all cross-level and non-
linear dynamics, including, for instance, all the bio-geochemical processes or
human-induced impacts as driving forces in Earth’s pathways (Hamilton,
2016). Aiming to better understand the structure and functioning of the Earth
system, Earth system science focuses on analysing global changes, their
impacts and risks, and other phenomena, such as climate change and biodi-
versity loss (Steffen et al., 2020). Yet, improving the understanding of the
Earth system does not guarantee its protection. Protecting the planet requires
the imposition of limits and safeguards in relation to the scientific knowledge
that is continuously generated, for which fundamental change in current
environmental policies and laws which have not been able to prevent social
and ecological crises is needed.
There are three main challenges that the anthropocentric, state-centric,
reductionist and linear nature of environmental laws have not been able to

DOI: 10.4324/9781003198437-16
206 Gabriel Lopez Porras
address. These consist of: (1) regulating the socio-economic and environmental
interactions among socio-ecological systems over distances (also known as
telecouplings); (2) providing the legal and institutional tools for increasing
adaptiveness; and (3) guaranteeing justice to all Earth system components
(Kotzé and Kim, 2019; Liu et al., 2013; Lopez Porras et al., 2019). Therefore,
there is a need for a legal and institutional setting that integrates the growing
knowledge generated by the Earth system-focused natural and social sciences
to constantly improve the way socio-ecological interactions are regulated,
increasing adaptiveness and ensuring justice.
Earth system law (ESL) has been proposed as an alternative for strengthening
Earth system protection by considering the complex, multi-level, multi-scale
(spatial and temporal) challenges when aiming to regulate the social and ecolo-
gical interplay through the law (Kotzé and Kim, 2019). Yet, enabling an ESL for
the Anthropocene, requires ‘constructing a coherent concept, theory, framework,
research program, and legislative program’ (Kotzé, 2019, p. 9) to facilitate its
design and enforcement. Drawn from the literature on resilience, vulnerability,
adaptive governance and socio-ecological systems, this chapter explores the
implications of a potential conceptual framework for ESL that aims to serve as
the theoretical basis for enabling an Earth system perspective in the law. This
conceptual framework (Figure 12.1) encompasses three overarching principles:
adaptiveness, system regulation and justice provision.
Exploring its implications for analysing the deficiencies and/or potential
that environmental-related laws have for protecting the Earth system compo-
nents, this chapter will analyse the Mexican water legal framework (MWLF)
through the ESL conceptual framework. The chapter will also investigate
whether the MWLF is or is not suitable for regulating distant socio-ecological
interactions, fostering local adaptive capacity and addressing human rights
violations and ecological deterioration.
Accordingly, this chapter focuses on discussing the structure of the MWLF,
its interactions with international agreements, and the socio-ecological impacts
derived from its enforcement, to finally discuss its potential for enabling an
Earth system perspective. Therefore, the question to be answered is the follow-
ing: does the conventional and state-centric MWLF have the potential to
enable an ESL approach, and if so, what are the legal and institutional tools
that could be used to move conventional state-centric environmental law
towards a paradigm of ESL?

Conceptual framework
Earth system literature (from natural and social sciences) highlights the need for
a better understanding of coupled human-environment dynamics, to effectively
guide Earth system pathways and avoid the current trends of ecological degra-
dation, by formulating suitable formal institutions and improving system man-
agement in the Anthropocene (Kotzé and Kim, 2019; Steffen et al., 2020). It has
been stated that issues of justice, adaptiveness, and unregulated socio-ecological
 Integrating the Mexican water law into ESL 207

Figure 12.1 The Earth system law conceptual framework

Source: Author. Photo copyright of NASA, sourced from https://time.com/3651601/ea
rth-new-years-day-picture/

interactions are important challenges posed by the Anthropocene (Biermann

et al., 2019). That is, to effectively regulate and govern the socio-ecological
interplay in the Anthropocene, equal attention must be paid to both envir-
onmental issues, such as climate and land-system change, and social issues,
such as economic interactions and global inequalities. Poorly regulated socio-
ecological relationships exacerbate system problems. As an illustration, in
China, the inability to limit economic activities to meet global market
demands has generated abrupt ecological shifts in the Changdang Lake (as
local livelihoods transformed from agriculture to industry, resulting in
untreated sewage) generating hydrological modification, pollution, and
negatively impacting local biodiversity (Zhang et al., 2018). Likewise, in the
United States of America, institutional inability to face climate and societal
208 Gabriel Lopez Porras
stressors has resulted in legal contestations and social clashes, undermining
water management, altering fish biological corridors, and intensifying toxic
algal blooms (Chaffin et al., 2014a; Chaffin et al., 2016).
The previous examples highlight how inappropriate regulation of human-
induced impacts and economic activities, coupled with lack of adaptiveness to
face societal and environmental stressors, have significant consequences on
socio-ecological systems in terms of justice, societal inequalities and ecologi-
cal pollution. Facing these challenges will not be possible with the current
anthropocentric, state-centric, reductionist and linear nature of environmental
legal frameworks. Current understanding of how the Earth system really
functions asks for a new legal paradigm structurally designed ‘for steering the
future trajectory of the system’ (Steffen et al., 2020, p. 61) and for sustaining
all living forms. Responding to his appeal, the ESL conceptual framework
adopted here posits three overarching principles that must be embedded
within the Earth system perspective to better navigate the Anthropocene:
adaptiveness, system regulation, and justice provision (Lopez Porras, 2020).

Adaptiveness
This refers to those processes of social change in response to shocks or stressors,
or in anticipation of potential challenges derived from environmental change or
social threats, in order to maintain system identity (its structure, feedbacks and
functions) or change it when it becomes untenable and/or endangers the sub-
sistence of other species (Burch et al., 2019; Lopez Porras et al., 2020; O’Connell
et al., 2016). There are some key elements for increasing adaptiveness, such as
knowledge generation, flexibility and cross-level collaboration. In this sense,
these processes of social change and key elements must be embedded in a sui-
table institutional setting that ensures the sustainability of human adaptiveness
and meets the implications of an ESL approach (Table 12.1). Accordingly, the
law as a source of adaptiveness must operate with the legal and institutional
principles of (1) connectivity and subsidiarity; (2) legally binding authority and
accountability; (3) financial, technical and administrative resources; and (4)
iteration and flexibility. Adaptiveness must increase human capacity to face
environmental (e.g. droughts, wildfires, pollution) and societal stressors, that is, a
condition, event, or trend that systematically affects human well-being and social
functions, undermining its adaptive capacity (e.g. corruption, human rights vio-
lations, unequal distributions of costs and benefits) (Lopez Porras et al., 2020).

System regulation
Interconnection between socio-ecological systems has been difficult to regulate
since they are constantly creating new and complex cross-scale and cross-level
dynamics. The main regulatory challenges at the Earth system level revolve
around telecouplings (the socio-economic and environmental interactions
among socio-ecological systems over distances) (Liu et al., 2013; Liu et al.,
 Integrating the Mexican water law into ESL 209
Table 12.1 A comparison of the implications of an ESL approach and the institu-
tional principles of adaptiveness
Earth system law approach Principles for adaptiveness
Recognise the complex and distant inter- Connectivity and subsidiarity promote
relationships between socio-ecological sys- the coordination of diverse laws and
tems and design global multi-scalar stakeholders to face cross-level and
interventions suitable for operating across cross-scale system interactions. Enabling
geographies and time scales an Earth system law with these princi-
ples will allow the connectivity of global
and subsidiary interventions across
local, regional, and national levels to
better regulate distant socio-ecological
interactions.
Embrace complexity and the possibility of Iterative and flexible laws and policies
non-linear systemic tipping points increase the system capacity to cope and
adapt to environmental and societal
stressors in a complex and uncertain
context, to avoid crossing socio-ecologi-
cal thresholds
Avoid state-centrism by giving legitimate Giving legally binding authority along
authority to non-state actors with the required designation of finan-
cial and administrative powers to non-
state actors (e.g., water users) will
improve water decision-making pro-
cesses and strengthen law enforcement
Allow system transformation to a new Iterative and flexible laws and policies
identity by changing its socio-economic will increase human adaptive capacity
and environmental interplay and allow the transformational adapta-
tion to change untenable socio-ecologi-
cal performances in response to
changing conditions
Notes: 1 Table 12.1 is a comparison of the implications for an ESL approach established by
Kotzé (2020), and the institutional principles of adaptiveness. 2 The principles were designed
according to the adaptive governance literature (DeCaro et al., 2017; Hill Clarvis et al., 2014;
Lopez Porras et al., 2019).

2015). Breaking down the key elements of telecoupling (systems, flows, agents,
causes, and effects) makes it possible to identify and regulate socio-economic
and environmental effects of distant and cross-level interactions. This will not
only help to overcome the scale and level issues that are hindering the ability of
laws and policies to address human-induced global change, but also will over-
come the inequalities and injustices derived from economic activities that
undermine global efforts to better navigate the Anthropocene.

Justice provision
Drawn from the concept of ecological justice, defined as ‘justice of the rela-
tionship between humans and the rest of the natural world’ (Low and
210 Gabriel Lopez Porras
Gleeson, 1998, p. 2), justice from an Earth system perspective is about letting
Earth system components (the geosphere, the biosphere, and the anthropo-
sphere) reach their functions and integrity. Research has shown that including
non-human species in the scope of justice increases the likelihood of their
preservation (Lecuyer et al., 2018); consequently, including the geosphere and
biosphere in the scope of justice increases the likelihood of ensuring nature’s
needs and rights are protected. For example, the provision of justice to fresh-
water systems to guarantee their access to water ecosystem services for their
ecological functioning and not to meet human needs. This notion of justice
encompasses both justice between humans and justice between humans and
nature, avoiding the hierarchisation between human and non-human life that
gives nature a purely instrumental value for humans, challenging the notion
that the environment exists simply to serve the market (Porto-Gonçalves and
Leff, 2015; Washington et al., 2018; Wienhues, 2017).

The Mexican water legal framework

The 1992 National Water Law, last amended in 2020, regulates the legal
provisions that assign all Mexican water resources to the national government
as owner and establishes the principles and mechanisms for water manage-
ment (OECD, 2013). This law advances fundamental principles: integrated
water management, public participation, legal security for granted water
rights, water conservation and the recognition that the basin and the aquifers
are the suitable scale for water management (Athie, 2016).
Article 9 of the National Water Law establishes the National Water Com-
mission (CONAGUA) as the government agency with technical, regulatory
and advisory competences to carry out the management, regulation, control,
and protection of national water resources (Government of Mexico, 2020).
The MWLF assigns CONAGUA a decentralised water management organi-
sation chart to facilitate intergovernmental collaboration and citizen partici-
pation in decision-making processes, by creating three water governance
levels: national, regional hydrological-administrative, and state level (Lopez
Porras et al., 2019; Murillo-Licea and Soares-Moraes, 2013). At the national
level, there is the General Directorate heading and managing the government
agency. At the regional hydrological-administrative level, there are 26 river
basin councils that aim to coordinate collaboration and participation between
the three government spheres (federal, state and municipal) and the citizens in
water decision-making. Finally, at state level, there are 20 local directorates in
the states where there are no river basin councils, to allow CONAGUA’s
water management in all Mexican federal entities. Regarding water manage-
ment and policies, the water law considers several policies and institutional
constructs for ensuring water sustainability, such as restricted water-access
areas, aquifer and watershed management programmes, technical committees
of groundwater, watershed committees, official standards, irrigation districts,
and water rights (ibid.).
 Integrating the Mexican water law into ESL 211
As noted above, on paper, the MWLF provides CONAGUA with a com-
prehensive institutional structure and a set of legal and policy instruments to
address all the national water needs and challenges. Nevertheless, in practice,
the MWLF is still very top-down, anthropocentric, not very dynamic (Lopez
Porras et al., 2019; Lopez Porras et al., 2020) and lacks overarching policy
objectives for the water sector, hindering long-term planning, political com-
mitment, and real decentralisation (Athie, 2016; OECD, 2013). In this sense,
there are three main aspects of the MWLF that play a major role in these
deficiencies and must be highlighted: (1) its organisational structure; (2) the
value that it gives to water resources; and (3) its linear vision of ecological
functioning.
First, in the internal regulation that establishes three-level governance, reg-
ulatory functions within CONAGUA’s administrative units overlap with each
other, and given the lack of clarity of who is responsible in solving some issues,
it essentially centralises the application of the law (OECD, 2013). Moreover,
regardless of the river basin councils, it has not been possible to convene or
activate public participation, and therefore, it has not been possible to demo-
cratise water management (Murillo-Licea and Soares-Moraes, 2013). Among
the reasons for this situation is the lack of inclusion of all key stakeholders
related to water management, as well as the absence of clear policies and
objectives to achieve it (Lopez Porras et al., 2019; OECD, 2013).
Second, in the MWLF, water has only a fiscal value and does not have
any worth for its water ecosystem services (Lopez Porras et al., 2018). The
National Water Law’s Article 120 establishes the penalties for breaching
the law, nevertheless, these penalties only consist of fines. The National
Water Law does not demand ecological restoration when human activities
negatively impact the ecological functioning or undermine water ecosystem
services, and neither does CONAGUA allocate money from its budget for
protection or preservation of water ecosystems (CONAGUA, 2018; Gov-
ernment of Mexico, 2020).
Finally, the MWLF grounds the water management on policies and insti-
tutional constructs embedded with a linear vision on ecological functioning
and without consideration of socio-ecological interactions (e.g., water access
in extreme drought periods). As an illustration, in the face of extreme
droughts or water depletion, granted water rights are neither reviewed, nor
adjusted for protecting freshwater systems or basic human needs. Even in
areas with restricted water access, decrees requiring new water extraction
projects ensure water sustainability and allocated rights still do not take water
ecosystem services or ecological functioning into account. Furthermore,
according to the Mexican aquifers’ water availability, published in the Mex-
ican Official Journal of the Federation in 2013, 2015, and 2018, in all these
years the annual groundwater recharge remained the same in most of the
Mexican aquifers. This means that, regardless of changing climate conditions
such as rainfall variation or droughts occurrence, according to the MWLF,
groundwater recharge has remained the same for five years. The Mexican
212 Gabriel Lopez Porras
water allocation, regulation, management, and planning approach are there-
fore based on the assumption of full ecological stability.
Regarding water management, the MWLF establishes a water rights
system, on which the government charges the right holders for water exploi-
tation. Until 2018, in Mexico, there were 122,810 registered surface water
rights and 285,409 groundwater rights (CONAGUA, 2018). Nevertheless,
according to Athie (2016), there are more than 100,000 water rights requests
still unsettled because CONAGUA has a delay of more than 20 years in the
regularisation and renewal of water rights. Notwithstanding, to verify that the
use of these rights is carried out according to the law and that there is no
illegal water access, CONAGUA has 137 accredited inspectors to verify water
rights and water exploitations in the country (CONAGUA, 2020). In this
sense, CONAGUA does not have capacity to enforce the law.
Furthermore, there are also international treaties that integrate the MWLF.
Among these international agreements are the 1944 International Treaty for
the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio
Grande and NAFTA, the North American Free Trade Agreement (US Gov-
ernment, 1994). The 1944 rivers treaty establishes that Mexico will assign
water from the Rio Grande river (in the Mexican part, it is called Rio Bravo)
to the United States, and the United States will assign water from the Color-
ado River to Mexico. The 1944 treaty specifies that water deliveries to the
United States will be carried out within a timeframe of five years and, in case
of extraordinary drought, the water that has not been delivered in the five-
year cycle will be replenished during the next cycle. The water volume that
Mexico has to deliver consists of 432 million m3 y-1, with a minimum water
delivery of 2,158.605 million m3 each five-year cycle. According to Rendón
Pimentel (2011), the 432 million m3 y-1 of water that Mexico has to deliver to
the United States is the surplus volume that still flows in the Mexican rivers
after having met the needs of the Mexican water exploitations, so delivering it
to the United States would not imply a sacrifice for Mexico. Nevertheless,
compliance with this treaty could only take place if streamflow remains the
same regardless of changing climate conditions, which is impossible; there-
fore, in times of extreme and severe droughts, water management and com-
plying with the treaty become complex. The other international treaty that
significantly shapes water management, NAFTA, signed by Canada, Mexico
and the United States, gives foreign investors the right to be treated equally
and to be protected from expropriation. When a government fails to comply
with NAFTA’s provisions, NAFTA’s Chapter 11 gives companies the right to
challenge governments directly through international courts or arbitration
processes, superseding national laws and bypassing domestic courts.(Stolten-
borg and Boelens, 2016) Yet, Chapter 11 has had some problematic side
effects. There have been many cases in which private foreign investors have
claimed payments and compensations from local governments, when the
enforcement of environmental legislation negatively impacts the profitability
of their investments, arguing that the impact is tantamount to expropriation
 Integrating the Mexican water law into ESL 213
(Kibel and Schutz, 2007). The MWLF’s design and application pose great
challenges to water management in a context of complexity and uncertainty.
However, it remains to be seen what are the implications in terms of adap-
tiveness, system regulation and justice provision.

The Earth system law conceptual framework

Understanding how the MWLF shapes human adaptiveness, regulates the rela-
tionships and effects of distant socio-economic and environmental interactions,
and provides justice, requires an analysis of the implications in the enforcement
of the legal framework. That analysis is carried out in this section.

Adaptiveness
Formal elements, such as laws, policies and standards, have the potential to
enable or hinder adaptiveness (Lopez Porras et al., 2019). Nevertheless, sci-
entists tend to overlook laws and policies as a source of adaptiveness (Gar-
mestani et al., 2019) making it difficult for policymakers to create laws to
navigate the Anthropocene. Adaptiveness refers to both the processes of social
change and the institutional setting (laws and policies) designed to facilitate
these processes. This subsection focuses on six key issues fostered by the cur-
rent MWLF that undermine adaptiveness: (1) scale mismatch; (2) water
scarcity; (3) conflicts;(4) lack of participation; (5) lack of legal tools; and (6)
ecological linearity.
Regardless of the river basin councils and local directorates, CONAGUA
has not achieved participation and collaboration (which are basic components
of adaptiveness) (Chaffin et al., 2014b). River basin councils are failed orga-
nisations that lack accountability and representativeness (ibid.) since they do
not meet the required level of water management. This mismatch between
natural resource management and the relevant ecological level is a common
issue that undermines adaptiveness (ibid.). Likewise, water scarcity under-
mines adaptiveness of natural resource-based livelihoods since it reduces
livelihood alternatives and increases conflicts over water access (Lopez Porras
et al., 2020). Nevertheless, the centralised and top-down Mexican water
management has not been able to stop water overexploitation nor strengthen
the management in water-scarce regions (Athie, 2016). In 1975, Mexico had
32 overexploited aquifers, in 1981, this number had increased to 36, in 1985,
to 80, in 1999, to 100, and, in 2013, it reached 106 (Palacios-Vélez and
Escobar-Villagrán, 2016). Nevertheless, recent research made by CONAGUA
estimates that currently there are 192 aquifers overexploited (Athie, 2016).
Increasing water overexploitation has also fostered societal conflicts,
undermining adaptiveness as they hinder the needed collaboration for social
learning and the achievement of sustainability goals (Chaffin et al., 2014b;
Chaffin et al., 2016) This has been clear, for instance, in the Rio del Carmen
watershed, in the northern state of Chihuahua, where water mismanagement
214 Gabriel Lopez Porras
and its increasing overexploitation have led to violent confrontations between
Mennonite communities and traditional Mexican farmers (Lopez Porras et al.,
2018). Given the animosities between both groups of farmers, no collaboration
has been achieved to stop and address water overexploitation in the watershed.
The 1944 rivers treaty also has been increasing pressure over northern water
resources and fostering water-related conflicts. Compliance with the treaty has
generated serious problems between farmers and CONAGUA, as farmers argue
that they have water rights and hydraulic infrastructure prior to 1944, and most
of the water that has been delivered to the United States belongs to them
(Ochoa, 2020). Farmers are uncertain about the negative effect that compliance
with the treaty may have on agriculture in the area, because CONAGUA has not
reviewed whether, with the increasing droughts, the water volume to be delivered
to the United States does not compromise farmers’ livelihoods. The treaty did
not foresee adjustments to the water volume that has to be delivered in case of
changing climate conditions. Conversely, it only states that the undelivered water
can be delivered in the next cycle, regardless of the weather uncertainties,
potential risks, and negative impacts that this may have on the northern fresh-
water systems. Recently, farmers blocked La Boquilla dam, to prevent the
floodgates from opening to deliver water to the United States, which caused
violent and mortal confrontations between farmers and the National Guard. In
the end, the treaty’s lack of adaptiveness to climate conditions is hindering any
potential collaboration in the area.
Finally, there is NAFTA. This free trade agreement opened the door to
several mining companies, which, given the large number of mining deposits,
cheap labour, low taxes, and lax regulatory frameworks, soon began mining
in Mexico. However, mining requires a vast amount of water and pollutes a
vast amount of water sources, for which reason mining companies have been
involved in a large number of social conflicts with local communities. The
socio-ecological effects of mining activities in Mexico are analysed in the next
sections. Yet, it is important to highlight that foreign mining companies have
fostered conflicts over water access, destroyed other livelihood options, and
polluted water resources, undermining local adaptive capacity (Alfie Cohen,
2015; Stoltenborg and Boelens, 2016).
As shown, MWLF does not allow water users to participate in decision-
making processes nor water management. Even with an internal structure
that should foster social participation, legal provisions have not been enough
to ensure collaboration with the water users to address water-related pro-
blems, such as pollution and depletion (Murillo-Licea and Soares-Moraes,
2013). CONAGUA has not been able to meet context-specific needs, princi-
pally due to the limitations established by the MWLF, but also because of its
lack of human resources and workload (there are more than 100,000 water
rights requests still unsettled). As a result, increasing water overexploitation
also increases conflicts over its access, undermining adaptiveness by hindering
innovation, collaboration, and social learning (Miller et al., 2010; Stringer et
al., 2006).
 Integrating the Mexican water law into ESL 215
System regulation
Socio-economic and environmental interactions between distant socio-ecolo-
gical systems have caused significant impacts at local and regional level. To
better understand these interactions, Liu et al. (2013) break down key ele-
ments of telecoupling, consisting of systems (divided into sending, receiving,
and/or spill over systems), flows (the connection between systems), agents
(they facilitate or hinder the flows and may consist of corporations or gov-
ernments), causes (they produce the telecoupling and generate the effects),
and effects (environmental or socio-economic). To improve the regulation of
these system interactions, it is necessary to understand their effects and feed-
backs to see what kind of regulations are needed. Here two telecouplings will
be analysed: (1) pecan export; and (2) mining. Because the economic benefits
of mining and pecan export are evident, this section will focus on the negative
effects that are commonly not considered and that have resulted in several
socio-ecological crises.
In Sonora, a mining company had a spill of its leachate pool, which pol-
luted three rivers. The company denied its responsibility, while this environ-
mental catastrophe left seven municipalities without water, affecting 20,048
citizens and closing 322 groundwater exploitations (Alfie Cohen, 2015). In
San Luis Potosi, an Indigenous community called the Huicholes was removed
from a sacred territory that they used for their pilgrimages called Wirikuta
(which was also a protected natural area decreed by the government) to pro-
vide the mining and environmental permits to a Canadian company in that
area (ibid.). Notwithstanding, the Huichols were never consulted in the
permit issuing processes nor during the expansion of mining projects, which is
a flagrant violation of the right to participation of Indigenous communities,
as well as of the guidelines established by the International Labour Organi-
zation’s Convention No. 169 on the rights of Indigenous people’s (ILO 1989).
Another case involving a Canadian mining company, water conflicts, and
the transgression of several human rights took place in Chihuahua, Mexico.
There, Mexican farmers protested and filed formal complaints against the
illegal water exploitation in their watershed. This included a Canadian mining
company that, according to the farmers, not only was illegally extracting
water, but was also illegally extracting minerals from their farmlands (Garcia
Hernandez and Lopez Gallo, 2016). The farmers notified CONAGUA on
several occasions about the illegal water exploitation; however, the govern-
ment remained silent. Ismael Solorio and his wife Manuela Solis stood out as
leaders in the defence of water in the watershed, for which they received sev-
eral death threats, from people that, they alleged, were low-ranking cartel
members hired by employees of the mining company (Paley, 2013; 2015).
Given this situation, they requested help and protection from the Mexican
government, who ignored their requests (Garcia Hernandez and Lopez Gallo,
2016). Unfortunately, after months of death threats, in 2012, Ismael Solorio
and his wife Manuela Solis were shot point-blank (Paley, 2015). Afterwards,
216 Gabriel Lopez Porras
given the Mexican government’s lack of response to requests to provide
security to the other water defenders, the Inter-American Commission on
Human Rights had to intervene by issuing precautionary measures to other
farmers who were defending their water resources (IACHR, 2016).
This shows how poorly regulated telecouplings exacerbate local societal and
environmental stressors, which ultimately will increase local vulnerability in the
absence of adaptiveness. Inadequate regulations of these socio-economic and
environmental dynamics leave nature and local communities defenceless, which
also concerns the principle of justice provision. Aiming to improve system reg-
ulation by breaking down the five components of telecouplings that should be
within the scope of the MWLF, as Table 12.2 shows, provides a different view
of what NAFTA and pecan production really entails.
Poorly regulated telecouplings have negative effects on domestic law enfor-
cement. The growth of pecan production is related to an increase in illegal
water access, corruption, illegal conversion from grassland to cropland, civil
unrest and thus undermining the rule of law (Athie, 2016; Lopez Porras et al.,
2018; Quintana, 2013). Likewise, NAFTA has also been hindering the enfor-
cement of environmental and water legislation in Mexico as a result of
unsuitable telecoupling regulation. Under NAFTA’s Chapter 11, the Mexican
government has been sued several times and forced to pay large amounts of
compensation to foreign investors for their loss of profits, as a result of the
cancellation or revocation of environmental, water or exploitation permits
(Stoltenborg and Boelens, 2016). NAFTA allows private companies to cir-
cumvent Mexican legislation and national courts to resolve international dis-
putes Therefore, given the threat of foreign investors claiming payment for
expropriation or non-compliance, or withdrawal of investment, the Mexican
government often favours the interests of foreign investment despite socio-
ecological crises (Alfie Cohen, 2015).
Strengthening the regulation of telecouplings is critical as the Mexican
water context is worrying. About 73 per cent of Mexican lakes, ponds,
rivers, and other water sources have some contamination (Contraloría
Social, 2017). Likewise, uncontrolled pecan agriculture has led to the
depletion of fossil water and surface water sources, a loss of water eco-
system services, grassland systems, and increasing desertification (Lopez
Porras et al., 2018; Quintana, 2013).

Justice provision
To date, environmental justice has not been successful in protecting the Earth
and all human and non-human species that inhabit it, mainly because it has
been focused on achieving justice only between humans with regard to nature,
for instance, through the equal distribution of environmental harms (Parris et
al., 2014). Nevertheless, justice provision should encompass both justice
within the anthroposphere and justice between the anthroposphere and the
other components of the Earth system.
 Integrating the Mexican water law into ESL 217
Table 12.2 Pecan production and mining activity in Mexico analysed through the five
major components of telecoupling
Telecoupling Pecan production Mining
components
Systems Sending Mexico Mexico
Receiving Europe and the US Australia, Canada,
Japan and the US
Spillover Unknown countries Canada and the US
Flows Materials/energy Pecans, money, agri- Minerals, machinery,
cultural technologies, money, and fuels in
and fuels in transportation
transportation
Information Prices, financial trans- Prices, financial
actions, trade agree- transactions, and
ments, and trade agreements
agricultural techniques
Agents Farmers and Local labour, govern-
governments ments, Indigenous
communities, other
water users and
mining companies
Causes Economic Growing pecan Increase global trade,
demand cheap labour, and low
taxes
Political Increase export market Pursue foreign
investment
Technological Agricultural and irri- Mining technologies
gation technologies
Environmental Differences in climate Mineral deposits
conditions for pecan
production
Cultural Increasing preferences Preference for jew-
for pecans ellery and electronic
products
Effects Environmental Water over- Water over-
exploitation, water exploitation, natural
pollution, and ende- resource depletion,
mic vegetation loss water pollution,
endemic vegetation
loss
Socio-economic/political Farmers profit, eco- Profit from local
nomic prosperity, labour and mining
social clashes, destruc- companies, economic
tion of hydraulic prosperity, human
infrastructure, breach rights violation, ille-
of law gal dispossession,
breach of law
218 Gabriel Lopez Porras
In Mexico, injustices start with water use and distribution. The main water
uses are hydroelectric (183,066 hm3) and agricultural (66,799 hm3) (CON-
AGUA, 2018). However, the water use for ecological conservation which aims
to protect the freshwater systems and ecological conditions of the area, only
has a volume of 9.46 hm3 (ibid.). In other words, of the 270,917 hm3 of water
concessions in Mexico, 67.57 per cent is for hydroelectric use (which is not
consumptive), 24.65 per cent is for agricultural use (consumptive), and 0.00
per cent is for ecological conservation. This shows that water does not have
an ecological value in its management (which is a direct consequence of the
purely fiscal value that the MWLF gives to water resources), undermining the
protection of water resources and its ecosystem services. To overcome this
injustice, Mexican water allocation must recognise nature’s ‘claim to a fair
share of the environmental resources which all life-forms need to survive and
to flourish’ (Baxter, 2005, p. 4).
Denying freshwater systems full access to the water ecosystem services
necessary to continue their ecological functioning is an injustice that has a
cascading effect on plant and animal species. In the northern part of the
Chihuahuan desert, where pecan agriculture has increased significantly,
grassland loss (given its conversion to croplands and desert shrub) has led to
the near-extinction of the prairie dog, a species on which around 200 species
of mammals, native and migratory birds, reptiles, and insects depend directly
or indirectly (PMARP, 2012). Of course, these injustices are not considered in
pecan telecouplings.
On the other hand, injustices within the anthroposphere can be better high-
lighted with mining case studies, where mining companies have used NAFTA’s
Chapter 11 to undermine water and environmental law enforcement, leading to
several human rights violations. In Mexico, from 2004 to 2016, more than 100
water-related conflicts were registered as a result of the illegal dispossession of
Indigenous water and lands and them being granted to the extractive industry
(Martínez Ruiz et al., 2017). Yet, this only considers conflicts where Indigenous
communities were involved and not conflicts like the Solorio family case. As an
illustration, a case reported by Stoltenborg and Boelens (2016) highlighted the
injustices against local communities, questioning the legitimacy in the design of
national and NAFTA’s regulations as they favour foreign investment. In this case
study, another Canadian mining company bypassed water and environmental
regulations, and started mining in spite of a restricted access decree to avoid
water overexploitation, affecting the whole municipality of Cerro de San Pedro
(Stoltenborg and Boelens, 2016). Another case took place in Sonora, where an
Indigenous community called the Yaquis clashed with the government and sev-
eral business groups because the Mexican government, by incurring, in contempt
of courts, illegal processes, and human rights violations, it stripped the Yaquis of
their sacred river to use it for other purposes (Moreno Vazquez, 2014).
From an anthropogenic (e.g., the Huicholes and Yaquis case) and an eco-
centric (e.g., the loss of water ecosystem services needed for ecological func-
tioning) viewpoint, the justice obtained from the MWLF is neither
 Integrating the Mexican water law into ESL 219
distributive nor representational. It is not distributive since it does not pursue
the fair distribution of natural resources (e.g. water allocation for ecological
conservation) and it is not representational since the needs of human and
non-human species are not represented in resource allocation and justice
delivery processes (Hillman, 2006; Kortetmäki, 2016).

Moving towards Earth system law

In light of the ESL conceptual framework, the conventional and state-centric
MWLF is not suited to avoid and face socio-ecological problems. The
MWLF should embrace subsidiarity and connectivity so authorities and net-
works across different levels can reach agreement, cooperate, and collaborate
to design policies at the most suitable level. This will allow local authorities
and stakeholders to adapt better and/or respond to distant socio-ecological
interactions, by better matching the level where the effect has its impact with
the appropriate level of governance response (Garmestani et al., 2019; Hill
Clarvis et al., 2014). At the same time, regardless of the creation of 26 river
basin councils and 20 local directorates, Mexican water management is still
very centralised and has not achieved any true coordination and collaboration
with local authorities. The starting point for a transformation towards ESL
(by strengthening local adaptiveness) is the inclusion of other key stake-
holders (e.g., organised water users) in implementation and decision-making
processes by endowing them with legitimacy and authority. This will help to
redesign the pure fiscal value that water resources have in the National Water
Law and that has been leading to water degradation, by allowing non-state
actors to participate in national water planning and the design of water poli-
cies. In this way, national and international legal instruments designed to
promote economic development at the expense of ecological functioning and
other human rights (e.g. water access or social protection) will need to adjust
to local needs. In practice, this should be done by giving stakeholders the
legally binding authority and accountability (which would strengthen con-
nectivity and subsidiarity) along with the designation of financial and
administrative powers to enable the governance at the local level.
Moreover, MWLF’s transformation towards ESL requires the integration of
iterative and flexible principles in law enforcement processes to adjust laws and
policies until local systems are better prepared to face distant interconnections.
Currently, the MWLF does not review and adjust the water rights in spite of
droughts or water overexploitation, nor monitor the groundwater annual
recharge. Iterative and flexible policies will strengthen water management by
allowing water users and government officials to adjust water access against
non-linear dynamics and high-water consumption activities.
System regulation cannot be a blueprint, because, as shown in Table 12.2,
the negative effects of telecouplings are different across Mexico. Current
understanding of how complexity and uncertainty affect and shape socio-
ecological systems presuppose the unpredictability of telecouplings’ negative
220 Gabriel Lopez Porras
impacts. Being aware of non-linear dynamics, biomass dynamics, and the
heterogeneity of spatial patterns is key when regulating socio-economic and
environmental distant and cross-level interactions (Levin et al., 2013, p. 111).
Yet, since telecouplings are context-specific, so should be their regulations, for
which iterative, flexible and locally appropriate laws and policies are needed.
This will potentially increase the effectiveness of system regulation.
By increasing adaptiveness and strengthening system regulation, local water
users (and other natural resource-based beneficiaries) can protect and defend
their human rights (e.g., to water access) in the face of global economic
dynamics. Yet, a transformation towards ESL still requires integrating an
Earth system perspective of justice. Accordingly, the MWLF needs to allocate
water to freshwater systems for the sole purpose of conserving their water
ecosystem services and allowing their ecological functioning.
One potential transformative pathway that can be followed to enable the
ESL conceptual framework is by leveraging current water policies and insti-
tutional constructs, such as watershed committees and watershed manage-
ment programmes. Watershed committees are collegial bodies integrated by
state and non-state actors, whose objective is to develop policies and man-
agement programmes to improve water management and protect the ecologi-
cal functioning of the watershed or aquifer (Government of Mexico, 2020).
These committees are not subordinate to CONAGUA, they can prevent con-
flicts arising from inadequate water allocation, establish local provisions for
water management, strengthen legal compliance, and can promote and favour
the recognition of nature’s right to flourish in the areas they are established.
Accordingly, these committees embody the principles of connectivity and
subsidiarity as well as legally binding authority and accountability needed to
limit telecouplings or adapt to them. Moreover, functions, structures and
objectives of the committees can be designed and adjusted according to the
needs of the aquifers or watershed within their circumscription (CONAGUA,
2010). This allows the integration of knowledge generation processes and
continuous restructuring of their strategies when the results are not as desired
and justice has not been achieved; comprising the principles of iteration and
flexibility. Likewise, according to the National Water Law, when citizens have
organised to support water management through these committees, the gov-
ernment must facilitate the participation and establishment of those commit-
tees by providing the needed support and mechanisms and recognising them
as auxiliary bodies in water management (Government of Mexico, 2020).
This incorporates the principle of financial, technical and administrative
resources. In summary, from a bottom-up perspective, these water committees
can be leveraged to create an institutional setting for increasing adaptiveness,
strengthening system regulation, and provide Earth system justice. Transfor-
mation towards ESL requires an organised civil society taking a more active
role in decision-making processes. This will help a direct integration of an
ESL perspective into the national agenda. On this, it has been established that
stakeholder engagement is a key element for driving an institutional change
 Integrating the Mexican water law into ESL 221
and strengthening environmental governance through inclusiveness, policy
coherence, capacity building, law enforcement, and accountability (Akh-
mouch and Clavreul, 2016; Lopez Porras et al., 2018).

Conclusion
Anthropocentric, state-centric, reductionist and linear water and environ-
mental laws have failed to regulate the complex socio-ecological interplay,
undermining their potential to stop environmental degradation or achieve
sustainability. Given the increasing and worrisome environmental degradation
derived from human actions, it can be argued that there is an environmental
failure in the rule of law. Coupled with the lack of regulation of telecouplings,
domestic laws have not been able to face these Earth system dynamics. In
Mexico, the MWLF is far from meeting its functional aims, such as regulat-
ing the exploitation of water resources to achieve the preservation of its
quantity and quality and its integral sustainable development. In the light of
the current MWLF and its inability to face complexity and uncertainty, water
depletion, pollution, and human rights violation are commonplace in Mexico.
ESL has been proposed as an alternative in order to migrate from conven-
tional and state-centric environmental legislation to a legal framework that
embraces complexity, and non-linearity along with the cross-level and cross-
scale challenges when regulating coupled socio-ecological systems. Drawing
on a potential ESL conceptual framework, this chapter analyses the MWLF,
in terms of adaptiveness, system regulation and justice provision. In this
sense, it has been discussed that the institutional principles of (1) connectivity
and subsidiarity, (2) legally binding authority and accountability, (3) financial,
technical and administrative resources and (4) iteration and flexibility in
water policies, standards and programmes, are key to strengthening system
regulation and seeking justice provision for Earth system components. This
could be achieved through the establishment of watershed committees.
Accordingly, integrating the MWLF into the ESL perspective would poten-
tially have significant impacts on human well-being, the ecological function-
ing, and the protection of all living forms.

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Zhang, K., Yang, X., Kattel, G., Lin, Q. and Shen, J. 2018. Freshwater lake ecosystem
shift caused by social-economic transitions in Yangtze River Basin over the past
century. Scientific Reports, 8.
13 A framework of Earth system justice in
the Earth system’s legal context
Maciej Nyka

Introduction
It seems quite natural to introduce a legal regulatory perspective into the
modern concepts of environmental research, focusing on systems, which
reflect the complexities of sustainability and global environmental change.
Despite the intensive conceptual and analytical research on Earth systems
governance (ESG) that has already been conducted for some years, law seems
not to have gained a similar amount of attention in research, or rather, until
recently at a later date (Kotzé and Kim, 2019). This is especially true in the
situation in which the concept of ESG has an inclusive character and
accommodates multiple scientific disciplines (Biermann, 2007). One of the
possible explanations for such a situation is the negative evaluation of existing
legal mechanisms in the context of their potential applicability to the new,
rising and challenging approach presented by ESG. Some authors observe
this phenomenon and call it the Anthropocene gap (Galaz, 2014). The
incompatibility of contemporary law to regulate modern environmental chal-
lenges is especially true in dealing with the problem of uncertainty with
respect to the functioning of ecosystems due to their complexity and func-
tional inter- and intraspecific dependencies (Shearing, 2015). The centuries of
the functioning of the sectoral approach stemming from Cartesian divisions
leave contemporary environmental law powerless in a confrontation with
modern global environmental challenges (Biermann et al., 2012).
The criticism of contemporary environmental law from the perspective of
Earth system governance touches upon the very core of the current interna-
tional legal system (see also Chapter 3 by Bleby and Chapter 8 by Warner in
this volume). It is especially surprising if taking into account international
law’s aspirations to be a ‘discipline of crisis’ (Charlesworth, 2002, p. 377). The
discipline of crisis in the opinion of many researchers fails to deal with the
modern regulatory challenges of the Anthropocene (Kotzé, 2019). Critical
studies focus on the fundamentals of international environmental law. One of
those areas is institutional structure (Widłak, 2019). The creation and devel-
opment of international economic law in the 1970s, 1980s and 1990s stopped
a half-step short of the creation of an institution which would be responsible

DOI: 10.4324/9781003198437-17
 A framework of Earth system justice 227
for coordinating the implementation of international environmental law at the
global level. The United Nations Environmental Programme lacks power, and
in order to fulfil its duties, it needs to be deeply changed in the field, its
competences, agenda and working procedures (Biermann et al., 2012). The
need for institutional change goes along with support for structural changes
in the way environmental legislation is prepared and implemented. Current
international environmental law fails to prevent humans from reaching and
breaching environmental boundaries (Rockström et al., 2009). In order to get
common support for environmental legal initiatives, these proposals are too
pragmatic and conserve the current socioeconomic mechanisms, which fail in
providing humanity with ‘safe and just operating spaces’ (Biermann et al.,
2012, p. 1306).
The above-mentioned shortcoming comes from another huge problem of
international environmental law – its state-centrism. The traditional approach
equips states, and only states, with full legitimacy and authority in interna-
tional legal relations. International organisations, also commonly identified as
legal subjects, only reflect the competencies of states. This traditional
approach does not reflect contemporary divisions of power in international
relations (e.g., by not including multinational corporations) or even the object
which currently seems to play the most important role – protection of human
rights (including environmental rights). Non-state actors have limited options
not only for participation in the international environmental law-making
process, compliance verification procedures and dispute resolution processes
but also for observation and presentation of their points of view due to the
lack of transparency (Dupuy, 2005). Lack of proper recognition of interna-
tional companies, individuals and other non-state actors leaves the most
important drivers of the process of globalisation outside the scope of inter-
national legal regulation (Ietto-Gillies, 2003; Kleinert, 2004).
Since Max Weber’s ground-breaking sociological research (Weber, 1921),
law is now considered an unavoidable element of any socio-political system
and also forms the basis of ESG (Kotzé, 2012; 2014). The Anthropocene
changes the law’s perception and also the perceptions on law. The aim of this
change in the philosophy and practice of legal regulation is the creation of
mutually supportive and reinforcing relations between Earth system science
and ESG (United Nations General Assembly, 2018). Earth system law (ESL)
is a modern notion of law, closely related to ESG, which tries to embrace the
complexities of global environmental change within the language of legal
norms. The ESL concept calls for a deep reform of contemporary interna-
tional law and policy. ESL is a concept which is both descriptive and pre-
scriptive (Kotzé and Kim, 2019; Stephens, 2017). On one hand, it tries to
reflect the complexity of socioecological interactions of the Anthropocene; on
the other hand, it is more responsive to the challenges and risks which are the
consequence of those interactions.
The construction of a new ESL cannot be based purely on negation and
critique of an outdated legal regime. The core element of the legitimacy of
228 Maciej Nyka
ESL is the ability to better fulfil the core function of law, which is providing
tools for reaching just and equitable resolutions of conflicts and overlaps
appearing in the social sphere. At the conceptual level, systemic identification
of a new field of legal research and practice which aims at supporting the
process of ESG requires articulation of the axiological basis of this system.
For lawyers as well as representatives of other fields of research, most lacking
seems to be the concept of justice. Environmental justice is not only con-
nected with environmental protection in a narrow sense but also with treating
the environment on a par with social development and historical justice
(Ciechanowicz-McLean and Nyka, 2016). The concept of environmental jus-
tice is connected with social activism, participatory concepts and identifica-
tion of the environment as a common good (Bosselmann and Grinlinton,
2002). ESL builds on the concept of environmental justice, while adapting it
to its own characteristics. While for many, the environmental law concept
remains a concept used primarily at the micro scale, ESL tries to create a safe
and just operating space on the macro global scale (Dawson et al., 2018).
The universalism of the idea of justice is manifested, inter alia, by the fact
that it is referred to by both jurists who seek the aim of regulation and non-
legal researchers, including economists and ecologists, according to the maxim:
ius esta ars boni et aequi. It is usually presented as a kind of template to which
the current situation is compared, mainly in order to determine how much the
actual state of affairs differs from the ideal of justice. This is followed by the
formulation of a postulate of systemic or individual changes (Suttle, 2018). In
law, the idea of justice spreads in all legal disciplines, not excluding interna-
tional law. In research on international law, as well as in the making of it, the
development of the cosmopolitan justice concept can be observed today. Its
foundations appeared as early as in Roman ius gentium and it was (later)
developed by Hugo Grotius and his followers (cf. Rawls, 2001).

New perspective on environmental justice – towards Earth system justice

The concept of environmental justice in legal writings is based on the criticism of
the theory of environmental ethics and the theory of social justice. As Klaus
Bosselmann points out, the achievements of the theory of environmental ethics
ignore the issues of social justice, while the theory of social justice does not fully
notice the influence of the environment on its implementation (Bosselmann,
1999). The theory of ecological justice currently is focused on three fundamental
issues. The first is the contemporary theories of environmental justice and
environmental ethics. The second area is the analysis of various manifestations
of distributive justice in the field related to the natural environment. The third
area is the application of contemporary theories of justice, as well as the dis-
tribution of goods, in environmental protection issues (ibid.).
The field of analysis of the concept of justice in the environmental context
has broadened over the years. At its beginning, environmental justice was
primarily focused on distributional elements and trade-offs connected with the
 A framework of Earth system justice 229
position of minorities or other groups which suffered from various forms of
exclusion. The trade-offs between different services affect different human
populations differently, and questions of equity and efficiency inevitably arise
(Ruhl et al., 2007). Discrimination in access to environmental services as well
as the political and economic decisions as to who will suffer from the lack of
services are still at the heart of analysis of environmental justice scholars. This
perspective can be called the distributive perspective on environmental justice
(Walker, 2012). Soon after the introduction of environmental justice as an
object of interest of not only philosophical and sociological analysis but also
economic and legal analysis, an additional dimension was added; namely,
the research started to include the procedural dimension of environmental
justice. This field of analysis focuses on creating an equitable institutional
and procedural framework in which decisions on ecosystem services, their
accessibility and their sustainable use are to be made. Most recently, the
field of analysis has been additionally broadened by the introduction of the
perspective of recognitive justice.

Distributive dimension of Earth system justice

Environmental justice is one of the elements of sustainable development,
which refers to meeting the basic needs of all contemporary people without
diminishing the development opportunities for future generations (United
Nations, 1987). It is sometimes defined as social justice between con-
temporary societies and states, including an equal share in the benefits of the
resources left by previous generations without exposing any community to
disproportionate environmental threats or burdens (Vojnovic, 1995). In view
of the fact that environmental justice focuses on the functioning of indivi-
duals, it operates in international law as a specific directive related to the
method of distribution of both economic and environmental goods and bur-
dens (Brown Weiss, 1989). It is worth noting that the purpose of distribution
performed within the framework of justice is to guarantee a specific social,
economic or environmental minimum postulated by human rights (Shelton,
2007). In order to achieve that goal, intragenerational justice has to apply
instruments referring to distributive justice.
Including distributional aspects, international environmental law (Franck,
1995) provides a basis for an analysis from the point of view of issues of jus-
tice and equity. One of the most important areas in which the functioning of
international economic law may raise the issue of justice and equity is the
area of environmental protection and development law in the broad sense
(Franck, 1995). The substantive legal aspects of environmental justice in
international environmental law confirm the scepticism and awareness of the
limitations of positive law which can be tracked back to Aristotle’s thoughts.
These limitations seem to result not only from the very nature of positive law
but also from a kind of egoism of states that will not accept the allocation of
resources in a situation in which the differences in access to resources between
230 Maciej Nyka
states are minimal. This regularity is part of Rawls’ maximin solution rule
(Rawls, 2009). According to Rawls, it is possible to choose only two principles
of justice when acting on the basis of the maximin solution rule; that is, the
rule of maximum benefit and minimum loss, minimising losses while max-
imising benefits (the best alternative of the collection of the least beneficial
alternatives should be chosen, i.e., the one for which the worst result is better
than the worst results of other available alternatives). In the context of interest
here, Rawls’ second principle of justice is of paramount importance, namely
that all socioeconomic inequalities should be established in such a way that
they are both: (1) most beneficial to the least advantaged, respecting the
principle of just savings for future generations (the difference principle); and
(2) associated with the posts and positions available to everyone under con-
ditions of fair equality of opportunity. Inequality of opportunity must increase
the chances of those who have less opportunity (ibid.).
The postulate to guarantee justice in the context of environmental protec-
tion was first formulated in the Stockholm Declaration of the United Nations
Conference on the Human Environment (1972). Principle 1 of the declaration
states that:

Man has the fundamental right to freedom, equality and adequate con-
ditions of life, in an environment of a quality that permits a life of dignity
and well-being, and he bears a solemn responsibility to protect and
improve the environment for present and future generations. In this
respect, policies promoting or perpetuating apartheid, racial segregation,
discrimination, colonial and other forms of oppression and foreign dom-
ination stand condemned and must be eliminated.
(United Nations 1972)

Thus, Principle 1 provides an important basis for claims in the context of the
implementation of the idea of intragenerational justice, both in terms of
environmental protection as well as social and economic issues.
Social, economic and racial problems often overlap with growing environ-
mental risks. The environmental justice movement is today one of many
ecology movements. However, it has distinctive features, such as combining
economic issues with environmental discrimination, aiming at the rights of
entire communities rather than individuals and finally, referring to environ-
mental racism and demands relating to historical justice. It focuses on the
efforts to combat discrimination in access to environmental resources based
on social class, race, ethnicity or nationality, living in rural/urban areas, age
and gender.
International efforts to ensure intragenerational justice are to large extent
aimed at mitigating the dispute between the rich North and the poor South.
This dispute has been going on for several decades and is one of the most
important problems in the development of international environmental law.
The first grounds of conflict are the historical considerations, especially
 A framework of Earth system justice 231
colonial times and slavery, which provide a specific moral basis for claims by
the countries of the South. Another area of conflict are the benefits of making
use of natural resources located in the poor countries of the South. Those
countries claim that they have not been granted a fair share in the economic
benefits resulting from their exploitation. Moreover, there is evidence of
overexploitation of natural resources which further reduces the quality of life
of the Southern inhabitants (Sands et al., 2013). The third area of dispute is
shaping of the global economic order which, according to the countries of the
South, cannot resolve the global economic, societal and social inequalities
(Pogge, 2001) and sometimes even perpetuates them.
The implementation of intragenerational justice entails the need for highly
developed countries to undertake aid measures in three directions. The first
course of action is the participation in environmental protection costs borne
by undeveloped countries in the common interest. Many international envir-
onmental agreements provide for the mechanisms of financial support related
to the implementation of environmental protection tasks by the poorest
countries. The second course of action includes greater access for the poorest
countries to benefits resulting from the exploitation of natural resources. The
third course of action includes financial transfers aimed at facilitating the
adaptation of underdeveloped countries to the deteriorating quality of the
natural environment (Brown Weiss, 1989), which is not necessarily their fault.
The basic reasons highly developed countries provide assistance to under-
developed countries is that, without state support, the countries would be
unable to implement the concept of sustainable development (Des Jardins,
1997). In particular, the failure to ensure an adequate share in ecosystem
benefits resulting from the location and exploitation of natural resources in
their territories poses a serious threat to the environment and, consequently,
to intra- and intergenerational justice (Okrent, 1999). The political con-
sequence of the absence of adequate resources is the potential exclusion of
that group of countries from the international initiatives aimed at environ-
mental protection and, consequently, an increase in environmental pressure
on the development of highly developed countries. Without external assis-
tance, the countries concerned will not be able to fulfil their obligations in the
area of intragenerational justice. According to Brown Weiss (1989), the jus-
tice-based justification of aid measures is that undeveloped countries, and the
societies living in those countries, experience an absence of a just share in the
resources left by previous generations. Therefore, such intragenerational
injustice is contrary to the requirements of sustainable development.
Developing countries raise the issue of uneven distribution of environ-
mental costs related to exporting pollution to developing countries which do
not share the benefits of those pollution-generating activities (Harper and
Rajan, 2004; Shelton, 2007). Accusations of plundering natural resources, first
by the colonial powers and currently by international corporations, are raised
by underdeveloped and developing countries (Harper and Rajan, 2004). The
effects of global threats, such as climate change, are particularly severe for
232 Maciej Nyka
undeveloped countries. Poor countries which do not have sufficiently devel-
oped economies or industries are only marginally responsible for climate
change but often bear the majority of the negative consequences of such
changes. This is due to the poor ability of those countries’ populations to
adapt to changing climatic conditions (Sands et al., 2013).
In the environmental justice concept the intragenerational perspective on
redistribution is supplemented by the intergenerational one. ESL also has to
include the perspective of future generations within its regulatory framework.
The references to intragenerational justice are already reflected in international
legislation. They can be seen in a number of international environmental law
instruments which contain various norms that establish instruments of economic
cooperation. They can be found in the United Nations Framework Convention
on Climate Change (United Nations, 1992c) as well as in the Paris Agreement
(United Nations, 2015) and in the Kyoto Protocol (United Nations, 1997). They
are reflected in the international system of the protection of the seabed, estab-
lished by the United Nations Convention on the Law of the Sea (United
Nations, 1982). They are present in a variety of regional and global conventions
which seem to identify the link between the economic conditions in which
societies live and their determination to deal with environmental problems.
What is interesting is that this relation can also be identified in interna-
tional economic law instruments, which often refer to sustainability and
environmental protection when creating the framework of international
trade. At the global level, the agreement establishing the World Trade
Organization (World Trade Organization, 1994) refers to sustainable
development in its preamble. Numerous bilateral and plurilateral trade
agreements introduce environmental or sustainability clauses.
Arguments relating to intragenerational justice can also be identified in the
case law of international courts. In that context, it is noteworthy to refer to
Tunisia v. Libya – the case decided by the International Court of Justice (ICJ).
The Court of Justice found the arguments based on access to natural resources
and the demographic pressure to use them, in addition to other arguments,
relevant for making a decision (International Court of Justice, 1982; McGinley,
1985). Similar factors were taken into account in El Salvador v. Honduras
(International Court of Justice, 1992; Philipp, 2008). In these cases, the Court
ruled on the basis of the principles of equity, even though the parties had not
made use of Article 38 (2) of the ICJ Statute (1945) which creates the only
direct possibility of doing so. It is clear that the court wishes to ensure the
broadest possible access to natural resources in the intragenerational context.
Thus, the arguments referring to intragenerational justice become not only a
smart theoretical idea but also the basis for making decisions in complicated
cross-border disputes.
One of the more important dilemmas related to the intergenerational
aspects of environmental justice is the answer to the question of whether the
present generation can have obligations towards future generations, that is,
towards an impersonal and potential entity. The question also needs to arise
 A framework of Earth system justice 233
as to whether those obligations correspond to rights on the part of future
generations. The answer to the first question seems to be quite easy, especially
taking into account environmental protection norms. In the area of interna-
tional environmental law, the effects of both lawful and unlawful actions are
often distant in time. Therefore, it is a common practice to impose certain
restrictions, obligations towards future generations, on the contemporary
generation. The very idea of sustainable development, of which an important
element is the principle of intergenerational solidarity, is based on that con-
cept. The presence of a legal interest in future generations in inheriting the
environment in a condition that leaves to them, as Brown Weiss (1989) puts it,
the opportunity to choose options determines the possibility of imposing an
obligation on current generations in that respect (De-Shalit, 1995). It can also
be seen that there is a significant difference between the existence of future
generations and the existence of the objects devoid of autotelic value – a
category that determines the possibility of the existence of a legal interest
(Raz, 1986).
A wide range of opinions can be found in legal writings, from views that
completely reject any moral or legal links between the present generation and
future ones (Baier, 1981) through to theories that admit that there can be such
rights but indicate numerous conceptual or practical problems (Visser t’ Hooft,
2010) to innovative views which confirm the existence of the rights of future
generations (Brown Weiss, 1990). Kelsen’s pure theory of law provides that there
can be duties, even though there are no rights reflecting them. The examples of
such duties, including environmental protection ones, refer to duties such as the
duty to protect animals or plants (Kelsen, 1967). Similarly, absolute duties exist
independently of corresponding rights (Austin, 1832). It is, therefore, clear that
establishing that there is a right holder is not a sine qua non condition for the
existence of a duty. On the other hand, this approach weakens to some degree
the position of future generations in taking redistributive decisions in the context
of intergenerational justice (Brown Weiss, 1990).
Recognising that there are duties imposed on the present generation with-
out unambiguously confirming the rights of future generations is undoubtedly
a less controversial solution. On the other hand, it is worth considering whe-
ther the rights of future generations are the same category of subjective rights
to which Austin (1832) and Kelsen (1967) refer. Intergenerational rights, or
the rights of humankind as a whole, are slightly different from the subjective
rights of individuals. They are called planetary rights or rights of humanity as
a whole (Brown Weiss, 1990). Thus, they refer to the collective nature of
solidarity in human rights.
Intragenerational and intergenerational aspects of distributive justice in the
environmental field create challenges for any newly formed system of global
environmental governance. Accepting the existence of rights of future persons
to the environment is especially difficult considering drawbacks in the field of
protection of environmental rights of contemporary people. However, it seems
that identification of legal rights of future generations can prove to be an
234 Maciej Nyka
effective standard of protection of the rights of contemporary people. In other
words, that which is kept in (environmental) trust for future generations is
available today – if it is used sustainably.

Procedural dimension of Earth system justice

The shift of the focus of the legislature from substantive elements towards
procedures seems to reflect modern developments in international environ-
mental law. ESL also has to follow this trend. Procedural justice is a normative
judgement on the fairness of the process of decision-making (Hollander-
Blumhoff, 2017). The key focus areas in the analysis of the procedural aspects
of environmental justice are: the influence of power and politics on decisions
about ecosystem services, formal and informal interactions among stakeholders
and decision-makers (Martin et al., 2015), informational aspects of this deci-
sion-making process, who is represented and which values influence the deci-
sion-making process (Dawson et al., 2018). As the answer to the calls for the
introduction of procedural dimensions of environmental justice, legal doctrine
as well as legislation started to work on the subjects concerning proper and
equitable access to environmental justice as well as the transparency of proce-
dures in which environmental decisions are made. Procedures also have had to
be created to enable participation in environmental decision-making processes
in order to eliminate the inequalities in powers and the different abilities of
stakeholders to assert and oppose particular claims (Dawson et al., 2017). This
participatory requirement seems to be obvious for the introduction of admin-
istrative procedures, as the answer to the above-mentioned postulates, in addi-
tion to being subject to judicial control concerning the prevention of potential
abuses or mistakes made in administrative decisions.
Public participation encompasses various forms of involvement of members
of the public in agenda-setting, decision-making and policy-forming activities
of institutions responsible for policy development (Rowe and Frewer, 2005).
The ESL concept calls for a new understanding of organisational norms and
collective action initiatives as elements of this new, complex socio-ecological
system (Kotzé, 2019). Participatory rights are well recognised in con-
temporary international environmental law and were introduced by the Rio
de Janeiro Principle 10 (United Nations, 1992a), which confirmed the truth
identified by nature researchers in the beginning of the twentieth century that
public participation is an unavoidable element of a proper environmental
protection regime. The statement in Principle 10 that environmental issues are
best handled with the participation of all concerned citizens at the relevant
level still remains an inspiration for policymakers, courts and environmental
activists to frame and use the concept in order to achieve more just solutions
in the field of environmental protection. Principle 10 also shows that the
procedural aspects of environmental protection are multidimensional and
cover aspects such as access to information, public participation in decision-
making processes and effective administrative and judicial proceedings. Those
 A framework of Earth system justice 235
elements form a logically and functionally related set of procedural environ-
mental rights identified by international, regional and national legal systems.
The different constellations between those three aspects appear in multiple
environmental contexts and similarly in different socio-ecological processes
which trigger public engagement in the various economic, political and cul-
tural conditions of the functioning of different states (Ebbesson, 2018).
Interestingly, although participatory international environmental rights were
identified late by international law, since they were confirmed by Principle 10 of
the Rio de Janeiro Declaration, they have been repeatedly confirmed in
numerous multilateral environmental treaties of global reach, as well as in
regional environmental treaties (Ebbesson, 2015). Through this process, some
shortcomings in the application of participatory rights coming from the soft
law legal instrument of the Rio Declaration have been corrected. However, the
main role in ensuring the effectiveness of procedural environmental rights still
remains with the national legal order and the ability of states to treat partici-
patory rights as an instrument of support in reaching equitable environmental
solutions rather than an obstacle in the investment process.
This picture of the functioning of participatory environmental rights leaves
much to be desired. Critiques are often related to the fact that identification
and support of participatory environmental rights do not go hand-in-hand
with substantive environmental rights (Ciechanowicz-McLean and Nyka,
2012). Questions are being raised as to whether or not procedural environ-
mental rights imply a modification of the substantive ends of government
(Hayward, 2004) or whether a relation of dependence is being formulated in
which the effectiveness of any substantive environmental rights presupposes
the establishment of a wide range of environmental procedural rights (Eck-
ersley, 1996). Beyond doubt, ESL in its development will have to focus on a
better identification of substantive environmental rights and the problems
connected with global distribution of environmental benefits and burdens.
However, the importance of public participatory rights, even in the context of
underdevelopment of substantive environmental rights, is still critical. The
main reasons in support of this statement are that public participatory rights
provide environmental information, participation and a legitimate means for
contestation which, while surely not an end in themselves, provide a means of
enhancing the reflexive learning capacity of both civil societies and govern-
ments (Eckersley, 2004).
Another element identified as lacking in contemporary participatory rights
is the reference to past and present grievances which have their roots in
colonial history (Gellers and Jeffords, 2015). Underrepresentation of the
interests of those affected by colonial history can be observed at both the
local and global scale (Gonzalez, 2015). It is a source of the fatal conflict
between the northern and southern parts of the world which impedes the
development of both environmental and economic law at the global level, as
well as the contestation of local actions undertaken by environmentalists, for
example, in the field of protection of Amazonian forests. Here the problem of
236 Maciej Nyka
corrective justice and redistribution seems to play an important role in
designing future solutions. The UN Millennium Declaration (United Nations,
2000) raised this problem by stating that global challenges must be managed
in a way that distributes the costs and burdens fairly in accordance with basic
principles of equity and social justice. Those who suffer the most or who
benefit least deserve help from those who benefit most.
Overcoming the above-mentioned shortcomings of public participatory
processes is crucial, due to the fact that almost 30 years after the identifica-
tion of public participatory rights by international law and at least three times
as long a period of the functioning of those rights in national legal orders,
public involvement has become the basis of many other modern instruments
used in environmental protection. It is critical to all concepts connected with
the process of social learning and beyond any doubt involves two-way infor-
mation flows, such as adaptive management of the environment or the eco-
system approach. It also constitutes one of the fundamentals of the Earth
system approach which involves studies on various components of the Earth
system in combination with maps, inter-linkages and feedback (Lövbrand et
al., 2009). There is general agreement that the implementation of the ecosys-
tem approach – a concept which is identified as lying at the heart of modern
strategies of environmental protection – should be inclusive (United Nations,
2006, para. 6). This inclusiveness refers to the participation of stakeholders
and local communities in planning and decision-making processes. The eco-
system approach, by means of this participatory process, combines the ideas
of conservation, sustainable development and many others with social equit-
ability (Zervaki, 2019).
The common accord for participatory rights as one of the cornerstones of
modern democracy is often less eagerly applauded when it comes to the use of
those rights by have-not blocks – minorities, Indigenous groups and others.
The doctrine was able to develop various models of levels of public partici-
pation (Pretty, 1995). The analysis of those models shows that although
public participation seems to be an unavoidable element of any discussion on
environmental justice, it can also be misused in creating procedures in which
illusive participatory rights will be used to legitimate environmental injustice.
As Arnstein (1969) puts it, there is a critical difference between going through
the empty ritual of participation and having the real power needed to affect
the outcome of the process. At times, the distortion of participation into a
public relations vehicle by powerholders can be observed, which deprives the
decisions undertaken under such a veneer of their legitimacy as well as of all
the potential benefits which stem from properly implemented public partici-
pation (Pretty, 1995).
Meaningful participation enables collaboration between different interests
to deliberate effective outcomes (Cadman, 2011). Access to environmental
information (transparency) enables stakeholders to have substantive and
worthwhile participation by giving them the ability to formulate substantive
outcomes and outputs (Kooiman, 1993). Similarly, participation without
 A framework of Earth system justice 237
redistribution of power is an empty and frustrating process for the powerless
(Arnstein, 1969, p. 216). It creates a false impression of public involvement
and allows the powerholders to claim that all sides were considered but makes
it possible for only some to benefit. It may be considered more as a perverse
means of preserving the status quo.
Procedural aspects of Earth system justice must hence create institutional
and legal guarantees which would prevent the process from being manipu-
lated by the usually more powerful side. This goal seems to be hard to achieve
as the modes of manipulation seem to become more and more refined. One of
the gains of democracy – freedom of speech and freedom of scientific
research – are being abused in the process in order to create uncertainty as to
the facts on which decisions should be made. Greenwashing, fake news and
dishonest scientific research, to name a few, can be mentioned here. An
imperfect solution to the above-mentioned issues seems to be transparency
and raising public awareness and the level of environmental education. Such
imperfect means seem to be the only ones not in direct conflict with other
democratic values.
Different models of efficient participation show that there are various
modes of public participation. Only a few of them go beyond a façade of a
real powerplay in the processes. Many conditions have to be met in order to
provide for real and objective public participation. The doctrine aspect of
proper sharing of decision-making responsibilities through properly designed
institutions is often mentioned as one of such conditions (Churchill and Ulf-
stein, 2000; Jänicke, 1992; Susskind, 2004). An organised power base in the
community is considered an important element of the partnership model of
developing solutions (Backstrand, 2006). Such a power base requires financial
resources and access to experts like technicians, community organisers and
lawyers (Jänicke, 1992; 1996; Mason, 1999).
This shows the possibility of enhancing the quality of public participation
by empowering environmental NGOs and growing their role and engagement
in the processes. A shift in the perception of engagement by local commu-
nities and non-governmental organisations is also required (Pretty, 1995).
They can function and have the potential to become a means to achieve pro-
ject goals, especially cost reduction and enhancement of the quality of the
procedures, for example, in the impact assessment procedures as well as pro-
tection of citizen rights. An important element of just participatory proce-
dures is also the time factor. Reasonable timeframes are essential for the
public to prepare and participate effectively during the environmental deci-
sion-making process.

Recognitive dimension of Earth system justice

The above-mentioned reflections on justice from the intergenerational per-
spective reveal one of the biggest challenges for Earth system justice, namel,y
the problem of lack of recognition. Current global socioeconomical models
238 Maciej Nyka
and even participatory political models are based more on exclusion and
various forms of environmental racism than on common participation and
sharing. Many years have had to pass before the perspective of justice started
to include Indigenous peoples. For hundreds of years, they were dispossessed
of their lands, had to accept an alien presence and were unable to at least
formally participate in decision-making processes. Various aspects of this
process included political, economic, development and also environmental
rights. Even half a century after the end of colonialism, exploitation has not
ended. It has just changed its form. Similar quasi-colonial practices can be
observed today. They are performed less commonly by states and more often
by big multinational corporations.
A governance perspective common for all living beings, including the
perspective of future beings, is a challenge. However, it is a challenge
which some countries have undertaken. It is enough to mention frame-
works to provide proper recognition of rights and interests of Indigenous
peoples introduced in New Zealand, where law was able to evolve into the
litigation model which tries to reflect not only their Indigenous knowledge
but also some elements of their culture (Abernethy, 2014). Similar to this
is Pachamama (Mother Earth) law in Bolivia under which Pachamama is
a living dynamic system made up of the undivided community of all living
beings, all of whom are interconnected, interdependent and com-
plementary, sharing a common destiny (Sólon, 2018). It is also worthwhile
mentioning progress developed by courageous governmental decisions like
the one made by India’s Ministry of Environment and Forests which
identified cetaceans as non-human persons that should, as such, have their
own specific rights (Piotrowska, 2014). What is interesting is that these
modern concepts which attempt to introduce more democratic or even
interspecific aspects of environmental justice are usually formed on the
basis of Indigenous beliefs and ethics.
The best way to ensure that a person is capable of experiencing full inclu-
sion in the procedural arrangements concerned with environmental justice as
well as the distributive aspects of this concept is to guarantee rights, resources,
opportunities and access to rational contexts that provide for participation in
the life of the society (Pereira, 2013). Described by the German philosopher
Axel Honneth as the ‘moral grammar of social conflicts’, recognition deals
with the way in which different people, their cultures, their relation to nature
and the environment, their identities and their knowledge systems are
accommodated and respected (Honneth and Anderson, 1996). As has been
mentioned above, proper recognition of agents, their rights and interests can
be challenging. On the other hand, distribution, participation and recognition
seem to form a triad encompassing the most important dimensions of justice
in the environmental context (Schlosberg, 2004; Sikor et al., 2014). The main
focus of recognition as an element of justice is the extent to which agents,
ideas and cultures are respected and valued in interpersonal relations, public
discourses and practice.
 A framework of Earth system justice 239
Earth system justice needs to redefine the recognitive aspects of environmental
justice. The concept of the ecosystem itself as the dynamic system of mutual
interrelations also includes relations with people. Indigenous people whose cul-
ture and knowledge has allowed them to function through generations as a part
of the ecosystem are especially vulnerable to being marginalised in the misused
name of progress (Brosius and Hitchner, 2010). On the other hand, nature con-
servation can also work constructively with local communities, especially if it
embraces the concept of recognition. There are examples in which Indigenous
people have embraced protected areas as a way to positively promote both their
territories and traditions (Martin et al., 2016).
Responses to the problem of lack of proper recognition are often a matter
of philosophical analysis. According to Hegelian philosophy, recognition
injustice happens through unequal encounters in which the more powerful
actor fails to recognise the value of the other (ibid.). This denial of recogni-
tion constitutes psychological harm, which also has consequences in the
material or even health sphere (Willis et al., 2006). The critical theory of
recognition in its contemporary version still builds on the indivisible conflicts
arising over immaterial values, such as dignity and respect (Honneth, 2004),
while also showing the problem of economic exploitation of certain groups
(Fraser, 1995). According to Fraser (1997), a solution to the injustice caused
by nonrecognition is to valorise the group’s groupness by recognising its spe-
cificity. Fraser’s theory also links misrecognition with social mechanisms that
negatively influence the opportunities of certain social groups. Those groups
are being subordinated by inequalities stemming from the social constructions
within which they have to function.
Another interesting perspective on the problem of recognition is presented by
Nobel Prize-winner Amartya Sen. His perspective links recognition with cap-
abilities, and he argues that nonrecognition is a consequence of deprivation of
opportunities or capabilities (Sen, 1999). The capabilities are dependent on cul-
tural recognition and other conditions of a particular group, including their
economic status. The capabilities approach to recognition opens the perspective
of justice as recognition also for the inclusion of non-human actors. For exam-
ple, the status of animals can also be considered as dependent on their cap-
abilities, and deprivation of them may constitute an argument in favour of
identifying human duties towards them (Armstrong, 2012). One of the impor-
tant lessons from Sen is the relativity of the perspective of needs and that various
social and cultural values influence what constitutes a meaningful life for an
individual. According to Sen, identity is complex, multiple and dynamic, such
that attempts to reduce people’s value to a simple, collective label are seen as the
miniaturisation of people (Sen, 2007).
The Convention on Biological Diversity (United Nations, 1992b) together
with the Nagoya Protocol (UN Convention on Biological Diversity, 2010)
seem to include elements of distributive justice (the concept of equitable
sharing of the benefits) and even show an awareness of the importance of
recognitive aspects of environmental justice while referring to the role of
240 Maciej Nyka
traditional knowledge (Broggiato et al., 2015). This is not common in interna-
tional legal acts. However, even in the case of those exceptional documents, issues
arise in the field of recognition. The beneficiaries of mechanisms of equitable
sharing have to adopt procedures that are prepared in a language and legal cul-
ture which remains alien to them. They have to westernise in order to be able to
have access to procedural or distributive aspects of the equitable solutions offered
to them by the Convention and the Protocol (Suiseeya, 2014; Vermeylen and
Walker, 2011). In addition, implementation failures make the missing element of
recognitive aspects of environmental justice in the fields covered by the Biodi-
versity Convention (United Nations, 1992b) even more problematic (Martin et
al., 2016). Without attention to the equal status of the way others see the world,
attempts to introduce environmental justice are likely to reproduce the dominant
concepts, which through many years have proven to be ineffective (ibid).
Attempts which are made to define and implement recognitive justice into
ESL require a simple conceptual framework which deconstructs the recogni-
tion into four components: subjects, harms, mechanisms and responses (ibid.).
Subjects in this context are stakeholders who are entitled to (at least) moral
consideration, who hold rights and deserve recognition (Sikor et al., 2014).
The problem of lack of recognition of the rights of Indigenous people seems
to be just the tip of the iceberg. Without providing them with practical
instruments of participation, with a fair share of ecosystem services, which
were surprisingly (to colonists) used by them in a very sustainable way, further
progress cannot be considered. This may be the reason why the idea of iden-
tification and creation of the Ombudsman of Future Generations has not
gained enough support to be found in the final version of ‘The Future We
Want’ Rio 20+ declaration (Nyka, 2014; United Nations General Assembly,
2012). Earth law from the planetary perspective has to accept even a broader
perspective – the perspective of law and governance by and for all living
beings (Kotzé and Kim, 2019). This requires giving rights and empowering
participation in the processes in the case of some but also finding an adequate
model of human stewardship towards the remaining elements of nature.
The analysis of the role of recognition in fulfilling the conditions of envir-
onmental justice seems to suggest that recognition fastens together three per-
spectives on environmental justice. It is important to stress that the struggle
for recognition shows that Earth system justice has to go beyond the purely
distributive elements, despite the fact that, even in this area, many inequalities
in social benefits and costs in the sphere of environmental protection still
exist. Theories of recognition reveal the limitations of the distributive model
and identify areas of concern which require additional treatment. At the same
time, the distributive analytical approach can provide insights into failures of
recognition (Martin et al., 2016). It clearly shows that in order to bring ESL
closer to the ideal of environmental justice, all three dimensions of environ-
mental justice have to remain a point of focus for new policymakers. The
future of environmental regulation seems to be culturally diverse and includes
a wide spectrum of interests and the preparation of a proper procedural and
 A framework of Earth system justice 241
institutional framework. Good practices can be found all over the world,
usually at the local level, but their global application surely requires redefini-
tion of the fundamental norms of international environmental law.

Conclusion
The analysis presented in this chapter shows the role of justice in the process
of the creation and functioning of ESL. Research proves that the concept of
justice (environmental justice) is one of the cornerstones of any new concepts
connected with reforming the global legal system of environmental manage-
ment and regulation. Change with an evolutionary character is already hap-
pening. ESL is a system in statu nascendi and its implementation might have,
and in some aspects should have, both an evolutionary and revolutionary
character; in many aspects, what has been shown is that revolutionary chan-
ges are required that will mean the replacement of some of the critical ele-
ments of the international legal system.
The concept of environmental justice is multidimensional. Various problems
connected with the implementation of the idea of justice arise in its distributive
dimension. Legal instruments prepared to ensure redistribution of burdens and
profits within societies and among states exist in international and national
legal orders. However, the existing redistribution schemes have many drawbacks
and often cause disappointment and frustration with respect to efforts aimed at
the protection of the environment. This causes problems with implementation
and enforcement of regulatory measures and lack of engagement in interna-
tional cooperation in the field of environmental protection.
Adding an intergenerational dimension to the problem of distribution of
environmental goods and services additionally complicates the decision-making
processes. However, the obligation of intergenerational equity stems directly
from the concept of sustainable development and thus has to be included in
some way. What is even more important is that intergenerational equity seems to
support standards of protection for the environment for the contemporary gen-
eration. Establishing ESL will require proper guarantees of the universal pro-
tection of rights not only from the perspective of the contemporary generation
but also of the generations to come. Thus, the concept of intergenerational
environmental stewardship seems to be an important element of ESL.
Closely connected with the above-mentioned challenges is the problem of
procedural justice. Just distribution of burdens and profits can be ensured
only by procedural guarantees in the field of environmental law. Substantive
and procedural environmental rights create a self-supporting system of envir-
onmental justice. Participatory guarantees create public involvement in envir-
onmental protection, raise support and create the will to undertake challenges
at the lowest level of an individual person and their individual everyday
choices. Earth system justice cannot continue to waste the energy of inclusive
civil society of those understanding their individual interests in common
actions in the field of environmental protection.
242 Maciej Nyka
What is interesting is that the regional systems of protection of environ-
mental rights are either focused more on procedures or on substantive aspects
of those rights. In both cases, they seem to be underdeveloped and deprived
of a huge part of their efficiency by the denial of the mutual support of dis-
tributive and procedural elements of environmental justice. The importance of
the procedural dimension of environmental justice is even greater if it is
understood that modern institutions of substantial environmental law, such as
environmental impact assessment, adaptive environmental management and
an ecosystem approach, are de facto dependent on fair and inclusive partici-
patory procedures.
The importance of procedural justice is strengthened by the fact that in
many societies, huge disappointment appears when considering the effi-
ciency of the environmental management performed by central govern-
ments or high-level official authorities. Procedural justice allows the
immunisation of the environmental protection goals against unstable poli-
tical preferences and non-ambitious environmental goals presented by the
political class.
The evaluation of contemporary procedural arrangements clearly shows
that in many respects they fail to go beyond a pretentiousness which gives
the appearance of democratisation of decisions being taken elsewhere.
Contemporary procedures also to a large extent exclude weaker share-
holders, such as Indigenous groups, minorities, the elderly and others, by
unnecessary formalisation of the participatory process or simply the lack
of recognition of the status of certain groups of interests. In this respect,
one can observe strong links between the procedural and recognitive
aspects of the Earth system justice.
As has been noted, the problem of lack of recognition can be observed
in both the distributive and procedural aspects of environmental justice.
The Earth system justice concept tries to overcome this shortcoming by
opposing all forms of environmental racism. Recognition and thus
empowerment of Indigenous people and their knowledge often seem to
provide answers in areas in which solutions cannot be given by con-
temporary science. Recognition is also a condition of proper implementa-
tion of procedural and distributive justice. Lack of recognition excludes
weaker actors from the distributive schemes, deprives them of articulating
their needs and leaves them without procedural means of reacting to such
injustices.
Policies are being formulated and positive examples can be found of
initiatives that better recognise the role of civil society representatives,
businesses, individuals, future generations, animals and other stakeholders
in the perspective of Earth system justice. What is interesting is that those
examples appear in Asia, Africa and South America and outside Europe
and North America, which claim to represent the highest levels of devel-
opment of civilisation as well as being considered the cradle of inclusive
democracy.
 A framework of Earth system justice 243
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se/75/judgments
14 Common interest, concern or heritage?
The commons as a structural support for an
Earth system law
Paulo Magalhães

Common interests, issues and problems

As a system, the Earth’s climate challenges the very foundations of interna-
tional law, because it is resistant to any kind of rigid and exclusively physical/
territorial division, even in a legally abstract way. Framing and organising the
relations of interdependence that emerge from the shared use of this highly
interconnected Earth system at a global scale, notably in the context of cli-
mate change, are one of the biggest tasks that both diplomats and scholars
have before them if they are to rescue the planet from the environmental and
climate catastrophe it is heading towards. The bio-geophysical indivisibility of
the Earth system is still a huge challenge for the law, so the study and redefi-
nition of the global commons without borders like a stable climate, are the
key password for an Anthropocene able to support human societies. Yet
international law remains hampered by an inability to address a problem than
transcends states and borders. To overcome this inadequacy, considerable
effort has been put into determining the relevant legal status of the climate.
When climate change entered the UN agenda, one of the first questions
asked was how to define climate from a legal standpoint. Two different
approaches immediately arose: to consider a stable climate as belonging to all
humankind, to be protected for all generations as a common good; or whe-
ther the damage of a changing climate should be avoided, making it a
common concern instead. On 12 September 1988, Ambassador Stellini of
Malta requested the inclusion of a declaration proclaiming climate as part of
the Common Heritage of Mankind on the agenda of the 43rd session of the
UN General Assembly. While member states refused to accept the existence
of a common good that spans across borders, they did agree on a resolution
stating climate change is a Common Concern of Mankind (United Nations
General Assembly, 1988, A/RES/43/53). This was later confirmed at the Rio
Earth summit of 1992 (United Nations, 1992a), and was accepted as the lan-
guage underpinning the UN Framework Convention on Climate Change
(United Nations Framework Convention on Climate Change (UNFCCC),
which entered into force on 21 March 1994), thereby determining the path by
which societies combat climate change today (Tolba, 1991; United Nations,

DOI: 10.4324/9781003198437-18
 The commons as structural support for ESL 249
1992b). Almost 30 years later, and well after the adverse effects of climate
change have been conceptually understood as a common concern of humankind,
there is still no consensus on what that means from a legal standpoint. Even
though this language remains within the Paris Agreement, common concern
continues to be a vague political formula, that does not legally recognise the
existence of the common good itself, making it impossible to legally protect the
rights and duties that necessarily derive from its use (Tolba, 1991).
The reason why the nature and scope of concepts like global commons,
common interests, common heritage or common concern of humankind,
remain somewhat unclear (Voigt, 2014) is because the dividing line between
their means remains vague (Tams, 2011). This lack of definition arises from
the fact that the concept continues to challenge the ideological pillars of the
modern international order, which explains why it has been so difficult to find
an appropriate legal environment for it to be grounded and developed in
international law.
However, although all these concepts are related and share the same word
common, they are distinct from each other. Common concerns (CC) cross the
borders of unitary states, and necessitate collective action (Shelton, 2009b).
This is the starting point for the fundamental difference between heritage and
concern: a CC is related to a specific issue. In that sense the concept should
enjoy normative superiority, since it confronts notions of fundamental value
(Biermann, 1996). While the semantic distinction suggests a difference in
normative meaning, taking into account the issues at stake (Shelton, 2009a),
the idea of a concern implies urgency, potentially unstoppable environmental
impacts and a whole suite of societal impacts (Voigt, 2014). On the other
hand, the term heritage is not related to an issue/problem/cause but rather
with a resource. Therefore, it is observed that, in the Maltese proposal, the
object of heritage is a stable climate, while concern targets the adverse effects
of climate change. Concern does not have proprietary meaning, but is related
rather to those issues and problems, and requiring a response (Scholtz, 2014).
In other words, the heritage is focused on the exploitation or management of
one type of resource that represents a shared inheritance, a common patri-
mony that belongs to all humankind, while concern is centred on the problem
itself, without properly defining its belonging, and consequently the possibi-
lity of establishing a legal regime for its use as a common resource. The
meaning behind the common heritage of humankind (CHH) implies a geo-
graphic area or resource, while the common concern of humankind (CCH)
implies a specific issue (Bowling et al., 2016). An analogy of the legal rela-
tionship between heritage to concern might be made with the grammatical
relationship of subjects to verbs.
The territorially and tangibility of the resources to which the common
heritage concept has been applied have been one of its main characteristics up
to now. The idea has been used as a legal regime for resources of areas that
are not legally capable of national appropriation. As a result, specific regimes
have been developed for the deep oceanic seafloor and its subsoils, and
250 Paulo Magalhães
Antarctica, or the Moon (as Cirkovic explores in Chapter 11 in this volume)
(Kiss and Shelton, 2007). However, although the reference to climate as a
resource is frequently used in some legal literature (United Nations, 2015b),
the question is that a stable climate is a certain pattern of functioning of the
Earth system corresponding to a well-defined operating mode and is, by its
very nature, intangible from the legal point of view. If a stable climate is a
natural phenomenon that exists de facto in the natural world, it does not
necessarily have to be reduced to an issue of common interest in international
law, equal to peace or human rights. The scientific knowledge already exists
to equip international law with the necessary tools to materialise this intan-
gible natural system, which spans across and beyond the national territories
of states. The approach implicit in the UN Resolution 43/53 on climate
change (United Nations General Assembly, 1988) indicates a path based on
the conviction that the CC concept could liberate states from the con-
troversial treatment of common heritage objects, which have often ended up
historically in disputes about tangible resources. However, what has resulted
instead are extended negotiations around such topics as voluntary carbon
reductions, as exemplified in the UNFCCC by the Conference of the Parties
(COP) processes, which have not successfully arrested the increasing levels of
carbon dioxide emissions in the atmosphere (Boudreau, 2017).

The ambiguity of the concern approach

After more than 25 years of deadlocked climate negotiations, it seems clear
that the concern framework with its mere duty of cooperation, self-contain-
ment and burden sharing is not enough to tackle the complex cascade of the
socio-economic effects of climate change. But it is probably even more rele-
vant to be conscious that this is not a matter of binding standards, as it is
often understood, and usually placed at the centre of political or legal
debates. What seems to be of greatest relevance, but absent from most dis-
cussions, is a focus on the structural conditions that are needed to take pos-
sible collective action and a successful management of commons (Ostrom,
1990). Subsequently, the concern approach must be analysed in the context of
its ability to be the legal support for a paradigm shift to organise the global
relations that emerge from the shared use of one indivisible global common
good – the Earth system – and built a regenerative economy able to restore it
to a well-functioning state.
Because the substantive content and characteristics of the concern-based
approach are inevitably linked to the results (or the lack thereof) achieved in
combatting climate change, it is of the utmost importance to analyse its fea-
tures. Common concern is a derivative concept from the common heritage of
humankind, which is still being mostly applied to territorial areas and their
tangible resources, with all the subsequent conflicting interpretations. The
option of common concern was partially taken as a way out of these con-
troversies related to the common heritage of humankind (Tolba, 1991). It
 The commons as structural support for ESL 251
does not require the existence of a legal object (as is the case for common
heritage), but it rather exists on the subjective side of a collective human
feeling (concerned community) (Shelton, 2009b). The concern is focused on
the mitigation of one problem, and not on building a permanent system of
management or restoration of a common good (stable climate). It is rather an
appeal to equitable sharing (ibid.) of burdens resulting from a problem (cli-
mate change). Common concerns do not connote specific rules and obliga-
tions (neither of result nor of conduct) but establish the general basis (or
entitlement or even mandate) for the concerned community to act coopera-
tively to address the concern (ibid.). Concern ‘presupposes nothing more than
that the States are objectively invited towards joint and concerted actions’
(ibid., p. 25). Additionally, a definition of the common concern of humankind
concept is difficult, especially as concern might be applied to the cause of the
concern as well as to the responses (Trindade and Attard, 1990). Although
this represents a framework for future legal action aimed at dealing with
global challenges (ibid.), the notion was not a legal development in itself. This
has led to the conclusion that it is important to elaborate the concept of the
common concern of humankind so that it is clearly understood, and therefore
capable of interpretation when it comes to the rights and responsibilities of
states when it comes to implementation (Tolba, 1991).
Despite the calls for the evolution and clear definition of the concept of
concern in terms of rights and obligations (ibid.), climate negotiations have
bypassed these initial conceptual and structural discussions since the founda-
tion of the UNFCCC, and this ambiguity is accepted as a given thing. The
ambiguity of the concept nevertheless meant that it became controversial in
its application. In 2015, the International Law Commission (ILC) in its Draft
Guidelines on the Protection of the Atmosphere removed the sentence that
the degradation of atmospheric conditions was a common concern of
humankind (International Law Commission, 2015). As reported to the UN
General Assembly (UNGA) in 2015, the reason for the removal was that ‘the
legal consequences of the concept of common concern of humankind remain
unclear at the present stage of development of international law relating to
the atmosphere’ (ibid., pp. 26–27). Some delegations of the Sixth Committee
of the UNGA objected to the use of common concern because it was both
vague as well as being controversial, since it was not only hard to define but
subject to different interpretation (ibid.) If, on one hand, the concept liberates
discussions from the controversies of common heritage relative to tangible
resources or areas, on the other, it creates the deadlock of indeterminism.

The common heritage as an intuitive vision

It is necessary to contextualise the elements of common heritage in the terri-
torial nature of a society, which considers the commons as mere leftovers
from sovereignty or private property. From a legal viewpoint, the planet has
so far been treated as a geographic territory of 510 million square kilometres
252 Paulo Magalhães
divided among states and the remaining territorial global commons. This
oversimplified one-dimensional view leaves out the core expression of nature:
the functional Earth system as a single, complex life support system. As such,
it could be argued that the favourable Holocene-like state of the Earth
system – i.e. the set of interacting physical, chemical, and biological global
scale cycles and energy fluxes that allow life on the planet – is humanity’s
ultimate global common that is an intangible and legally indivisible good.
In 1967, when the first Maltese Ambassador to the United States, Arvid
Pardo, initially proposed the idea of common heritage of humankind, he
clearly realised that the global commons was not to be understood as the
leftovers of states outside their sovereign borders. Aware of this reductionist
perspective, he further sought to avoid its limitations by proposing a treaty in
1971 which aimed to demonstrate how the common heritage notion might be
implemented across the marine environment (Pardo, 1993). The rejection of
this proposal was inevitable at that time because there were no scientific
instruments in the 1960s to define, measure and delimit what this non-terri-
torial marine environment might be, inexorably labelling it as an impractical
project, even if the political will was in place.
Once the global functionality of nature is understood, the original impetus
underpinning Pardo’s intuitive proposal provides a vision of what is really
common to all humanity and unites it as something that transcends the ter-
ritorial dimensions of the planet. The big question is how to represent this
irrefutable fact from a legal standpoint, and then to organise human relations
that emerge from the shared use of this common, single, and non-territorial
global environmental life support system.

A new way of thinking about the Earth: the Anthropocene

Recent scientific developments have defined and described the Earth system
and attempted to respond to the challenge of understanding and measuring
this non-territorial, and functional environment as a whole by developing the
systems-based concept of planetary boundaries (PBs) (Rockström et al.,
2009). Based on intrinsic hard-wired properties, PBs define a combination of
variables, relations and parameters that together describe the state of the
Earth system, thus enabling the understanding of the role of interacting che-
mical, biological and physical processes in the maintenance of a favourable
state for humanity (i.e. the Holocene), as well as the role of humankind in
pushing the system out of its stable, desirable state. These boundaries are a
combination of science-based limits to nine core processes (e.g., climate
change, ozone depletion, biosphere integrity, ocean acidification, and others)
that together describe the intangible functioning of the Earth system and the
limits (boundaries) to the degradation of those processes. The favourable bio-
geophysical state corresponding to a well-functioning Earth system can be
quantitatively defined – the Safe Operating Space for Humankind (see Chap-
ter 5 in this volume by Fernández Fernández). Within those limits, the system
 The commons as structural support for ESL 253
is resilient – that is, it has the capacity to absorb shocks while maintaining
function (Folke et al., 2002). When these limits are exceeded, the system no
longer tends to recover towards its original identity, but instead tends towards
a different configuration (Kim and Bosselmann, 2015).
It is important to highlight that the most critical scientific principle that
underpins the PBs’ framework is that the Earth system functions as a single
integrated system at the planetary level (Steffen et al., 2018). If some of the
planetary boundaries are transgressed, the risk that the Earth system is
driven out of the stable Holocene state rapidly increases. Earth system sci-
ence has come to represent a significant paradigm shift because it unfolds a
new way of thinking about the Earth. It constitutes an integrating meta-
science for the planet as a whole, a system that is complex, evolved, and
interconnected and more than simply an assortment of ecosystems or indi-
vidual ecosystems or global level processes. The new paradigm of Earth
system science, which calls for a comprehensive study of the co-evolution of
the geosphere, biosphere and the techno-anthroposphere, is linked to the
concept of the Anthropocene. The idea of the Anthropocene is seen by
many scientists as the time when humans started to play a significant role in
shaping the Earth system (IUCN Academy, 2019).
The term Anthropocene denotes a new geological era in which various
significant geological processes and conditions have been fundamentally
affected by human activity (Zalasiewicz et al., 2017). It represents the
beginning of a very rapid human-driven trajectory of the Earth system away
from the glacial-interglacial limit cycle towards new, hotter climatic condi-
tions and a profoundly different biosphere (Steffen et al., 2018). In the
Anthropocene, the Earth system functioning is moving out of the pattern of
stable and predictable dynamics of the Holocene, into a new successor
epoch. Humanity is transitioning from the safe operating space into a new
and clearly unsafe space, where the vital functions and flows of matter and
energy will shift sharply, with negative effects on the stability of the Holo-
cene climate, which has supported the development of human civilisation so
far. The systemic understanding of the interconnections of life and the
planet, including humans, changes the long-held perception of the dichot-
omous relationship between humans and nature, and inserts humanity into
a system. This brings a new perspective with evident interdependencies
among all humans, and between humans as well as their societies and the
Earth system of which they are part, depend on, and influence. The current
exclusive territorial approach and the fragmented nature of the international
legal system are not able to explain and represent the real and factual rela-
tionships that emerge and are established by the common use of the same,
interconnected, and indivisible system. The daunting challenge in the
Anthropocene is, therefore, to develop solutions on how to represent and
organise the interconnected relations, that now extend to a global and
intergenerational scale.
254 Paulo Magalhães
Bridging the gap between theory and reality
What is at stake for the law is its own ability to explain the world. To con-
ceptualise the planet as a mere territory is the root of many of the environ-
mental, economic, and social crises of the current era; that is, the legal system
is based on an obsolete world-view. If this new Anthropocene epoch is chal-
lenging fundamental legal categories and calling for a new normative con-
ception of the Earth, only a new discourse with an improved explanatory
power of reality, can be the support for its legitimacy, as Camilleri and Falk
explain very well:

The legitimacy of a discourse resides in the explanatory power of reality,

so that legitimacy erodes to the extent that its inadequacy to reflect the
real situation in the world increases. In every area where the discourse of
sovereignty has lost its ability to accurately portray the facts, it is pre-
cisely at the gap between theorisation of reality and the actual reality of
the ecological dynamic of the biosphere that this loss of legitimacy
becomes clear.
(1992, p. 46)

The capacity of law to explain and represent one complex and highly inter-
connected planet by accurately portraying natural facts and building a fra-
mework that enables the successful management/restoration and maintenance
of a global common with no borders, in a way that overlaps with territorial
sovereignty, will determine the extent of that legitimacy (Magalhães et al.,
2018). Law and the science which underpins it must change to stay relevant in
the Anthropocene, particularly if law is to continue to be the main regulatory
instrument used to create and safeguard social order, and maintain predict-
ability, and stability as well as legitimacy, while at the same time pursuing
justice (Kotzé and Kim, 2019). The law can only effectively meet this chal-
lenge by including modern scientific concepts and thereby maintaining an
essential role of creating a better world, instead of being part of its downfall
(Capra and Mattei, 2015). Currently, with a clearer perception of all these
interconnections and global functioning of the Earth system as a single
whole, it is not appropriate, for example, to address the marine environment
in an isolated way, but rather to integrate it into the bio-geophysical cycles of
a single system on the global scale. With the development of knowledge about
the functioning of the Earth system and by defining the well-functioning state
of the Earth system and its qualitative and quantitative boundaries, there are
now the scientific instruments to better identify a specific legal object at a
global scale. From this evolution, a new principle of international law is also
emerging – the Principle of the Integrity and Unity of the Earth System
(Magalhães et al., 2019).
Arvid Pardo did not have this knowledge in the 1960s – the possibility of
distinguishing the marine environment as a whole from the territorial area of
 The commons as structural support for ESL 255
the oceans – but today it is indeed possible to distinguish the environment as
a whole from the territory of the planet itself and define it. The safe operating
space for humanity, as a qualitative and non-territorial space, may thus
overcome the technical limitations of the initial territorial/tangible resources
object of the common heritage approach, and provide the answer to a grow-
ing range of possible non-spatial applications, thus accomplishing the objec-
tives that were in the embryo of this concept. If the common heritage concept
includes the idea of interconnectedness – that the global commons cannot
only be confined outside national borders, and thus cannot be managed
through a governance model based on siloed territorial thinking – and if there
are now the scientific tools to better represent this natural reality in interna-
tional law, then humanity is at the historical moment to bridge the gap.

Distinguishing territory from Earth system

The overlap of one static land-based territorial logic of sovereignty with the
dynamic global circulation of the water, atmosphere, energy and the bio-geo-
physical cycles, inevitably leads to dysfunctionality; it has been observed that
‘the challenge to international law is not so much rooted in water defying
sovereignty, as it is rooted in sovereignty defying reality’ (Brunnée, 1998, p.
53). Even if it were possible in the case of the oceans to realise a legal division
of these areas into different maritime zones, or to do the same thing to air-
space through legal abstractions, this cannot be completed at the bio-geo-
chemical level of either the oceans or the atmosphere, nor the climate, given
that the fluids of which they are constituted circulate continuously around the
planet. Making a distinction between the composition of the atmosphere and
the geographic contours of airspace, or between the quality of water, its
global circulation and the space where the molecules of water are temporally
located, opens up the possibility to build new concepts with a greater ability
to portray the real dynamics of the natural world, and to identify the
common good that must be the object of a common management. Legally
speaking, an unstable planet of extreme climate variability due to malfunc-
tions at an Earth system level, or biosphere that have been so degraded that it
is no longer capable of supporting humans, may be subject to sovereign
powers, but it no longer remains humanity’s common home. In the same way,
the impoverished oceans can be subject to sovereign national disputes, but
nor can they meet the needs of their marine life or humanity in its entirety
(Magalhães, 2020). Earth system science enables humankind to formulate a
new conceptualisation about its planet: the physical one (planet Earth) and
the intangible one (the Earth system). It is thus vital to understand the Earth
system as a common good that is independent from the artificial geopolitical
division operated by political territorial borders of the nation states.
While there is an absence of a concrete distinction between these two
completely different perspectives, there are already several international
documents referring to the need to address the Earth system as a single and
256 Paulo Magalhães
interconnected whole, as a condition to tackle climate and the biosphere
emergencies in an effective manner. The UN Secretary-General’s report ‘Gaps
in international environmental law and environment-related instruments:
towards a global pact for the environment’, issued in November 2018, notes
the ‘proliferation of multilateral environmental agreements and the resultant
distinct and separate mandates ignore the unity, interconnectedness and inter-
dependence of the Earth’s ecosystem’ (UN Secretary-General, 2018, para. 80).
Similarly, UNGA Resolution A/RES/75/220 acknowledges the holistic knowl-
edge of Earth system science in developing policies and laws to manage human-
nature interactions more effectively as well as recognising that both Earth system
science and Earth system governance (ESG) can play a mutually reinforcing role
in creating a holistic planetary vision (United Nations General Assembly, 2020).
In light of the fact that sovereignty is founded the concept of the geographic
territorial space while Earth systems thinking is grounded in an intangible qua-
litative and quantitative understanding of planetary functioning, it may be
entirely possible to make a legal distinction between them, and by doing so, to
harmonise the coexistence of both.

The intangible well-functioning Earth system as a common heritage

The main difference between the climate system, and other territorial resour-
ces already recognised as common heritage, such as the living and mineral
resources of Antarctica, is the intangibility and non-territoriality of its char-
acter. But if this difference is true for resources on Earth, this is less clear for
outer space. Oosterlinck (1996) notes this will be an increasingly significant
issue in space, not just for the classical form of tangible property, such as
minerals, but also intangible property, such as orbital slots on the geosta-
tionary orbit or radio frequencies. This is important because these intangible
objects of space law are not mere ideas of the human mind, but rather natural
phenomena that exist in the universe and are exhaustible by use. Thus, these
natural intangible objects are examples about which the law may need to
make determinations regarding their management and use, or the relevance
(and economic value) of the goods themselves, requiring new legal solutions.
If the existence of natural intangible objects like the radio spectrum, or pri-
vileged orbits have already been recognised (Kiss, 1982), is it not possible to
recognise the existence of the Earth system (i.e. a certain pattern of function-
ing that is favourable for humankind as an operating mode) as a natural
intangible object of law? The common interest is at the heart of the common
heritage of humanity; indeed, it is the idea of heritage that materialises the
common interest of humanity, simply located in one space, or resource (ibid.).
In turn, the safe operating space for humanity provides the technical
requirements to define the obvious common interest of humanity to protect
and maintain the very support of life and define it with precision as a
common good that belongs to all humanity. Those conditions correspond to a
well-functioning Earth system, the ultimate common good, which, although
 The commons as structural support for ESL 257
intangible, ultimately supports the common heritage of humankind. Environ-
mental legislation should at the very minimum provide the necessary legal
limits preventing human activity from encountering or exceeding planetary
boundaries, which ultimately determine the safe space within which human-
kind can operate. Legal boundaries need to translate into law, as faithfully as
possible in the light of partial information, physical planetary realities and by
doing so describe the limits of human activities (Kotzé and Kim, 2019). But
more importantly, having this objective description and well-founded quanti-
fication as a point of departure, it is possible to consider as separate legal
entities, the intangible natural dynamic of the bio-geophysical global scale
cycles and energy flows of the Earth system, on one hand, and the physical
planet and the space of territorial sovereignties of the states, on the other. In
other words, it is possible to legally separate Earth system functioning, i.e. the
bio-geophysical global scale cycles and energy flows that pass through the
spaces of sovereignty, from the geographic representation of the areas of ter-
ritorial sovereignties.
From a legal point of view, the aim is to protect a well-functioning state of
the Earth system (that gives rise to a resilient, diverse, productive environment
with a stable climate), resulting from a well-defined, interactive bio-geophysi-
cal structure of atmosphere, oceans and land. This structure gives rise to well-
defined dynamics already identified by Earth system science, as the favourable
state of functioning for humankind. Therefore, there are the necessary
requirements to identify, define and classify the intangible natural common
good, namely:

1 It cannot be touched or seen, although humanity benefits from its sound

functioning, or suffers from its negative impacts.
2 It is globally coherent and not geographically located.
3 It is materially and legally indivisible.
4 It cannot be appropriated although its quality is exhaustible.
5 It is measurable and identifiable, therefore, not only is it possible to dis-
tinguish it from the territorial space of the planet, but it is possible to
detach it in relation to physical space and thus to consider it as a separate
legal entity.

Nature is not only what can be touched and seen but its most valuable
dimension is its intangible dimension. Fortunately, human societies have a
long history of recognising intangible assets and granting them legal protec-
tion. Examples include the Intangible Cultural Heritage Convention
(UNESCO, 2003), the goodwill value of companies, intellectual property
rights, and so forth. These solutions, which have resulted in new legal recog-
nition of intangible assets, proved to be crucial for the construction and
functioning of today’s society. The development of a Lex Anthropocenae
(Kotzé and French, 2018) is required to confront head-on the deep economic-
socio-ecological crisis of the Anthropocene, and will necessarily have to
258 Paulo Magalhães
address and harmonise the interdependence resulting from the shared use of
the same planetary system, as well as the intangible conditions that support
life on Earth. Acknowledging the existing legal regime in the common heri-
tage of humankind (in so far as it is in place), such assets include the seabed
and its minerals, the living resources of Antarctica, existing and restricted (i.e.
privileged) near-Earth orbits, and the celestial bodies of space including the
Moon. These all represent material examples of specific interests in a broader
sphere, and which crystallises the common good around these exact points
(Kiss, 1982).
The possibility of establishing the initial project of common heritage and
defining an intangible heritage without borders at the functional level of the
Earth system depends on humanity’s capability to clearly and precisely define
it. Humanity now faces the moment to take a major step forward in the
development of a new normative concept of the Earth, where the intangible
commons will have a critical role.

Heritage as an integrated and constructive approach

Building a stabilised Earth pathway

Currently, the Earth system is on a temperature pathway, driven by human
emissions of greenhouse gases and biosphere degradation, towards a potential
planetary threshold of ∼2°C. Beyond this threshold the system would follow
an essentially irreversible pathway with a domino-like cascade that could take
it to even higher temperatures. Even if the Paris Agreement target of a 1.5°C–
2°C rise in temperature is met, the risk that a cascade of feedbacks could
push the Earth system irreversibly into a hothouse Earth pathway cannot be
excluded. Humanity consequently needs to develop a pathway that stabilises
the Earth system and changes the current trajectory towards the threshold
that leads to the hothouse outcome. Such a pathway requires deliberate and
collective human action that results in positive environmental outcomes, not
merely the mitigation of emissions, or the avoidance of harm, in order to
create a feedback loop that maintains such a pathway (Steffen et al., 2018).
This presents a major challenge to human societies, and requires action at a
global scale. It is not possible for any one state to achieve this alone, nor
benefit individually as the impacts on a common concern are wide-ranging
and disparate in nature, which makes it effectively impossible to fall back on
old bilateral approaches whereby international responsibilities were norma-
tively fulfilled by unitary states. There is a view that mitigated harm should
result in the benefit of a large part of, if not all, the wider community (Shel-
ton, 2009a, pp. 33–34, referring to Kiss). This perspective highlights the con-
ceptual error of the common concern approach, however. When the harm is
mitigated, the community does not benefit, but rather is less harmed. This is a
central point to question how societies tackle climate change. The hard truth
is that the community only benefits when a positive action is taken that
 The commons as structural support for ESL 259
contributes to enhancing the stability of the Earth system within the safe
operating space. To do less harm is not to produce a benefit. The strategy of
damage containment and burden sharing implicit in common concern results
in a negative sum game in which the total of the stable climate output
decreases. By addressing climate change as one issue/problem to be mitigated,
and not as a common good that must be protected, damages will continue to
be produced, and benefits are only synonymous with the amortisation of
harm. The result is invariably negative.
This is also the framework of the Paris Agreement (United Nations,
2015a), where the removals by sinks of greenhouse gases only exist as com-
pensation, amortisation, or neutralisation of emissions. They are not directly
rewarded and visible to the economy, and thus stay on the margin of any
decision making by governments. A stabilised Earth pathway implies an
emphasis on the reduction of greenhouse gas emissions, as well as of those
activities which result in or increase negative feedback (Lenton, 2016, p. 7);
action must reduce the risk of the Earth system crossing a planetary threshold
and locking in a hothouse pathway (Steffen et al., 2018). Humanity’s chal-
lenge then is to actively influence the dynamical properties of the Earth
system in such a way that the emerging unstable conditions in the zone
between the Holocene and a very hot state become a de facto stable inter-
mediate state (a stabilised Earth). This requires legal support where the
activity of restoring and permanent caring of the Earth system is organised,
framed and rewarded. This should include the definition of the activities that
are recognised as beneficial to the conservation of the climate and the main-
tenance of a well-functioning Earth system, as well as descriptions of the
mechanisms of measurement, defining value, accountancy and compensation
and of the organisational scheme for the permanent management of the use
of this common good.

A legal support to restore a stable climate/well-functioning Earth system

The question has been asked: how can a good that belongs to none be the
subject of a legal regime (Kiss, 1982)? The activities of caring for the Earth
system and ensuring a stable climate (e.g. activities that go beyond achieving
net zero carbon emissions to actually create an environmental benefit by
removing additional carbon dioxide from the atmosphere) represent intangi-
ble, borderless assets and these are not legally recognised, and belong to no
one. Greenhouse gases need to be eliminated, not reduced, and yet the current
economic mechanisms are not designed to pay for negative emissions (Energy
& Climate Intelligence Unit, 2018). Although this is not an issue normally
addressed as such, this is a juridical problem before being a question of
designing economic mechanisms. Who are the beneficiaries that should
receive the benefits of negative emissions? Who should pay and to whom? To
whom does the Earth system belong? Which is the institution in charge of
managing the use of that common good?
260 Paulo Magalhães
Therefore, from a social point of view, these benefits disappear in a global
legal gap, and consequently are invisible to the economy. This structural pro-
blem makes it technically impossible to build an economy capable of produ-
cing the required positive contributions to the recovery of a well-functioning
Earth system, and consequently to maintain a stable climate as well. To be
possible to restore a well-functioning Earth system, it is necessary that this
caring activity is accountable, regulated and becomes visible in the GDP of
countries. This can only be achieved if the concept of value once again finds
its rightful place at the centre of economic thinking (Mazzucato, 2018). Part
of the challenge is to demonstrate to society what roles the biosphere per-
forms in relation to human activity, notably in economic and financial trans-
actions (Folke et al., 2002). This is a question of what is meant by value, and
wealth creation, since value does not exist in and of itself, it is both created
and shaped (ibid.). The underlying implications of the idea that harm miti-
gation will benefit society is that value and wealth creation can be perpe-
tuated, and collateral damage can be reduced; all without changing the socio-
economic model.
In reality, addressing the question of what constitutes a common good
requires integrating the knowledge gained from the bio-geophysical aspects of
Earth system science with the insights the social sciences and humanities
bring to understanding and improving human society (Donges et al., 2017).
The first step for successful management of the commons is the adoption of a
clear definition of the common good (Ostrom, 1990). In other words, the
existence of an intangible global common – the Earth system – has to be
recognised, and the internal relations among all users of the same common
good established, so that all share both the positive and the negative con-
sequences of the acts of one another.
This is logical, given that the biosphere benefits all humanity (Kiss, 1982).
The nature of this common heritage has to be taken into account, however,
notably understanding that heritage is in the form of a trust, with the princi-
pal objectives of using and conserving that heritage for peaceful purposes, in
the spirit of wise use and good management, in order for it to be passed on to
generations to come (ibid.). Any benefits ensuing from that use can be shared
by allocating revenue equitably to current generations (Kiss and Shelton,
2007); nevertheless, the necessary elements need to be to put in place to
ensure that the resources at stake are fully restored. Of course, the restoration
of the common good, or of the common intangible software of the Earth
system, will imply some evolution in thinking to account for its nature, and
making use of the multiple approaches and cultures (Kiss, 1982) that can be
brought to bear on improving, and adapting to, the current situation. The
most important is to give visibility to the positive contributions derived from
the maintenance of the common good, accompanied by incentives, mechan-
isms and balance sheets for contributions to each of its parts. The legal
recognition of a well-functioning Earth system is represented via a safe oper-
ating space and common heritage of humankind. That function is a structural
 The commons as structural support for ESL 261
condition for building an economy that actively restores the common heri-
tage, and which truly serves the interest of the community of states – and
ultimately, all humankind.
Even without attempting an exhaustive study of all the criteria of a legal
regime for the common heritage of humankind, and given that each case has
to be analysed, taking into account the characteristics of the resource in
question, it is still worth recollecting some of the basic criteria, namely: non-
appropriation; peaceful use; international management of heritage resources;
rational use; and equitable distribution of the benefits, which ensue (ibid.). By
applying such a regime to achieve a stable climate and a well-functioning
Earth system, some of positive features of the important work already
accomplished by the Paris Agreement are encapsulated. The previous points
are elaborated below.

Materialising the common interest

The concept of the common heritage requires the materialisation of common
interests in a well-defined object, which constitutes the substance of the
inheritance itself. Using the precise definition of the favourable bio-geophysi-
cal conditions of the Holocene epoch to describe humanity’s safe operating
space, it is possible to consider this well-defined non-territorial space of safety
as a common intangible natural dynamic of the Earth system, to which the
legal status of the common heritage of humankind can be applied.

Concretising the initial project of the common heritage

The environment is not an abstraction but represents a living space, the quality
of life and the very health of human beings, including generations unborn
(Borg, 2009). By assigning legal status to a specific intangible natural dynamic
of the Earth system, it is possible to initiate the embryonic project of the
common heritage, and to distinguish the living space from the territorial space.

Addressing the diversity and complexity of the Earth system as a legal, single
integrated system
By legally addressing the Earth system as single whole – through the recog-
nition of the safe operating space as an intangible common heritage – it is
possible to overcome the problem of fragmentation in addressing specific
issues or elements. This is a critical issue, because if a single process is
addressed in an isolated way (as is still being done with CO2), all the other
critical processes (planetary boundaries) that interact one with another are
ignored, as well as all the feedbacks and domino effects that will happen
throughout the system. If one or some of the planetary boundaries are
transgressed, the risk that the Earth system is driven out of the Holocene
stability rapidly increases.
262 Paulo Magalhães
Benefit sharing vis-à-vis damage sharing
The evolution of the Paris Agreement should lead to the construction of a
regenerative economy. Environmental benefits and burdens are shared by all
persons. The production of benefits in the Earth system cannot be equated with
economic loss. With limitations, nature-based solutions (the work of the bio-
sphere) and negative emissions need to become visible in the economy. A con-
gruent system of the rules of appropriation (negative impacts) and of provision
(positive impacts) is a structural condition for the successful management of
the commons (Ostrom, 1990). An equitable system of benefit sharing is already
one of the elements of the common heritage of humankind that can be devel-
oped into a true system of accounting relatively to this intangible heritage: the
legal framework for the emergence of a regenerative economy.

Defining global, shared governance

It is clear that the activity of caring for the Earth system and restoring a stable cli-
mate requires a new legal framework. This needs to define the rights and obliga-
tions that emerge from actions to improve and maintain a well-functioning system,
while also establishing a collaborative framework for distributing the efforts and
rights ensuing from those actions. This should include definitions for the activities
recognised as being beneficial to the conservation of the climate and a well-func-
tioning Earth system, as well as the mechanisms of measurement for the determi-
nation of values, methods of accounting and compensation, and identifying the
entity responsible for the permanent management of the use of this common good.

A legal framework as a structural condition for convergence

From a historical perspective, there is a disequilibrium of responsibilities
between peoples and states for the exhaustion and maintenance of a well-func-
tioning Earth system. In view of this, the recognition the Earth system in toto as
common heritage can be a decisive step in addressing and regenerating the ulti-
mate global common for present and future generations. Without global legal
support, positive actions of restoration disappear into a global legal gap.
Through an accounting system, including both current and historical contribu-
tions, it is possible to reduce the asymmetries in a proportionate manner through
the direct and indirect restoration or maintenance of the common heritage.

Conclusion
Human societies are an integral part of the Earth system, not an outside
driver perturbing the otherwise natural order (Young and Steffen, 2009).
Humanity’s future depends on its capacity to self-organise its relations around
the use of the Earth system to which it belongs and on which it depends. If
law is to remain relevant in the Anthropocene (Kotzé and Kim, 2019), it must
 The commons as structural support for ESL 263
reinvent itself. It cannot avoid addressing the concept of the commons as
natural intangibles, since it is those intangibles which form the basis of the
bio-geophysical conditions that support life.
The common heritage is particularly daring, perhaps even unrealistic. How-
ever, this unrealism could be the most realistic way of looking at the future of a
humanity where non-renewable resources are given up once and for all and
where there is an imperative to manage them together for the benefit of present
and future generations (Kiss, 1982). The pattern of stable and predictable
dynamics of the Earth system corresponds to a stable climate and a resilient,
well-functioning biosphere – humanity’s most valuable asset. This truly common
good without borders can be renewable and maintained, if the work of the bio-
sphere is made visible in society, and in the economy. To conclude, as others have
observed before (Voigt, 2014) international jurisprudence has one single, real
interest: the survival of humankind, which is grounded on equity, sustainable
development, and the rule of law.

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Part V
Plotting the course of Earth
system law

This Part addresses the three-fold set of thematic questions raised in Table 1.1
from the perspectives covered in the previous chapters, and comments on the
gaps, tensions and silences raised, providing pointers to the future of ESL.

DOI: 10.4324/9781003198437-19
15 Conclusion
Plotting the course of Earth system law on
the precipice of the Anthropocene
Margot Hurlbert, Andrea C. Simonelli and
Timothy Cadman

Introduction
Law, often regarded as a durable social structure, has historically provided
stability, certainty, and predictability in the ordering of social relations (pre-
dominantly between humans). Historically, the law has been preoccupied with
human and Earth relations, those of property and the exclusion of other
humans from Earth’s precious resources. However, in past decades, the rela-
tionship between humans and the Earth has received focus and there has been
increasing recognition of the standing of the Earth, of Mother Earth, in her
own right. Law, albeit one social system, is an important institution of dur-
able quality increasingly important in solving pressing problems in the
Anthropocene and in relation to governance of the Earth system. Rights now
include inherent rights of the environment (flora and fauna; biotic and abiotic
systems) and recognition of the multiple and overlapping relations of the
Earth system. A new era of law has recently emerged, challenging the closed
autopoietic system of law and marking a new era. The Earth is standing on
the praecipe of the Anthropocene and imaging what, who, and the how of
ESL in the Anthropocene.
Law and the Earth system, situated as they are within the planetary realm,
are the focal points of this book (even if some authors also, justifiably, take to
the heavens). Departing from the premise that humans are separate from or in
control of nature, humans are a part of or one species among many in the
conception of this book. However, humans are unique in their ability to
intentionally shape the Earth system. In the age of the Anthropocene, how
this dynamic will shape, or how humans will be shaped in the era of the
Anthropocene, is of key concern. Interdisciplinary and transdisciplinary in
nature, this book interrogates law with legal scholarship, but also within the
disciplines of political science, anthropology, economics, ethics, sociology and
psychology. Involving other stakeholders, decision makers, and actors in the
study, analysis, and reflection about law’s place in addressing the issues of the
Anthropocene, ESL of necessity becomes transdisciplinary.
The chapters of this book reflect the early state of an exciting and emerging
dynamic field that is benefiting from bottom-up diverse and individualistic

DOI: 10.4324/9781003198437-20
270 M. Hurlbert, A.C. Simonelli and T. Cadman
development. In Part I, a range of analytic frameworks is offered for advan-
cing ESL. The book is lex ferenda, oriented to law in the future, not law as it
is now or as it has been (based on jurisprudential law), but law standing on
the precipice of the Anthropocene. This book’s conception of ESL is as it can
and should be in the future. This is a call for planetary-inspired ESL. In this
book, ESL emerges, challenging the closed auto-poetic system of law, mark-
ing a new era in law and society scholarship. This book has introduced a
complex and non-linear conception of law. Although answers are provided,
many questions still remain. The geography of ESL is both local (Mexico and
Uganda) but also global, and extra-terrestrial. It has sub-system cycles
(atmosphere, lithosphere, cryosphere) as well as social-ecological systems.
In this concluding chapter, the major themes are reviewed, uniting ideas
arising from the chapters of the book, and we imagine their expansion.
Building on each of the three parts of the book, the analytical, normative and
transformative dimensions of ESL, this chapter offers a pathway forward for
ESL, its practice, advancement and scholarship.

The analytical dimensions of ESL

In the analytic context, ESL is uniquely characterised by its expansion. It is
much more than the narrow existing disciplines of law (property, tort, con-
tract, etc.), the jurisprudential methods of law (analysis of doctrinal law, court
cases, statutes, etc.) and traditional legal concepts (foreseeability, precau-
tionary principles, and conflict resolution). The analysis of ESL entails a
much broader conception of the law system, a vast expansion of which soci-
etal relations and structures are important in its analysis, and a multiplicity of
methods and approaches from which to embark upon its analysis. After a
brief review of each of the analytic chapters, the unifying characteristics of the
analytic dimensions of ESL and its future study are summarised.
In Chapter 3 by Walter F. Baber, ‘Earth system law in the age of human-
ity’, a framework is created featuring new opportunities for protecting the
environment and an accompanying analytic for measuring the opportunities.
Baber’s unifying systems analogy of law is the mythology of Eros, the pri-
mordial god of desire who brings forth the Anthropos race. Baber points out
the links in this Greek mythology, the current human relations of consump-
tions that are tied to desire, and the required intervention of Gaia to re-
establish grounded relations. This mythology is apropos as ultimately an
iterative and reciprocal relationship between environmental and human rights
NGOs, and university-based researchers, is called for.
Baber also grounds his methodological analytical framework in current
legal scholarship. The most dramatic example of an Environmental Rights
Opportunity Structure (EROS) identified by Baber is the wave of environ-
mental constitutionalism that has resulted in the entrenchment of the right to
a clean, healthy, sustainable environment. This chapter traces this EROS
using Uganda as a case study. Three basic categories of factors determine the
 Conclusion 271
opportunity to assert environmental rights – institutional factors, social fac-
tors and a nation’s normative commitments. These factors provide an analytic
framework or a tool for identification of weakness in advancing environ-
mental human rights.
In Chapter 4, ‘International Relations and the analytical foundations of
Earth system law’, Mike Angstadt argues for an expansion of law to include
social science insights beyond the legal discipline. He suggests ESL should
expand with International Relations and global environmental politics, and he
criticises narrow existing disciplinary divides. Changing legal paradigms
through norm contestation, advanced through the actions of norm entrepre-
neurs, could secure environmental norm implementation. Such an approach
addresses the shortcomings of anthropocentric, short-termist, introspective,
utilitarian and neoliberal environmental law, which has become increasingly
specialised. Emphasis on process, participation and propagation of ESL is a
method of incorporating and integrating these new elements to engender a
new ESL for the Anthropocene. Theoretical precision, advocating for diverse
engagement, seeking practitioner input, and practice-relevance ground ESL in
existing insights from disciplines of International Relations and international
law. New elements include wild law, planetary boundaries and global envir-
onmental law and their addition incorporates greater systems-level awareness
of human impacts contributing to an interdisciplinary project, a more holistic
and equitable approach to ESL and governance.
In Chapter 5, Edgar Fernández Fernández reimagines ESL to expand
geographically and include Earth’s safe operating space. Current mismatches
of international environmental law to address challenges posed by the capa-
city of humans to provoke changes in key processes for the functioning of the
Earth system are potentially remediated by integration with Earth system
science. Including nonlinearity, teleconnections regarding the Earth as a
single complex system and contemplating new and different scales of human-
driven change are promising considerations for a new ESL and recognition
that humanity has left the Holocene. Recognition of thresholds, abrupt
change, tipping points, possible catastrophic and irreversible consequences for
human societies, and the fact humanity is in a no-analogue state lay the
foundation for a new envisioning of law. One of the most important aspects
of the Anthropocene is recognition that the Earth is not an equilibrium-
centred paradigm, there is no single stable Earth equilibrium, and no envel-
ope of well-buffered global stability.
In Chapter 6, ‘The ESL framework: re-visioning in the age of transforma-
tion and the Anthropocene’, Margot Hurlbert argues for a reimagination of
law and its science, or multiple sciences with new concepts, theories and
modes of understanding from many disciplines. ESL and its study move
beyond the objectivist positivist examination of law to recognise the reality of
law as a social system, a living law, that is simultaneously constructed,
experienced, argued and described by the individual. By recognising and
joining multiple epistemologies, the reality of human and nature relations
272 M. Hurlbert, A.C. Simonelli and T. Cadman
exists simultaneously with constructed knowing and knowledge in a pluriverse
where there is room for uncertainty and space for imagination. In this imagi-
native pluriverse, aspects of the ESG framework, including architecture,
democracy, allocation, anticipation and adaptation, can be studied positivis-
tically and jurisprudentially, while agency, power, justice, imagination and
reflexivity arise through constructivism. This co-existing dualism adds
dimensions to the lenses of diversity, inequality, transformations and finally
the Anthropocene. Unapologetically interdisciplinary and embracing ontolo-
gical pluralism, ESL in the Anthropocene is conceived by Hurlbert as an
enduring social structure regulating human interactions and human species
interactions as well as constituting a living law that adapts and changes.
Approaching ESL from multiple epistemologies, methodologies and perspec-
tives allows Earth’s complex problems to be addressed in the epoch of the
Anthropocene.
The four chapters in the Analytical Dimensions of ESL are united in
viewing this emerging discipline as fundamentally a system. Law is an
important enduring institution in humanity’s socio-ecological system that is
constituted by the Earth and social processes and coupled human and natural
systems which address the environment and society, not as independent enti-
ties but as systems characterised by complex dynamics and mutual influences
(Carlisle and Gruby, 2019). Because of this, the analysis of ESL consists not
only of the analysis of laws, rules, court decisions and their impact, but also
consists of social institutions. including Baber’s institutional factors, social
factors and normative commitments, Angstadt’s environmental norms, and
their process of dissemination, participation of people in their implementa-
tion, and their propagation. Natural system components are also part of the
analytic dimension and include Fernández Fernández’s call for law’s recogni-
tion of thresholds, abrupt change, tipping points through the use of concepts
of nonlinearity or teleconnections (the interrelation of climatic anomalies over
long distances and social teleconnections including flows of capital, people, or
goods (Oberlack et al., 2018)) Uniting features of these chapters that signify
way markers for ESL in the future appear in Table 15.1.
Chapters in this analytical dimension Part I represent multiple disciplines
of law, including property law (in Warner’s reconception of land and property
in the normative dimension below), pollution and environmental regulation
(in Lopez Porras’ chapter discussed below), international law and environ-
mental law (both Baber and Angstadt’s chapters). In addition to combining
and expanding the ambit of law and its study, these chapters explore a pur-
pose beyond that envisioned before. ESL is more than conflict resolution and
more than what has previously been expressed as the precautionary principle
(a guiding principle preventing activities that are a threat to the environment
even in the absence of scientific proof (Stefánsson, 2019)). ESL moves far
beyond jurisprudential considerations (Kotzé and Kim, 2019) when it con-
cerns itself with planetary risk expressed by Fernández Fernández (a con-
sideration of Earth’s safe operating space), Angstadt’s analysis of law and
 Conclusion 273
Table 15.1 Analytical dimensions of Earth system law
Analytic expansion of Earth system law
The system  Complex human nature, socio-ecological and legal
systems
 The Greek mythological system of Eros and Gaia
The disciplines  Beyond disciplinary environmental, international,
property, water, etc. law
 Including wild law, planetary boundaries
 Including ecology, social studies, sociology, interna-
tional relations, global environmental politics
Theoretical frameworks  The Anthropocene of co-existing dualisms
 Ontological pluralism and multiple epistemologies
Methodological  Jurisprudential positivist legal analysis including the
frameworks architecture of closed legal systems and specialised
actors, the exclusion of Indigenous rights by public
interest-based tribunals, the Earth commons advancing
the diversity of legal systems
 Constructivist law and society analysis where living law
of water rights address drought and inequality, expan-
ded standing for diverse climate lawsuits and Anthro-
pocene river rights, the inequality of distribution of
environmental harms to marginalised peoples, and
transformation of distribution of Earth’s resources
Translation  Evidenced and measured by environmental con-
stitutionalism, institutional factors, social factors, nor-
mative contestation, commitments, and
implementation, changing legal paradigms
 New interdisciplinary conceptions including recogni-
tion of thresholds, tipping points, irreversible con-
sequences, ultimately risk

planetary boundaries (Pachauri et al., 2014; Rockström et al., 2009; Sánchez-

Bayo and Wyckhuys, 2019), Baber’s tragedy of Eros, desire, and the Anthro-
pos race, and, for Hurlbert, the very real risk of climate change. The over-
arching norm, order or rule – the grundnorm, or basic norm, of Kelsen’s Pure
Theory of Law (Kelsen, 1949) – that forms the underlying basis of ESL is that
of addressing risk: risk in the era of the Anthropocene.

The normative dimensions of ESL

In the normative dimensions of ESL, a common uniting feature is environ-
mental justice. Here the ESL community and the authors of the chapters
include multiple links with social movements and legal campaigns for free
and fair access to natural resources, as well as animal rights, plant blindness,
274 M. Hurlbert, A.C. Simonelli and T. Cadman
and a deep consideration of the implications of geoengineering for climate
change mitigation and rewilding for biodiversity regeneration. The normative
dimensions of ESL re-consider justice. As Hurlbert’s Chapter 6 points out,
justice is much more than that of the closed, self-referential system of law
envisioned by Luhmann (2004), but ESL and justice expand beyond the spe-
cialised actors and legal institutions. Justice looks very different when the
Earth is the starting point and people’s relationships with each other, but also
with the Earth as central to legal considerations. But justice is tricky and
dauting to define (Hurlbert, 2018). In addition to jurisprudential environ-
mental justice redressing environmental harms, ESL expands the ambit of
legal standing and agency. Considerations of who are rights bearers and who
has legal standing, or recognition justice, are also supplemented with dis-
tribution justice, or how Earth’s resources and hazards are distributed, felt
and shared. After a brief recounting of the main normative dimensions of the
authors, this chapter draws connections and implications for ESL’s normative
dimensions.
In Chapter 7, ‘Rights of nature as an expression of Earth system law’, Alice
Bleby repudiates the idea that humans are masters of nature and believes this
idea is an initial requirement for normative ESL. This idea seems to challenge
the recognition that humans have the power to create the Anthropocene and
to necessarily solve global climate change. But humility, along with consider-
ing interconnected interests, and interrelationships of the whole Earth system
and its complexity are solutions. Human activities should be evaluated based
on their impacts on nature. A planetary perspective is fundamental in Earth
systems law, as well as the central tenet of the responsibility of humankind for
the degradation of the Earth system on a planetary scale. Bleby skilfully
prioritises a planetary perspective and much-needed cross-pollination between
rights of nature and ESL.
In Chapter 8, Rosalind Warner in ‘The ethical place of the non-human
world in ESL: pathways of transformation’ argues the ethical community of
law in the Anthropocene includes the non-human world. Law’s ability to
articulate alternatives to the human and non-human relationship allows ESL
to be something distinct from international and environmental law. Warner’s
proposal includes introducing concepts aligned with Earth jurisprudence and
introducing a novel legality in the form of mutual eco-centric human and
Earth enhancement, the development of Earth rights and the reconceptuali-
sation of property and land. Underlying this is an Earth-centric legal philo-
sophy in accordance with the philosophical approach of Earth jurisprudence.
Earth jurisprudence overcomes obstacles that have been encountered by
environmental and human rights law that to date have failed to transform the
law. Three different modes of change are identified, including environmental
constitutionalism (decentring the priority of the human), continued and
extended greening of human rights (requiring humans to respect the right of
nature to exist, or to incorporate analogous rights for the non-human) and
increasing synergies among diverse regimes of international law (such as those
 Conclusion 275
reflected in the United Nations Declaration for the Rights of Indigenous
Peoples (United Nations General Assembly, 2007)).
In Chapter 9, Brita Bohman in ‘Legitimacy and the role of law for
social and ecological resilience’ proposes a framework of important legal
mechanisms to create the capability to advance ecological resilience within
the epoch of the Anthropocene. The framework of adaptive management and
socio-ecological resilience advances law’s capacity to address pronounced
environmental complexity.
For Andrea C. Simonelli, in Chapter 10, ‘Climate (im)mobilities in migra-
tion governance and law: integrating an Earth systems perspective’, the
Anthropocene is a narrative completely dominated by natural science, mask-
ing local, regional and social science in solutions. However, rethinking law in
the context of the Anthropocene allows law’s link with ESG and planetary
systems, including flora and fauna, and consideration of far more complex
environmental disruptions, specifically surrounding migration. Normative
reforms inclusive of human and ecological systems, ESG and law could address
gaps including sovereignty and self-governance, social and environmental justice
for migrants and cultural loss.
The normative re-ordering of ESL these chapters envision is very different
from previous legal normative ordering and is summarised in Table 15.2.
There is a transition, an expansion of persons, entities and agents with legal
standing. The who and what standing on the precipice of the Anthropocene
are fundamentally different from historical legal standing. This legal
advancement is already occurring as described in Hurlbert’s chapter describ-
ing the Te Awa Tupua River Basin with legal standing in her discussion of
allocation rights and justice. This expansion allows a normative re-imaging of
ESL that honours the Earth and all her inhabitants and components.

Table 15.2 Normative dimensions of Earth system law

Normative re-ordering of Earth system law
Who and what is standing  Expansion to the non-human and nature (increas-
on the precipice of the ing the legal tent); including inter- and intra-
Anthropocene? generations
 Legal relational test: reserving Earth balance, or
eco-centric human and Earth enhancement
considerations
Legal governance in the  Polycentric law and legal institutions for Anthro-
Anthropocene pocentric risk reduction
Legal memes in and for the  Environmental constitutionalism, greening of
Anthropocene human rights, increased synergies in international
law, participation of people in law
Honouring Mother Earth  Mother Earth provides food, clean water sources,
materials for living – and teaches what we need to
know to take of her
276 M. Hurlbert, A.C. Simonelli and T. Cadman
Chapter authors are diverse in the who and what that are involved in the
widening tent of legal actors. Bohman argues passionately for recognition of
inter- and intra-generational rights. For Bleby, nature has rights. Warner
argues that the non-human world should be added to the legal system. It has
long been argued by academic scholars that trees should have rights and legal
guardians/advocates appointed to represent their interests in legal proceedings
(Bryant, 1975).
Bleby and Warner offer advice in relation to how to weigh and rank inter-
ests once the legal tent of the Anthropocene is expanded. For Bleby, the legal
test is preserving the balance of the ecosystem, therefore non-humans should
be free from harm, or have limits on their use that is necessary to ensure this
balance. Warner has a different legal test: interests between humans and non-
humans should be determined through a lens of eco-centric human and Earth
enhancement. Added to these contributors’ chapters could be the concept of
planetary boundaries. ESL could establish, encourage or enforce just and
sustainable limits in the use of Earth’s resources or their degradation. Further,
normative ESL practices could allocate Earth’s resources fairly using a Raw-
lsian veil of ignorance wherein one’s own personal life situation is set aside,
and considerations of decision making focus on the neediest (Norton, 1989).
As set out by Hurlbert’s chapter, limits of resource use and distribution could
be arrived at through decision making inspired by thought experiments sur-
rounding global, regional and local resource distribution and fairness.
Inherent in this expansion of standing is a reconceptualisation of legal
governance for the Anthropocene. As many authors have identified in this
book (Angstadt, Bohman, Warner, Magalhães), environmental law and
international law have not proved worthy and have failed to resolve environ-
mental degradation and conflict, nor prevented or resolved conflict at the
advent of the Anthropocene. It is here that not only must land and property
law be reconceptualised, as argued by Warner, but so too must ideas of legal
jurisdiction, state sovereignty, and self-government. Simonelli aptly identifies
this reconceptualisation in the context of the migration of people. Bohman
argues for the participation of people in ESL. Uniting, but also going beyond
individual chapters, an even wider consideration of boundaries and jurisdic-
tions whereby legal governance would become polycentric, is required (Car-
lisle and Gruby, 2019) Originally developed in 1961, Vincent Ostrom
envisioned a polycentric political system as composed of many autonomous
units formally independent but choosing to act in ways that take account of
others through processes of cooperation, competition, conflict and conflict
resolution.(Ostrom et al., 1961; Ostrom, 1991; Smith, 1993) Instead of inter-
national rules of soft law, adoption by nation states of international agree-
ments, and legal opinions of effectiveness of treaties, thus enabling polycentric
legal governance, would simultaneously reflect the international obligations of
the United Framework Convention for Climate Change or the Convention on
Biological Diversity, nationally, regionally and locally. All people on Earth
would simultaneously be local, national and cosmopolitan citizens affecting
 Conclusion 277
international climate change and biodiversity commitments. Similarly, Indi-
genous local and regional laws of honouring Earth identified in Hurlbert’s
chapter, would also apply globally. In this new polycentric legal governance,
property law could be reformulated as a web of interests instead of a bundle
of rights with powers of exclusion. This re-conception of law would facilitate
the consideration of the interconnected social and ecological conditions in
which property issues arise, and the impacts of various property alternatives
for communities, social systems and ecosystems (Arnold, 2002). Functional
polycentric governance systems in the Earth Commons would enhance the
adaptive capacity of natural and social systems, while decision making and
the participation of all people in the international agreements would also
mitigate risk in the protection of the Earth’s resources.(Carlisle and Gruby,
2019) This epitomises meaningful participation and productive deliberation in
global environment governance, with participation and deliberation as struc-
tural and procedural conditions, thereby constituting a ‘sturdy bridge from
science to policy’ for the Earth’s inhabitants (Cadman, 2011, p. 4; Simonelli,
2016, p. 150).

Transformative pathways of ESL

The chapters in the transformative pathways of ESL are united in their
audacious imagination of a new order for the legal system, an ESL that is
fundamentally different from what law has been before. Both demonstrating
the principles of the analytic and normative dimensions of ESL, these chap-
ters extend thinking around law and its system (Lopez Porras), advance the
pluralism of ontology (Cirkovic), theoretical and methodological frameworks
(all chapters), provide new translations (Magalhães, Cirkovic), elaborate on
who and what are standing on the precipice of the Anthropocene (Nyka,
Magalhães), expand on legal governance (Magalhães, Lopez Porras), legal
memes, and honouring Mother Earth (Cirkovic, also Hurlbert, above).
Arguing for a transformative ontology, Elena Cirkovic points out in
Chapter 11, ‘The Earth system, the orbit, and international law: the cosmo-
legal proposal’ that the regulation of relationships among all Earth system
components is made difficult by legal fragmentation and conflict of laws and
is demonstrated by the analysis or regulation of individual components.
International legal government organisations need to address emergent beha-
viours that are not always predictable. This chapter argues for a high-order
concept, the cosmolegal proposal, an ontological transformation of law as it
is currently understood. The cosmolegal is a more plural and flexible ongoing
development in the human self-assertion. This conception goes beyond pla-
netary perspectives considering a solar system perspective, an adjustment to
the advent of the Anthropocene. An apt ending for a book arguing for a new
neologism, this chapter offers a number of signposts or new ways of under-
standing law and legal studies, fleshed out by law surrounding orbital debris
and the Arctic. The definition of the Earth as a system cannot have its
278 M. Hurlbert, A.C. Simonelli and T. Cadman
biological, geological, atmospheric hydrological cryo-spheric, climate systems
placed within a legal silo as in the way law currently functions.
Illustrated with the example of outer space, the cosmolegal would facilitate
cooperation and interaction among different disciplines and knowledge, includ-
ing an opening for contingencies provided by the agency of non-humans and
other dimensions/spaces where humans seek to extend their activities and life.
The two methodological toolsets of doctrinal and theoretical analysis of existing
law could be employed. Finite disciplinary absolutes would not be presented, but
instead raise possibilities, through a combination of social sciences with natural
sciences, allowing for an understanding beyond ontologies of spheres or levels,
and challenging the nature and culture divide. This opens a space for Indigenous
ontologies and a multiplicity of paths and histories as well as the situatedness of
time. The cosmolegal also offers a new imagination within the existing anthro-
pocentric conceptual structures, but with novel responses, adaptations and legal
modalities going beyond the human-centric model.
An assessment of Mexico’s current water law by Gabriel Lopez Porras, in
Chapter 12, ‘Integrating the Mexican water law into the Earth system law per-
spective’ illustrates law’s many shortcomings. Remedies include advancing prin-
ciples of subsidiarity to advance decision making at the proper level and
allowing legal flexibility to adjust local regulations to face complex and uncer-
tain socio-economic and environmental effects (adjusting legal rights). and these
are just a few of the recommendations. Policy instruments are recommended to
prevent crossing of planetary boundaries in relation to freshwater use, including
water use monitoring, pricing and regulation, strengthening property rights and
establishing new protected areas. As telecouplings are context-specific, regula-
tions should be iterative, flexible and locally appropriate. Leveraging existing
Mexican official standards and water management programmes could enable an
ESL approach and allow designs to establish limits and regulations on water
access to achieve justice surrounding freshwater systems and limit telecouplings.
Integrating the Mexican water legal framework into the ESL perspective could
be achieved through increased participation and involvement of civil society.
Strategic litigation and changing the way universities teach environmental law
also have an important contribution to make.
Maciej Nyka, in Chapter 13, ‘A framework of Earth system justice in the
Earth system’s legal context’ summarises the normative dimensions of envir-
onmental justice and uses these to build a transformative vision of ESL.
Using recognition, procedural and distributive justice principles and including
intra- and inter-generational rights, Nyka links ecology issues with economic
development and frames sustainable law. A framework of subjects, harms,
mechanisms and responses illustrates the four components of recognition
justice. Applying such a framework transforms law to reflect ESL and gov-
ernance by and for all living beings. Mechanisms include financial support for
environmental protection in undeveloped countries, environmental protection
law, protecting diversity through the Nagoya Protocol, and participation of
people in ecosystem-based management.
 Conclusion 279
For Paulo Magalhães, in Chapter 14, Earth System Science enables human-
kind to formulate a new conceptualisation of the planet – the physical one and
the intangible one of the Earth system – which is a common good, independent
of artificial geopolitical division, operated by political territorial borders of
nation states. A legal framework as a structural condition for convergence that
recognises the Earth system as common heritage addresses the global legal gap
in addressing climate change and the Anthropocene. The intangible well-func-
tioning Earth system can be thought of as common heritage. The safe operat-
ing space provides the technical conditions to support life and define with
precision a common good. A clear definition of the common good and
common heritage is required. Then the criteria of common heritage can be
applied in a legal regime addressing the Earth system as a single whole. This
new legal system affects principles of non-appropriation, peaceful use, interna-
tional management of heritage resources, their rational use, and fair distribu-
tion of the benefits that can be drawn from them. New instruments are needed
to bridge the gap between this new theorisation and its reality. Benefits sharing,
along with damage sharing, can build a regenerative economy.
The chapters in the transformative dimensions of ESL section embody four
central connections. First, there is a predominant narrative of law being
adaptive. Very different from the precedent setting, inflexible, traditional and
predictable nature enshrined for centuries in the rule of law, the ESL is flex-
ible (Hurlbert, 2015). It is timely, responsive and adaptive. In short, law as a
legal system begins to take on the dimensions of adaptive ESG. For example,
it is responsive, facilitating flexible discretionary decision making (as outlined
by Lopez Porras in relation to water laws responding to change quantity and
quality conditions), it is open to a variety of problem frames (such as
Magalhães describes the global commons, common heritage and common
concern), it learns (illustrated by the agency of Cirkovic of non-humans in the
frontiers of outer space and the deep sea), and it aims for resilience in its
social and ecological systems (Magalhães and the incorporation of planetary
boundaries and safe operating spaces). In water law and governance, adaptive
soft measures embrace a broader understanding of human perspectives, and
participatory dialogues (including Indigenous perspectives and interconnec-
tions with energy and food) and result in the social learning needed for
transformative change (Pahl-Wostl, 2020). These transdisciplinary, transfor-
mative pathways and dimensions are laid out in Table 15.3.
This adaptive law is embodied in an adaptive legal system where legal
processes are no longer linear with all conflicts resolved in a process of adju-
dication and bureaucratic administration. Decisions, including legal decisions,
impacting the environment and socio-economic systems would be feedback
loops evaluated in outcome and impacts. Administrative law would be
reformed from a front-end system to a back-end system that would allow
agencies not to make all decisions at the outset, when permits and approvals
are issued. Instead, these permits and environmental impacts would be asses-
sed cyclically, allowing for changes and variances.
280 M. Hurlbert, A.C. Simonelli and T. Cadman
Table 15.3 Transformative pathways and dimensions of Earth system law
Transdisciplinary transformative Earth system law
Adaptive law systems  Adaptive legal systems respond in a timely manner
to changing Earth conditions, such as water
resource changes, safe operating space changes,
changes in outer space and the deep sea, etc.
Gargantuan change  Fundamental shift in legal world-views with water
and global commons, cosmolegal, descriptive and
prescriptive Earth system legal justice
Reimagining the power of  Cognising power in all relations of Earth system law
Earth system law  Identifying trade-offs, winners and losers
Living the law  Transformative Earth system law pathways involve
people, time spans, and the Earth

All imaginations of transformative ESL involve gargantuan change. Trans-

formational change is more than mere incrementalism (Fedele et al., 2019),
which will not be enough. Deliberate interventions and processes that purpo-
sefully are implemented by a range of actors are necessary for pursuing major
change (Few et al., 2017). In this way, ESL must surpass incrementalism and
transition into the Anthropocene. ESL must create enabling approaches that
focus and support the creation of novel pathways for the social, political and
cultural changes involved in mobilising grassroots movements and alliances
(Smith et al., 2014). An example is the open source legal rules for seed inno-
vation, cooperative business models and fair-trade certifications that foster
agricultural diversity and combat monolithic intensive crop and animal pro-
duction (Scoones et al., 2020). Readers may argue that each of the transfor-
mative chapters are imaginaries and hardly capable of real implementation,
even with the legal translations and instruments the authors have provided.
However, this synthesis of transformative dimensions of ESL argues that with
great change comes great imagination. Underlying these gargantuan changes
are also re-imagined power relations of ESL.
Re-imagined power requires a legal methodological underpinning in jur-
isprudential law. Instead of resolving conflict and applying legal rules to arrive
at the correct legal interpretation of an issue, or application of laws, the legal
discipline changes. In Earth system legal analysis, not only are previous legal
analysis techniques employed, but also a new relational analysis. Transforma-
tional change involves fundamental changes in structural, functional, relational
and cognitive aspects of socio-technical-ecological systems that lead to new
patterns of interactions and outcomes (Patterson et al., 2017). In short, Earth
system legal change involves changes in legal power. Reimagining ESL involves
reimaging the space and content of ESL as envisioned in Figure 15.1.
Reflecting the analytical dimensions, ESL is a system, existing in the con-
text of the Earth. It has multi-scale dimensions in time, space and institution.
 Conclusion 281

Time

Also future
generations

Reponsibility

‘Only the
present
Precaution Least harm
generation’
Procedural justice Legitimacy
High-End
Independence Climate Integrity
Change
Robust World
Standing
Knowledge
Distributive justice Sufficiency

‘Only humans’ ‘Only individual ∕ local Global

national interests references Space
Fairness and contexts’ and systems
Also the
non-human
world

Recipients of moral
consideration

Figure 15.1 Earth system law’s expanded cognitive and moral framework
Source: Based on Tàbara (1999).

ESL reflects the normative dimensions of expanded recipients of moral con-

sideration, including future generations. This envisionment allows the living
to re-imagine law, to effect law’s gargantuan change and transformation. This
book has explored, and answered some, but by no means all, the questions
that the practice of contemporary law and legal studies raises, regarding the
Earth’s interconnected biological, geological, and physical systems. Moving
forward, exploring the spatial, moral and temporal pathways of ESL raises
yet more, new questions:

1 How do legal decisions impact relations – relations of people and people

and people and the Earth and all its components?
2 How do legal decisions impact the power exercised between relations of
people and the Earth?
3 How do legal decisions impact in the near term, medium term and long
term and these relations? These relations include those living now and, in
the future, (to effect generational justice).

Consequently, re-imagining the law, and power relations in ESL is descriptive,

prescriptive and explorative. In tackling inequity and injustice, ESL is the
282 M. Hurlbert, A.C. Simonelli and T. Cadman
radical change addressing underlying causes of social vulnerability that
advances justice in the Anthropocene (Few et al., 2017).
In conclusion, law needs to adopt an action-oriented process, which reflects
solution-pathways that are a means to an end, not an end in themselves, and
which seek to transcend current approaches (Fazey et al., 2018). For ESL,
this will entail redrawing and changing entrenched patterns of competition
and dominance in resource allocation laws (Budds, 2004). It will also advance
endangered species protection through actions which actually protect species,
monitor and evaluate their well-being thereafter, and change the regulations
and practices needed to ensure continued protection. It will advocate on
behalf of planetary systems, which currently have no voice. ESL will involve
many people, but especially Indigenous people and local communities, in
transformative change, embracing plural ontologies and understandings
which lead to more inclusive action for a just and sustainable future (Lam et
al., 2020). But most importantly, ESL can build pathways for people, places
and things (both tangible and intangible), in transformative change towards a
new universal ethic across time and space.

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Index

A 179, 192, 202–203, 217, 221, 231,

Abbott, 64, 68, 179, 243 233–235, 241, 249–251, 258–259, 262,
Abel, 162, 224 264, 271, 282
Abernethy, 238, 243 actionable, 222
Abeysinghe, 107 actionless, 168
abilities, 26, 34, 37–38, 77, 99, 101, activism, 25, 34, 36, 54, 140, 228
129–130, 132, 138, 140, 155–156, 166, activist, 22, 24, 39, 50, 128, 175, 234
173–175, 177–178, 209, 228, 232, activity, activities, 7, 16, 44, 72, 74–78,
234–236, 250, 254–255, 269, 274 80–81, 83, 85, 98, 115, 117, 119, 130,
Abingdon, 201 134, 148–149, 153, 157, 159, 170, 172,
abiotic, 205, 269 178, 185–194, 196, 200, 203, 205, 207–
Aboriginal, 105, 125 209, 211, 214, 217, 219, 231, 234, 245,
Abrol, 283 253, 257, 259–260, 262, 272, 274, 278
absence, 36, 39, 48, 75, 80, 198, 211, 216, actor, actors, 8, 15, 18, 22–24, 59–61,
231, 255, 272 65–66, 72, 92–93, 102, 111, 115, 118,
absolutes, 194, 278 150–151, 153–154, 157, 169, 171, 173,
absorption, 46 175–176, 185–189, 191, 196, 198, 209,
abstractions, 255 219–220, 227, 239, 242, 244, 269,
abyss, 49 273–274, 276, 280
academia, 25, 39, 65, 67, 163, 196, 236 actualites, 202
Academy, 87, 203, 222, 253, 264 Adams, 105
acceptance, 59–60, 63, 66, 115, 151 adaptability, 118, 130, 179
Acció, 283 Adaptation, adaptation, 81, 86, 93,
accomplish, 15–16, 20, 142, 255, 261 99–103, 106, 116, 143, 161, 164, 168,
accordance, 85, 158, 168, 190, 195–196, 173, 180, 186, 197, 201, 209, 222, 224,
236, 274 231, 272, 278, 282
accountability, 10, 68, 93, 95, 105, 151, adaptative, 100
161, 164, 208, 213, 219–221, 243 adaption, 100
accountable, 260 Adaptive, 85, 104, 106, 161–163,
accountancy, 259 280, 283
Accusations, 231 adaptive, adaptiveness, 2, 4–5, 7–8,
achievement, 49, 213, 228 10, 17–18, 24–25, 27, 83, 87, 90, 92,
ACHR, 167 99–100, 106, 119, 151, 153–155,
acidification, 9, 77, 80, 252 157–158, 162–164, 171, 177, 183, 201,
Acta, 244 206, 208–209, 213–214, 216, 219–224,
Action, 2, 16, 20, 22–23, 34, 37–38, 236, 242, 263, 275, 277, 279
45–46, 50–51, 54, 59, 80, 82, 85, 93, adaptivity, 154, 160–161
97, 100, 104, 115, 118, 136, 144, 150, Additionally, 15, 58, 62, 67, 169, 172,
153, 155–156, 165, 169, 171, 173–174, 229, 241, 251
 Index 285
adjudicate, 37 Aldershot, 263
adjudicate, adjudicators, adjudication, 96 Aldo, 129, 132, 144
adjudication, 62, 279 Alfie, 214–216, 221
administration, 82, 164, 188, 279 Alianza, 224
administrative, 71, 93, 100, 106, 208–211, Alice, 6, 111–112, 114, 116, 118, 120,
219–221, 234, 279 122, 124, 126, 274
admittedly, 38, 41, 200 alien, 238, 240
advancement, 102–103, 107, 170, 193, alignment, 6, 128
270, 275 alleged, 215
advantage, advantages, advantaged, 33, Allen, 66, 71, 86, 107, 153, 163
62, 134, 230 alleviate, 100
advent, 122, 132, 276–277 Alleviation, 243
adverse, 8, 80, 168, 170, 192, 249 Alliance, 94, 106
advisory, 74, 87, 210 Alliances, alliances, 28, 280
advocacy, 34–36, 38, 49–51, 70, 114 Allocation, allocation, 6, 90, 92, 96–97,
Aequum, 264 101–103, 106, 159, 212, 218–220, 229,
aerosol, 77 272, 275, 282
affairs, 46, 68, 70, 98, 167, 181, 187, Allouche, 70
203–204, 228 Almanac, 125, 129, 144–145
Africa, 40–41, 44, 49, 52–53, 135, 242, Altair, 199
247 alternating, 75
agencies, 173, 191, 193–194, 196, 198, Alternatives, alternatives, 52, 178, 213,
279 230, 246, 274, 277
Agency, agency, 6–8, 16–17, 22–29, 90, altitude, altitudes, 186–188
92–93, 99, 102–104, 115, 155–157, Amao, 52
161, 176, 180, 185, 188, 193, 196–197, Amartya, 239
200, 210, 272, 274, 278–279 Amazon, 65, 70, 79
agenda, agendas, 8, 24, 36, 51, 74, 90, Amazonian, 235
111–112, 122, 128, 169–170, 192, 220, Ambassador, 248, 252
227, 234, 248 ambiental, 283
Agents, agents, 3, 18, 20, 22, 60, 71, 94, ambientales, 221–222
112, 122, 136, 196–197, 209, 215, 217, Ambiente, 224
238, 275 ambiguity, 129, 135, 138, 142, 192, 250–251
agonistic, 44 Ambio, 127, 163–164, 263
agreeable, 173 ambition, ambititions, 61, 65, 123, 165
Agreements, agreements, 2, 10, 20, 80, Ambitious, ambitious, 107, 180, 242
84, 86, 101, 104, 106–107, 124–125, Ambrus, 161
161, 163, 167, 175, 177, 179–180, 189, amended, 21, 210
200, 206, 212, 217, 231–232, 243, 246, amendment, 38, 41, 94, 104
256, 264, 276–277 América, 222
Agricultural, agricultural, 78, 99, 175, Americas, 100
217–218, 225, 280 Amherst, 244
agriculture, 81, 207, 214, 216, 218, 245 Amin, 40, 43, 46
agro, 174 Ampliación, 223
Agua, agua, 221–224 Amsterdam, 74, 86, 180
Aguas, aguas, 222, 224, 263 An, 1–9, 15, 17, 19–29, 33–38, 40–52,
ahistorical, 141 54–64, 66–85, 87, 89–107, 111–117,
Ahmed, 177, 179 119–123, 125–132, 134–138, 140–143,
Aho, 113, 126–127 145, 147–150, 152–153, 156–160, 162,
ailed, 44 165–171, 173–178, 180, 185–190, 192–
Akchurin, 139, 144 197, 199–203, 205–211, 213–216, 218,
Akhmouch, 221 220–221, 223–224, 226–227, 229–242,
Akol, 245 244–246, 248–256, 258–263, 269–272,
Alaimo, 193, 201 274–280, 282
286 Index
anachronistic, 27, 29 Anthropos, anthropos, 38, 49–50, 89,
analogue, 76–77, 271 122, 125, 270, 273
analogy, 190, 249, 270 anthroposphere, 75, 210, 216, 218, 253
Analysis, analysis, 4–5, 26, 42, 45, 48–49, Anticipation, 90, 92, 98–99, 101–103,
55, 57–58, 61–63, 78, 83–84, 87, 90, 176, 208, 272
93–98, 104, 106, 114, 130, 134, 138, Aotearoa, 112–114, 117, 122, 145–146
141, 150, 152, 166, 172, 191, 193, 213, apartheid, 106, 230
228–229, 234, 236, 239–241, 245–246, apex, 185
263, 269–270, 272–273, 277–278, appearance, 142, 195, 242
280, 283 applicability, 162, 187, 226
analysts, 63, 67 applicable, 93, 165, 176, 185–186, 196
Analytic, 3, 38, 270–273, 277 Applications, 122, 127, 163, 167, 255
Analytical, analytical, 3–5, 15, 23–27, 31, apportions, 195
33–34, 37–40, 55, 59–60, 62, 66–67, appraisal, 105
90, 138, 143, 163, 226, 240, 270–273, appreciation, 96, 111, 130–131
280 appropriation, 192, 194, 224, 249,
Anarchy, 19, 30 262, 279
ancestors, 141 approvals, 279
ancestral, 198 aquaculture, 65, 164
Anderies, 162 aquatic, 163
Andersen, 34, 52 aquifer, aquifers, 210–211, 213, 220
Anderson, 238, 244 Aquila, 199
Angstadt, 5–6, 16, 24, 55–56, 58, 60, 62, Arab, 200, 247
64, 66, 68, 70, 271–272, 276 Aragão, 73, 85–86, 264
Animals, animals, 9, 23, 28, 71, 113, 117, Aramco, 95
127, 129, 135, 175, 178, 233, 239, 242 arbiter, 18, 22
animism, 200 arbitration, 191, 212
Anisimov, 199, 201 architectures, 67, 176
Anker, 54 Arctic, 8, 190, 277
anomalies, 272 Areas, 9, 17, 22, 33–34, 62–63, 65, 100,
Antarctic, 79 106, 119, 139, 162, 172, 174–175, 177,
Antarctica, 250, 256, 258 210–211, 220, 226, 229–230, 234, 239–
Anthropocenae, 3, 10, 119, 125, 257, 240, 242, 249–251, 255, 257, 278, 283
264 arena, 46
Anthropocene, 2–10, 15–20, 22–30, Arendt, 177, 179
33, 50, 52–57, 69–70, 73, 76, 86–87, Argentina, 94
89–90, 92, 94, 100–102, 105–107, 111– Arguably, 39, 41, 82, 96, 112, 114, 117,
112, 114–117, 119, 121–129, 132, 134, 120, 123, 130, 191, 200
143–146, 148–149, 151–152, 156–161, Arguments, arguments, 34, 64, 85, 95,
163–165, 170–174, 177–181, 183, 201, 113, 121, 132, 136, 139–140, 200, 232
203, 205–209, 213, 222–224, 226–227, Aristophanes, 49
243–246, 248, 252–254, 257, 262–265, Aristotle, 229
269–277, 279–280, 282 Armstrong, 239, 243
Anthropocentric, 6, 56–57, 66, 120, 125, Arndt, 1, 9
127–128, 130, 132–135, 138, 140, 143, Arne, 146
185–186, 193, 195, 197–198, 205, 208, Arnell, 161
211, 221, 271, 278 Arnold, 83, 85, 99, 104, 153–154,
anthropocentrism, 57–58, 115–116, 129, 161–162, 277, 282
132, 140, 195 Arnstein, 236–237, 243
anthropogenic, 1, 16, 19, 28, 80, 89, 171, arrangement, 42, 49, 139, 141, 163, 238,
185–186, 218 242–243
Anthropologists, 96, 125 Arrhus, 135
anthropomorphic, 23 Artemis, 200
anthropomorphisation, 96 Arthur, 161, 179
 Index 287
Artic, 78–79 Baird, 10
Article, 2, 116, 118, 128, 136, 144, 189, Baker, 130, 144
192, 210–211, 232 Balfour, 95, 105
Arvid, 252, 254 Baltic, 162
Asia, 53, 79, 100, 135, 242 Banda, 100, 104
aspects, 55, 76, 94, 135, 150, 156, 165, Barakat, 107
167, 192–194, 211, 229, 232–235, Barkun, 91, 104
237–242, 260, 271–272, 280 Barnes, 154–155, 162
aspiration, 8, 134, 226 Barnosky, 87, 107, 265
Assadourian, 36, 52 Barreira, 264
Asselt, 2, 11 Barrier, barrier, 1, 10, 103, 139
Assessment, assessment, 58, 68, 98, 101, Barriers, barriers, 24, 27, 29, 66, 138,
222, 237, 242, 278 140, 164, 194, 223
Assessments, 120, 157, 175 Barros, 201
asset, assets, 155–157, 160–161, 176, Barry, 105, 181
202–203, 244, 257–259, 263 Bartlett, 33, 35–36, 45, 48, 52
assistance, 167–168, 231 Basel, 107
Association, associations, 44, 62, 101, Basically, 158–159
107, 134, 145, 199 Basingstoke, 179, 243, 245, 282
assumption, 2, 33, 38, 44, 83, 92, 122, Batistella, 223
129, 176, 178, 193, 195, 198, 200, 212 Batur, 243
asteroid, 189–190, 200 Bauknecht, 107
Astronautical, 202 Baxter, 218, 221
Astronautics, 264 Bayer, 201
astronomy, 7, 198 Bayo, 283
Astrophysical, 202 BC, 52, 105, 144
asylum, 176 bearer, 113, 274
Atela, 283 Beck, 191, 201
Athens, 145 behaviour, 18, 21, 63, 65, 78, 90, 93, 188,
Atherton, 104 193, 277
Athie, 210–213, 216, 221 behavioural, 59
Atlantic, 79 Béland, 224
Atmosphere, atmosphere, 1, 17–18, 75, beliefs, 21, 36, 138, 158, 238
96–97, 187, 205, 250–251, 255, 257, Belinskij, 164
259, 263, 265, 270 benchmarks, 100
Atrato, 117 Bendapudi, 282
atrocities, 40 Benedek, 264–265
Attard, 251, 265 beneficial, 57, 59, 64, 198, 230, 259, 262
attribution, 92, 94, 103 beneficiaries, 220, 240, 259
Auckland, 243 Benjamins, 243
Austin, 233, 243 Bennett, 87, 89, 104, 196, 201
Australia, 1, 10, 124–125, 164, 200, 217, Benson, 86, 152, 161–162
223 Berezkin, 199, 201
authorisation, 192 Berkeley, 53–54, 124, 146, 181, 223, 244
authoritarian, 42, 46 Berlin, 87, 106, 244, 282
Authoritarianism, 46, 53 Bernstein, 60, 65, 68, 151, 161, 179, 243
Autonomous, autonomous, 177, 243, 276 Berrett, 263
avenue, 36, 48, 61, 82, 93, 101, 191 Berringer, 166–168, 179
awareness, 58, 131, 155, 188, 229, 237, Berros, 122, 124
239, 271 Betsill, 59, 68, 85, 104, 124, 179, 222, 243
Betts, 167, 179
B Bharwani, 223
Bai, 161, 179 Bhaskar, 90–91, 104
Baier, 233, 243 Bhatt, 127
288 Index
Bhaynani, 52 borderland, 8
Biber, 117, 124 borderless, 259
Bible, 50 boreal, 79
Biermann, 18–19, 29, 54, 64–65, 67–69, Borg, 261, 263
72, 85, 89, 104, 111–112, 119–120, Borough, 113, 118, 127
124–125, 128, 144, 149, 151, 161, 166, Borràs, 66, 68
171–176, 179, 207, 222, 226–227, 243, Bosselman, 73, 85–86, 264
249, 263 Bosselmann, 2, 9–10, 80, 86, 96, 106,
Biersteker, 70 117, 120–121, 125, 135–136, 138, 144,
Biggs, 87, 149, 152–153, 159, 162, 164 228, 243, 253, 264
bilateral, 200, 232, 258 Bou, 37, 52
Biodiversity, biodiversity, 68, 81–82, 85, Boudreau, 250, 263
117, 126, 135, 171, 205, 207, 223, 240, Boundaries, boundaries, 6, 9, 25, 35, 43,
263, 274, 277 58, 61, 68–69, 73–74, 77–78, 86–87,
Bioethics, 245 113, 118–120, 124–126, 129, 140, 149,
biofuels, 106 157, 164, 174, 176, 191–192, 194, 201,
biogeochemical, 77–78, 82 203, 227, 245, 252–254, 257, 261, 271,
biogeophysical, 252 273, 276, 278–279, 283
Biological, biological, 10, 70, 72, 74–75, boundary, 77–78, 107
81, 152, 189, 193, 195, 197, 205, 208, Boyd, 34, 39, 41, 45, 52, 113, 124, 135,
225, 239, 245–247, 252, 263, 276, 278, 144, 223
281, 283 Boyle, 135, 137, 144
biophysical, 58, 77–78, 80, 85, 90, 99, Bravo, 212
115, 163 Brazil, 135, 265
Biosphere, 74–77, 86 briefings, 263
Biosphere, biosphere, 1–2, 9, 75, 77–78, Brilhante, 70
80, 104, 130, 163, 170, 189, 210, Brill, 86, 162–163, 247
252–256, 258, 260, 262–263 Brita, 7, 148, 150, 152, 154, 156, 158,
biotic, 78, 205, 269 160, 162, 164, 275
bleaching, 1, 10 Brito, 74–76, 85
Bleby, 6, 17, 29, 111–112, 114, 116, 118, Broadgate, 161, 179
120, 122, 124, 126, 130, 226, 274, 276 Broadly, 20–21, 34, 45–46, 50, 57, 59–60,
Blewitt, 131, 144 63–64, 112–113, 116, 137, 150
Blumhoff, 244 Brönnimann, 283
Blunden, 1, 9 Brosius, 239, 243
Boas, 166, 179 Brundtland, 130
Bodansky, 151, 158, 162, 164, 246 Brunnée, 64, 68, 160, 162, 164, 246, 255,
Bode, 10 263
Bodies, bodies, 57, 64, 66, 85, 130, 138, Bruno, 265
143, 151, 166, 172, 186–190, 192, 194, Bryant, 180, 276, 282
199–200, 203, 220, 258 Bryman, 91, 104
Boelens, 212, 214, 216, 218, 224 Budds, 282
Bohman, 7, 17, 26, 28, 33, 148, 150–154, Buganda, 40
156, 158, 160, 162, 164, 275–276 Bukowina, 203
Boillat, 283 Bulkeley, 59, 68
Boin, 105 Búrca, 154, 162
Bolivia, 65, 105, 113, 117–118, 134–135, Burch, 18, 29, 57, 64, 68, 92, 98, 104,
238 128, 143–144, 176–177, 179, 208, 222
Bolivian, 95, 120, 127, 135 Burdon, 54, 124, 126
Bondre, 161, 179 bureaucracies, bureaucracy, 37, 82, 166,
Bonn, 68, 85 169
Booth, 36, 52 bureaucratic, 169, 279
Boquilla, 214, 224 bureaucrats, 37
border, 165–166, 232 Burke, 128, 143, 145
 Index 289
Burton, 196, 201 cascading, 15, 24, 152, 218
Büscher, 105 Cashore, 60, 65, 68
businesses, 242 Cassese, 118, 124
Butler, 224 Cassiopeia, 199
Buxton, 37, 52 Castor, 199
Bybee, 91, 105 Castree, 89, 97, 105
Byrnes, 94, 100, 107 Castrén, 191, 201
Casumbal, 198, 201
C catalyse, 94
Cadman, 1–283 catalysed, 62, 113
Calakmul, 223 catalyst, 105
Caldas, 70 catastrophe, catastrophes, 111, 195, 215,
Calgary, 106 248
California, 53–54, 120, 127, 136, 146, catastrophic, 1, 77, 84, 101, 271
244 categories, category, 37, 42, 47, 78–79,
Callicott, 130, 145 90, 99, 139, 143, 197, 233, 254, 270
Calmé, 223 Catton, 99, 105
Calzadilla, 95, 105 Caucus, 97
Camara, 221 causal, 34, 42, 45, 97, 101, 155
Cámara, 222 causality, 42
Cambodia, 69 causation, 56
Cambridge, 52–54, 69, 85–87, 107, 144, Cautelar, 223
147, 161–164, 201–202, 244–247, CC, 249–250
264–265, 282 CCH, 249
Camilleri, 254, 263 CCP, 177
Campaign, campaign, 177, 179 CDKN, 107
Campbell, 201 Cearreta, 87, 107
Canada, 83, 94, 99–100, 104–106, 190, Celestial, celestial, 186–188, 190, 192,
200, 212, 217 199–200, 203, 258
Cancun, 168, 180 Celsius, 89, 101
Caniglia, 282 Centigrade, 173
capabilities capability, 2, 111, 117, 169, centrality, centrally, 57, 63, 129, 139
239, 258, 275 centric, 8, 16, 22, 28, 63, 65, 112, 115–
capacity, 7–8, 24, 35, 50, 56, 62–63, 73, 116, 118, 120–121, 123, 128–131, 133–
77, 94, 98–101, 106, 114–115, 118, 134, 137, 143, 165, 175, 193, 195, 197,
130, 140, 151, 153, 155–157, 160, 163– 205–206, 208, 219, 221, 274–276, 278
164, 169, 177, 185, 188, 194, 196, 200, centrism, 5, 8, 24, 27, 29, 55, 114–118,
206, 208–209, 212, 214, 221–222, 235, 132, 209, 227
253–254, 262–263, 271, 275, 277, 282 Centro, 221
capitalist, 7, 171 centuries, 113, 139, 185, 226, 279
Capitalocene, 125–126, 145 Century, century, 18, 46, 76, 97–98, 107,
Carbon, carbon, 10, 18, 77–78, 95, 105, 127, 145, 190, 224–225, 234, 238, 245
165, 172, 250, 259 Cerro, 218, 224
Carbone, 43, 52 Certification, 65, 68–69, 280
Caribbean, 41, 53 Chaffin, 208, 213, 222
Carlisle, 272, 276–277, 282 Chakrabarti, 101, 104
Carmen, 213, 223 Cham, 283
Carmin, 247 Chandler, 128, 145
Carney, 101, 104–105 Chandra, 73, 86
Carolina, 97 Changdang, 207
Carpenter, 87, 154, 162–163, 263 ChangingWorld, 163
Carson, 113, 124 Chaos, 49
Cartesian, 132, 226 Chapin, 87, 126, 163–164, 245, 264–265,
cascade, 66, 79, 250, 258 283
290 Index
Chapron, 225 Clark, 66, 68
Chapter, 1, 3, 5–10, 15–18, 20–21, 23–24, Clarvis, 209, 219, 222
28, 33–34, 37–39, 51, 55–56, 59, 66, clause, 41–42, 45, 232
73, 79–80, 89–91, 101–104, 111–112, Clavreul, 221
114, 122–123, 128–130, 142, 148–149, Clearly, 18–19, 42, 48, 55, 63, 72, 82, 85,
151–152, 158, 185–186, 191, 198, 200, 122, 133, 155, 166, 240, 242, 251–253,
206, 212, 216, 218, 221, 226, 241, 250, 258
252, 267, 269–280 Climate, climate, 1–2, 7–11, 15, 17–23,
characteristics, 34, 38–39, 42, 59, 73, 82, 29, 36–37, 52–54, 59, 62, 68, 70, 75,
114, 136, 194, 205, 228, 249–250, 261, 77–86, 88–90, 93–96, 98–107, 117–
270 118, 128, 136–137, 160–162, 164–173,
Charlesworth, 226, 243 175–181, 185–186, 190–192, 195–197,
Charli, 283 199, 201, 203, 205, 207, 211–212, 214,
Charpleix, 96, 105, 114, 122, 124 217, 231–232, 246, 248–253, 255–265,
Charter, charter, 49, 83–84, 130–131, 273–279, 282–283
133, 141, 145 climatic, 171, 232, 253, 272
Cheltenham, 10, 30, 52–53, 105, 107, Closely, 40, 64, 67, 98, 155, 177, 227, 241
124, 144–145, 180, 244–245 Cloutier, 195, 201
Chen, 70, 161, 179 CO, 10, 19, 54, 78, 82–83, 88, 143, 170,
Chernilo, 205, 222 173, 196, 253, 261, 272–273
Chevron, 95 Coal, coal, 19, 52
CHH, 249 Coastal, coastal, 81, 100, 164, 199
Chicago, 53–54 Cochabamba, 70
Chihuahua, 213, 215 Cockburn, 1, 10
Chihuahuan, 218 Coe, 181
Chihuahuense, 224 coexist, 103, 131
Chile, 94, 282 coexistence, 256
China, 170, 190, 207 Cognising, 280
Chippewas, 94–95 cognitive, 186, 280–281
choices, 1, 44, 46, 92, 98, 241 Cohen, 214–216, 221
Christopher, 282 coherence, coherent, coherently, 80–81,
Chthulucene, 125 85, 112, 129, 133, 138, 172–173, 206,
Chukchi, 199 221, 257
ChukchiInuit, 199 Colegio, 223
Churchill, 237, 243 Collaboration, 50, 58, 62, 70, 85, 198,
Ciechanowicz, 228, 235, 243 208, 210, 213–214, 219, 236
Ciencias, 224 collaborative, 124, 262
Cinner, 154–155, 162 Collart, 86
Circovik, 24–25, 28 Collection, 112, 119, 145, 230
circumstance, 1, 3, 6, 33, 47–49, 78, 98, Collective, 16, 21, 24, 43, 46, 91, 155–
156, 158 156, 233–234, 239, 249–251, 258, 264
Cirkovic, 7, 17, 185–186, 188, 190, Collectively, collectively, 1, 59, 62, 65–67,
192–194, 196, 198, 200–202, 204, 250, 128
277, 279 collision, 19, 186, 189, 197
Cities, 68, 177, 179 Colloquium, 264
Citizen, citizen, citizens, 46, 94, 98, 105, Colombia, 113–114, 117
113, 118, 135, 178, 210, 215, 220, 234, Colonial, 7, 27, 29, 40–41, 43–44, 114,
237, 243, 276 128, 130, 139–143, 186, 198, 202,
civilisation, 2, 23, 36, 76, 242, 253 230–231, 235, 238
claimant, 176 colonialism, 19, 144, 195, 197–198, 238
Clapp, 61, 68 colonising, 174, 198
Clara, 244 colony, 10, 200
Clarendon, 105, 244 Colorado, 212
clarification, 18, 20 Columbia, 52, 68, 107, 126–127, 163, 202

Comack, 91, 95, 105
combination, 7, 9, 34, 39, 58, 74, 77, 99,
194, 236, 252, 278
Commentary, 196, 244
commerce, 186, 194, 200
commercium, 185, 198, 200
Commissioner, 96, 166
commitment, 34, 45–48, 93, 95, 144, 211,
271–273, 277
committees, 210, 220–221
Commons, commons, 8–9, 18, 24–25, 27,
29, 53, 70, 97, 195, 202, 248–253, 255,
257–265, 273, 277, 279–280, 282
Commonwealth, 107
Communication, 71, 193, 282
communitarian, 140
communities, 35, 49, 60, 64, 69, 95, 111,
116, 118, 120, 132, 155, 167, 171, 174–
178, 193, 197–198, 202, 204, 214–218,
230, 236–237, 239, 277, 282
companies, 22, 92, 95, 101–102, 188–189,
191, 212, 214, 216–218, 227, 257
Compendium, 203
compensation, 97, 168, 172, 177–178,
212, 216, 259, 262
competition, 19, 276, 282
complaint, 51, 215
Complementary, complementary, 6, 34,
55, 59, 63, 112, 190, 199, 223, 238
complexity, 6–7, 57, 77, 79–80, 91, 99,
101, 112, 115–116, 118, 123, 128, 133,
138, 148, 151–152, 154, 162, 170, 176,
186, 194, 209, 213, 219, 221, 226–227,
261, 274–275
Compliance, compliance, 7, 52, 65, 151,
158, 161–163, 189–190, 212, 214, 216,
220, 227
complicit, 122, 172
component, components, 3, 8, 15, 24, 37,
74–75, 81, 83–84, 113, 140, 150, 153,
161, 174, 177, 205–206, 210, 213, 216–
217, 221, 236, 240, 272, 275, 277–278,
281
CONAGUA, 210–215, 218, 220, 222
concentration, 81, 156
Concept, concept, 3, 5, 8–9, 16–17, 20,
23, 27, 33–35, 39, 50–51, 57, 59, 69,
72–74, 76, 79, 83–84, 86, 89, 106, 111–
112, 114–116, 121–123, 125, 131, 133,
136, 141, 143, 146, 148–152, 154, 156–
159, 162, 170, 173, 183, 188–189, 192–
193, 206, 209, 226–228, 231–234, 236,
238–239, 241–242, 249–253, 255–256,
258, 260–261, 263, 265, 276–277
Index 291
conception, 7, 16, 23, 27, 38, 90, 93, 105,
111–113, 115, 121, 131, 170, 173, 179,
254, 269–270, 273, 277
Conceptos, 222
Concepts, concepts, 4–6, 9, 15, 18, 22,
25–27, 41, 51, 59, 62, 73, 84, 90, 101,
112, 121, 123–124, 129, 131, 133, 142,
154–155, 158, 161, 188, 201, 222–223,
226, 228, 236, 238, 240–241, 243, 247,
249, 254–255, 270–272, 274, 282
Conceptual, conceptual, 30, 38, 53,
111–112, 114, 119, 121–122, 127, 164,
196–198, 201, 206–208, 213, 219–221,
226, 228, 233, 240, 251, 258, 278, 283
conceptualisation, 6, 27, 29, 59, 75, 82,
128–129, 200, 255, 279
conceptualise, 196, 254
conceptualised, 22, 165, 171, 185
Conceptually, 7, 51, 124, 249
Conclusion, 8–9, 41, 45, 48, 56, 66, 73,
80, 84, 101, 123, 142, 160, 178, 185,
189, 192, 200, 221, 241, 251, 262, 269,
271, 273, 275, 277, 279, 281–283
concrete, 35–36, 38, 123, 154, 169, 255
Condominium, 5, 73, 86, 264
Conference, conference, 5, 81, 83, 85, 88,
105, 133, 136, 178–180, 230, 246, 250,
265
configuration, 3, 15, 33, 46, 188, 253
confirmed, 73–74, 97, 166, 234–235, 248
Conflictos, 221, 223
confrontation, 214, 226
Congress, congress, 118, 190, 202, 204, 224
Conkin, 2, 10
connection, 21, 57, 100, 191, 215
Connections, connections, 17, 105, 157,
160, 274, 279
Connectivity, connectivity, 24, 186,
208–209, 219–221
Connell, 208, 224
Connolly, 10
Consciousness, conciousness, 21, 91, 95
Consensus, consensus, 16, 35, 45, 48, 52,
82, 166, 172, 175–176, 249
consequence, consequences, 30, 36, 39,
42, 45, 68, 73, 76–77, 79–80, 84, 115,
117, 128, 148, 170, 208, 218, 227, 231–
232, 239, 251, 260, 271, 273
Consequently, 3, 78–79, 118–119, 138,
140, 210, 231, 249, 258, 260, 281
Conservación, 224
Conservation, conservation, 62, 131, 137,
145, 174, 186, 205, 210, 218–219, 225,
236, 239, 243–247, 259, 262–263, 283
292 Index
conserve, 83, 227
Consideration, 6, 16, 26, 28, 34, 37–38,
58, 63–64, 76, 78, 80, 82, 84–85, 91,
95, 101–103, 115, 117–118, 122, 130,
166, 174–176, 188, 211, 230, 240,
271–272, 274–277, 281
constellation, constelations, 186, 199,
202, 235
constituents, 128, 171
constitute, 35, 43, 45, 78, 96, 113, 118,
135, 141, 195, 198, 236, 239, 253,
260–261
Constituting, 43, 191, 272, 277, 283
Constitution, 34, 39–46, 48, 52–53, 96,
113, 116–118, 120, 127, 134–136, 139,
141, 145
Constitutionalism, 5–6, 27, 34, 38–39,
41–42, 45, 49, 51, 53, 128–129,
133–134, 138–139, 141–143, 145–146,
244, 270, 273–275
Constraints, 42, 86, 119, 123, 197
Construction, 30, 35, 41, 53, 72, 98–99,
139, 143, 195, 223–224, 227, 239, 257,
262
constructionist, 90
constructivism, 68–69, 89, 102–103, 272
Constructivist, constructivist, 16, 21, 59,
64, 89, 91–92, 95, 101–104, 273
Consultative, 193, 247
Consumer, 65, 69
Consumption, consumption, 133, 171,
219
Contemplating, 62, 71, 271
contentious, 22
contest, 59, 66
contestation, contestations, 60, 69, 71,
122, 208, 235, 271, 273
contested, 4, 27, 66, 111, 123
Context, context, contexts, 3–4, 7–8, 17,
26, 31, 34, 38, 45, 53, 56, 60–61, 72,
81, 101, 106, 111–112, 114, 118–120,
122–124, 128–129, 133, 137–138, 140,
143–144, 152, 155–156, 158–160, 163,
166, 168, 171, 173, 176, 185, 189, 192,
194, 196–198, 200, 209, 213–214, 216,
220, 226, 228, 230, 232–233, 235, 238,
240, 248, 250, 270, 275–276, 278, 280
contextual, 18, 51, 89, 92, 94, 102,
111–112, 128
Continent, 2, 44, 53
Continental, continental, 78–79, 82, 245,
247
Contralor, 222
Contraloría, 216, 222
contribution, contributions, 9, 13, 44,
60–61, 65–66, 78, 93, 114, 164, 185,
192–193, 196, 260, 262, 278, 283
contributor, 2–3, 117, 276
controversial, 173, 233, 250–251
controversies, 250–251
Convention, convention, 6, 36, 54, 69,
73, 80–81, 83, 85–86, 88, 125, 130,
135, 160, 166–169, 176–181, 189–190,
195, 203, 215, 223, 232, 239–240,
246–248, 257, 265, 276
Conventional, 3–4, 15, 24–25, 46, 55,
63, 66, 138, 141, 143, 172, 198, 206,
219, 221
conventions, 45, 81, 83, 134, 181, 232
convergence, 33, 135, 192, 262, 279
Coolsaet, 243, 245
Coombe, 67–68
Cooper, 94, 105
Cooperation, cooperation, 9, 16, 19,
21, 24, 28, 69, 82, 160, 165, 168–170,
174, 188, 196, 200, 232, 241, 250,
276, 278
Coordination, coordination, 80, 167–168,
181, 209, 219
COPUOS, 188
coral, corals, 1, 10
Corbera, 245
Cornell, 87, 120, 124, 263
coronavirus, 9, 11
Corporation, 8, 36, 53, 70, 95, 122, 136,
173, 193, 215, 227, 231, 238, 244
Corr, 203
corrective, 236
Cosens, 153–154, 162, 222
Cosmic, 193, 198–199, 201
cosmo, 185, 194, 196, 199–200
cosmolegal, 7, 25, 28, 185, 187, 189, 191,
193–197, 199–201, 203, 277–278, 280
Cosmolegality, cosmolegality, 8, 17, 24,
27, 29, 185, 195–196, 201
cosmologic, 7
Cosmological, 201
cosmologists, 195
cosmology, 7, 122, 140, 145–146
COSPAR, 187, 189
Cotidiano, 221
Cotterrell, 90, 93, 105
countries, 2, 4, 6, 16, 20–21, 26, 37,
39–45, 49, 62, 93, 95, 107, 123, 135,
166–167, 173–177, 188, 190, 200, 217,
231–232, 238, 260, 278
CP, 88, 181
Craig, 83, 86, 152, 161–162, 222
 Index 293
creation, creations, 6, 61, 81, 103, 139, Debris, 7–8, 185–189, 192–193, 197, 199,
189, 191–193, 203, 219, 226–227, 240– 203, 277
241, 260, 280 debt, 96, 172
credibility, 24, 50, 124 decade, 1, 35, 46, 113, 177, 194, 222, 230,
Cree, 197 269
Crépin, 223 DeCaro, 209, 222
crises, 82, 149, 192, 205, 215–216, 254 Decisions, 1, 34, 37, 42, 48, 80, 91–92,
Crisis, crisis, 8–10, 105, 112, 121, 126, 94, 96–97, 100–101, 142, 150–151,
226, 243, 246, 257 156, 158, 171, 175, 192, 205, 229, 232–
criteria, 158, 261, 279 234, 236–238, 242, 272, 279, 281, 283
Critical, critical, 6–7, 15, 22–23, 29, 38, declarations, 83, 132, 139
49, 68, 77–79, 82–84, 89, 91–92, 95, decolonisation, 41, 46, 96
98, 101, 105, 107, 112–113, 116, Decolonizing, 202
119–121, 123–125, 129, 131, 149, 164, Dedeurwaerdere, 243
176, 186, 193, 198, 201, 216, 222, 224, deficiencies, 103, 206, 211
226, 235–236, 239, 241, 244–245, 253, definition, definitions, 3, 15–19, 21, 23,
258, 261 25, 27, 29, 72, 97, 101, 130, 133,
criticism, 35, 103, 116, 120, 226, 228 153–155, 166, 178, 181, 187, 190, 249,
Critiques, 55–56, 63, 120–121, 123, 140, 251, 259–262, 277, 279
235 degradation, 8, 22, 37, 81, 98, 116, 121,
Cronon, 130, 145 129, 159, 166, 185, 195, 200, 206, 219,
cropland, 216, 218 221, 223, 251–252, 258, 274, 276
Crumley, 164 degraded, 98, 177, 255
Crutzen, 76, 86–87, 111, 124, 127, 148, degrowth, 36, 53
162, 164, 205, 222 Del, 213, 222–224
Cryosphere, cryosphere, 1, 10, 75, 270 delegations, 175, 251
CSO, 44 Delhi, 70, 246
CSR, 191 Deliberation, 71, 105, 129, 132, 171, 277
CT, 68, 202 Delineating, 205, 265
Cudworth, 145 delivery, 212, 219
Cullinan, 58, 68, 113, 115, 124 Delmas, 164
culturally, 17, 35, 37, 113, 172, 175, 240 Delmotte, 10
cultures, 35, 99, 142, 175, 238, 260 Delphinus, 199
customary, 19, 141–142, 174, 176, 191 Democracy, democracy, democratic, 19,
Cutter, 97, 105 26, 28, 37, 41–43, 52–53, 90, 92, 94,
Cutzen, 18–19, 170, 179 101–102, 138, 156–157, 161, 164, 180,
CyberSpace, 202 192, 236–238, 242, 244–246, 272
Cyborg, 201 democratisation, 44, 242
dependence, 27, 29, 44, 174, 235
D depletion, 9, 77, 80, 98, 152, 176, 211,
da, 263 214, 216–217, 221, 252
Dahe, 201 Depts, 180, 246, 263
Dalby, 115, 125, 145 derivative, 250
Dale, 58, 69 Des, 231, 244, 263–264
Dalloz, 86 description, 17, 19, 37, 74, 114, 152–153,
Daly, 146 155, 195, 257, 259
Danielsen, 244 descriptive, 8, 114–115, 227, 280–281
Dauvergne, 10, 30, 65, 69 desertification, 81, 216
David, 39, 137, 144 Destiny, 238, 246
Davidson, 100, 105, 152, 154, 156, 162 determinants, 7, 46, 64
Davis, 46, 52, 201, 223 determination, 93, 100, 116, 172, 177,
Dawson, 228, 234, 243–245 201, 232, 256, 262
DC, 87 detriment, 20, 95, 98, 171
294 Index
Development, development, 3–6, 8, displaced, 7, 36, 165–167, 169–170, 177,
10, 13, 17, 19, 23, 27, 34, 36–37, 42, 179
48–54, 56–61, 65–66, 68–69, 71–72, displacees, 22
83–84, 87–88, 98, 100, 105, 107, 109, Displacement, displacement, 7, 165–169,
112–113, 120, 122–127, 130, 133, 171–172, 175–176, 178–181, 283
136–137, 139, 143–144, 146, 151–152, dispossessed, 238
157, 160, 162–164, 166, 170, 172–173, dispossession, 217–218
178–179, 188, 190, 192–194, 203, 219, disruption, 171, 179, 275
221, 223–224, 226, 228–236, 238, 241– dissemination, 192, 272
247, 251, 253–254, 257–258, 263–265, distant, 75, 206, 209, 213, 215, 219–220,
270, 274, 277–278, 282–283 233
Developments, 2, 4, 25, 70, 93–94, 101, distinction, distinctions, 7, 37, 43, 76,
104, 128, 130, 135, 138, 196, 234, 244, 115, 128, 132, 134–135, 143, 195, 249,
252 255–256
Devon, 68 Distributive, distributive, 28, 105, 158–
Diario, 222, 224 160, 163, 219, 228–229, 233, 238–242,
Díaz, 68 246, 278
dichotomous, 143, 253 divergence, 37, 114, 123
dichotomy, 29, 90, 132, 142 Diversity, diversity, 17, 44, 66–67, 71, 75,
Dietz, 223 81, 89, 91–92, 95, 99, 101–103, 118,
Dietzel, 1, 10 122, 138, 155, 171, 239, 243, 246–247,
Differences, 40, 42, 114, 130, 217, 229 261, 263, 272–273, 276, 278, 280
Differential, 16, 54, 104, 160 DNA, 40
diffusion, 5, 16, 21–22, 24–25, 56, 59, 61, Dobson, 98, 105
66, 70 Doc, 54, 88, 146, 203, 246–247, 265
dignity, 96, 167, 230, 239 doctrine, 17, 23, 57, 111–112, 114,
Dilemmas, 232, 244 118–120, 123, 192, 234, 236–237, 243
Dimensions, dimensions, 3–7, 10, 15, 17– Doha, 168
19, 21, 23–29, 31, 55, 60, 65, 69, 72, Doherty, 244
86, 105–106, 109, 114, 122, 125, 145, domains, 19, 47–48, 60, 131, 139,
157–159, 162, 180, 183, 196, 223, 234, 185, 197
238, 240, 245, 252, 264, 270, 272–275, dominance, 19, 82, 115, 118, 134, 282
277–281, 283 domination, 40, 230
dioxide, 18, 250, 259 Donatti, 282
Diplomacy, 193, 246 Donges, 260, 263
direction, directions, 3, 29, 68, 132, 144, Donnell, 120, 126, 136, 146
174, 179, 199, 222, 231 Donohue, 126
Directive, 42, 203, 229 Dordrecht, 146, 247
Directorate, 210, 213, 219 Doremus, 83, 86
disadvantage, 98, 168, 175 Dorussen, 169, 180
Disaster, disaster, disasters, 81–82, 106, Dougill, 224
164, 167, 201 Douglas, 136
disclosure, 94, 100–101, 104, 107 Drengson, 146
discourse, 36, 112, 116, 122, 132, 143, Driebe, 74, 87
159, 197, 244, 254 drivers, 64, 95, 109, 227, 283
discrete, 57, 59 Drought, drought, droughts, 93, 99, 102,
discretionary, 279 106, 208, 211–212, 214, 219, 273
Discrimination, discrimination, Dryland, 223
229–230 Dryzek, 18–19, 29, 52, 68, 100–101, 105,
discursive, 66, 132 145, 172–174, 180, 222
discussions, 116, 174, 188, 194, 198, dualism, 272–273
250–251 Dube, 201, 224
disparate, 63, 195, 258 Duit, 153, 162
disparities, 17, 171 Duke, 105, 125, 201

Dunlap, 99, 105
Dunoff, 162
Dupuy, 227, 244
durability, 24, 50
Duradouro, 263
Durham, 105, 125, 201
Durkheim, 90–91, 105
Dutt, 127
duty, 9, 45, 94, 98, 114, 167, 181, 203,
205, 227, 233, 239, 249–250
Dyke, 263
dynamics, 8, 29, 56, 58–60, 69, 74, 77,
83, 90, 149, 153, 171, 205–206, 208,
216, 219–221, 253, 255, 257, 263, 272
E Effectively, 9, 39, 55–56, 59, 117, 137,
Eakin, 10
Earth, earth, 1–283
Earthsystem, 87, 224
Ebbesson, 73, 86, 96, 105, 153, 163, 235,
244
EC, 34, 39, 42, 48
Echeverri, 283
ECHR, 167
Eckersley, 235, 244
Eco, eco, 4–5, 24, 27–29, 36, 54, 69, 112,
114–116, 120–121, 123, 130–134, 137,
143, 173, 217, 246, 274–276
ecocentric, 115, 145, 218
Ecocentrism, ecocentrism, 25, 27, 126–
127, 130, 138
ecofeminist, 113, 201
Ecological, ecological, 2, 6–8, 10, 17, 50,
52–54, 68–69, 71, 73, 82–83, 86, 89,
99, 101, 105, 111–114, 116–126, 130–
131, 133–134, 136, 138, 140, 142–145,
148–157, 159–164, 171–174, 177–178,
180, 192, 195, 205–215, 218–225, 228,
234–235, 243, 254, 257, 264, 270,
272–273, 275, 277, 279–280, 282–283
Ecologist, 144, 228
Ecology, ecology, 9–10, 36, 52, 68, 70–
71, 83, 86–87, 107, 124, 126–127, 131,
145–146, 154, 162–164, 180, 201, 222–
224, 230, 245, 263, 273, 278, 282–283
Economics, economics, 10, 45, 53–54, 68,
71, 104–107, 124–125, 154, 161, 179–
180, 223, 264, 269, 283
Economist, 42, 52, 228
Ecosystem, ecosystem, Ecosystems, eco-
systems, 1, 17, 21–22, 28, 66, 68, 78,
80–85, 94, 96–98, 115–120, 126, 133,
137, 141, 146, 148–157, 159–164, 166,
174–175, 178, 190, 205, 210–211, 216,
Index 295
218, 220, 225–226, 229, 231, 234, 236,
239–240, 242–243, 245–247, 253, 256,
265, 276–278
Ecuador, 70, 96, 112–113, 116–118, 120,
127, 134–136, 141, 144
ECW, 124, 144
ed, 10, 29–30, 52–54, 69–70, 85–86, 124,
126–127, 144–146, 161–164, 179–180,
201–202, 224, 243–247, 263–265, 282
Edition, 105, 202
Editorial, 2, 11
Education, 69, 96, 133, 204, 237
Educational, 5, 185, 265
EENRG, 127
EEZ, 178
139, 143, 174, 206–207, 237, 254,
256, 258
efficiency, 19, 39, 155–156, 229, 242
effort, 3, 22, 37–38, 44, 49, 51, 55, 57–60,
62–67, 79–80, 82–83, 111, 121, 124,
129, 132–135, 185, 196, 209, 230, 241,
248, 262
Egypt, 135
EHESS, 74, 86
Ekhator, 42, 49, 52
El, 1, 79, 221, 223–224, 232, 245, 247
Elders, 197
election, 41, 43, 46
Elements, elements, 8, 23, 29, 33–35, 38,
40–41, 46, 48, 55, 68, 73, 79, 84,
86–87, 90, 96, 119, 140–141, 208–209,
213, 215, 228–229, 234–235, 238–242,
245, 251, 260–262, 271
Elena, 7, 185–186, 188, 190, 192, 194,
196, 198, 200–202, 204, 277
Eli, 130, 144
elite, 19, 35, 44–46, 48
Elmqvist, 163, 263
embark, 90, 270
embedded, 29, 89, 99, 111, 131, 208, 211
embody, 43, 100, 220, 279
embraced, 65, 118, 239
Embracing, 6, 36, 63, 112, 114–118, 123,
272, 282
emergence, 9, 11, 45, 60–61, 64, 66, 68–
73, 93, 112, 125, 128, 133, 138, 163,
191, 205, 224, 262–263
emergency, 168, 256, 264
Emergent, emergent, 10, 52, 55, 59, 62,
65–67, 74, 90, 129, 137, 142–143, 190,
277
emission, 8, 10, 37, 95, 103, 106, 165,
177–179, 250, 258–259, 262–263
296 Index
Emmanouil, 68
Emphasis, 5, 56, 64, 118, 259, 271
Emphasising, 28, 49, 61, 80, 119, 158
EN, 11, 86, 88, 146, 180, 201–204, 221–
224, 246–247, 265
endeavour, 18, 35, 50
enduring, 90–91, 272
Energy, energy, 52, 78, 81, 95, 106, 125,
134, 217, 241, 245, 252–253, 255, 257,
259, 263, 279, 282
Enforceable, 176
enforcement, 22, 28, 176, 206, 209, 212–
213, 216, 218–219, 221, 241
engagement, 7, 24, 46, 59, 65, 67, 112,
185, 197, 220–221, 235, 237, 241, 245,
247, 271
ENSO, 1
entail, 3, 51, 96, 148, 158, 192, 216, 231,
270, 282
enterprise, 59, 112, 186, 244
Entities, 77, 100, 103, 118, 134–136, 142,
174, 177, 185, 190, 193–194, 197, 210,
257, 272, 275
entrench, 41, 58, 60, 63
Environmental, environmental, 1–3, 5–8,
10–11, 15–18, 21–25, 30, 33–39, 41–
42, 44–62, 65–66, 68–77, 80–88, 90,
93, 96–98, 102–107, 111, 113, 115–
120, 123–130, 133–140, 142–147, 149–
164, 166–167, 171–175, 177–180, 185–
186, 188–192, 194–196, 200–202, 205–
209, 212–213, 215–218, 220–249, 252,
254, 256–259, 262–265, 270–276, 278–
279, 282–283
Environmentalist, 49, 132, 173, 235, 244
Environments, environments, 75, 98, 107,
186, 193, 196–197
EO, 185
Epiney, 154, 163
Epistemic, epistemic, 55, 60, 69, 90, 129,
145, 186
epistemological, 58, 90, 121
epistemology, 91, 97, 104–105, 121,
271–273
equality, 7, 26, 28, 100, 156–161, 230
Equally, 111, 119, 140, 148, 158, 171, 212
Equitable, equitable, 8, 36, 57, 66, 70,
122, 159–160, 228–229, 234–235, 239–
240, 246, 251, 261–262, 271
Equity, equity, 26, 28, 36, 56, 60, 70, 97,
122–123, 148, 156–161, 164, 229, 232,
236, 241, 243–247, 263, 283
era, 2–3, 19, 89, 112, 144, 165, 253–254,
269–270, 273
Erie, 116, 122, 125, 127, 141
Eros (EROS), 3, 5, 33–34, 37–40, 45–50,
270, 273
ES, 223
ESA, 188
Escobar, 91, 105, 213, 224
ESG, 5, 18, 20–21, 24, 27–29, 55,
63–65, 67, 69, 72–73, 85, 89–90,
102–103, 111, 115, 119, 121, 128,
165, 173, 176, 226–228, 256, 272,
275, 279
ESGP, 2, 63, 72, 128
ESIL, 163
ESL, 1–283
Essen, 66, 71, 247
ESSP, 72
establishment, 85, 118, 172, 194,
220–221, 235
Estadisticas, 222
estado, 224
Estrin, 94, 105
Etemire, 49, 52
ethic, ethics, 7, 58, 113, 123, 125–126,
129–132, 134, 136–137, 140–141,
143–144, 146, 156, 202, 223, 225, 228,
238, 243–244, 269, 282
eu (EU), 157, 164, 192, 202
Events, 1, 19, 168, 172, 201
Everett, 100
Evidenced, 74, 273
Evolution, evolution, 1, 68, 113, 118,
126, 129, 142–143, 173, 224, 251,
253–254, 260, 262, 264
evolutionary, 241
Evolutions, 131, 142
Examples, 18, 42, 62, 80, 101, 103–104,
123, 134–135, 138, 174, 190, 208, 233,
239, 242, 256–258
Exclusion, exclusion, 94, 102, 121, 140,
229, 231, 238, 269, 273, 277
Expansion, expansion, 24–25, 94–96,
100, 103, 113, 129, 134, 140, 143, 167,
170, 180, 202, 215, 223, 270–271, 273,
275–276, 283
Expansive, expansive, 55–56, 64, 120,
145
expectation, 21, 67, 158, 187, 191
expertise, 49, 161, 174, 193
Experts, experts, 60, 85, 133, 161,
173–174, 237, 265
explanation, 75, 226
exploitation, exploitations, 7, 17, 83, 132,
148, 190, 192, 202, 212, 215–217, 221,
231, 238–239, 249
 Index 297
Exploration, exploration, 112, 186–187, Folke, 87, 125, 148–149, 151, 153,
189–192, 200, 202–204, 223 163–164, 203, 245, 253, 260, 263–265
Explorations, 107, 116, 119–120 Foran, 52
Exposure, exposure, 94, 98, 101–102 foreseeable, 94, 143, 153
externality, 22, 115, 170, 192 Forest, forestry, forests, 9, 23, 54, 65, 68,
extinction, 19, 89–90, 98, 128, 135, 204, 78–81, 97, 99, 136, 141, 235, 238, 243,
218 282
extraction, 65, 96, 107, 175, 189, 192, Formation, 43–44, 48, 244
195, 202, 211 Forum, 62, 106, 187–188, 204
extraterritorial, 202, 264 fossil, 21–22, 37, 95, 170, 173, 175, 177,
Exxon, 94–95, 100, 105 216
foster, 62, 64, 66, 86, 93, 99, 118, 148,
F 160, 186, 188, 214, 280
Fabra, 245 Foundation, foundations, foundational,
Factoran, 62, 71 5, 7, 10, 41, 50, 55–59, 61, 63–64, 72–
failure, failures, 6, 8, 76, 94, 100, 129, 73, 84, 90, 98, 118–119, 125, 134, 138,
139, 201, 221, 231, 240 144, 160, 180, 191, 195, 222, 228, 248,
Fairness, fairness, 26, 28, 158–161, 163, 251, 264, 271, 283
234, 243–244, 276 fragile, 44, 97
Falk, 254, 263 frameworks, 3, 5, 16, 18, 31, 56, 59, 79–
Farmers, farmers, 214–217 80, 82, 84–85, 100, 111–112, 117, 123,
Fassin, 202 178, 198, 208, 214, 238, 270, 273, 277
Fastenrath, 265 Francis, 131
fate, 1, 3, 33, 35–36, 144 Francisco, 283
fauna, 16–17, 95–96, 166, 175, 269, 275 Franck, 158, 163, 229, 244
Fazey, 282 Fraser, 224, 239, 244–245
feedback, 23, 74–80, 83, 99–100, 155, Freedom, freedom, 192, 230, 237,
161, 208, 215, 236, 258–259, 261, 245–246
279 Fressoli, 283
Feeney, 126 Fretheim, 36, 53
Feichtner, 186, 195, 202 Frewer, 234, 245
Feminist, 107, 201 Frontier, frontier, frontiers, 67, 94,
Fernández, 5–6, 16, 24, 58, 69, 72–74, 145–146, 163, 190–191, 198, 201, 245,
76, 78, 80, 82, 84, 86, 88, 120, 125, 247, 279
252, 271–272 fruitful, 51, 112, 142
Fernwood, 105–106, 282 frustration, 51, 195, 241
Fetzer, 87 Fulton, 100, 104
Feynman, 194–195, 202 Futures, futures, 52, 98, 124, 144,
Feyter, 264–265 176–177
Filho, 282
Findings, 76, 161, 163, 245 G
Finland, 164 GA, 145–146
Finnemore, 21, 29, 59–60, 69 Gaffney, 86, 125, 128, 145
Fishel, 145 Gaia (GAIA), 1, 10, 30, 49–50, 53–54,
Fisher, 57, 69, 246 124, 143, 270, 273
Fisheries, fisheries, 65, 68–69, 83, 164 Galaz, 90, 101, 105, 120, 125, 153,
Fitzmaurice, 153, 163 162–163, 226, 244
Flexibility, flexibility, 118, 154–155, 160– Galli, 11, 264
161, 208, 220–221, 278 Gallo, 215, 222
flora, 16–17, 95–96, 166, 175, 269, 275 Ganges, 117, 120, 142, 146
fluid, 171, 255 Gap, gap, gaps, 3, 7, 9, 24, 26, 34, 88, 90,
flux, 187, 252 101, 104–105, 129, 138, 153, 165–166,
Foerster, 36, 53 178–179, 226, 244, 247, 254–256, 260,
Foley, 164 262, 265, 267, 275, 279
298 Index
Garcia, 215, 222 Globally, globally, 19, 98, 101, 105, 129,
Gargantuan, 280–281 257, 277
Garmestani, 83, 86, 153, 163, 213, Globe, 107, 112, 170
219, 222 goal, goals, 34, 42, 46, 50, 53–54, 56, 81,
Garver, 54, 57, 69 84, 99, 107, 114, 125, 139, 142, 146,
Gaskell, 223 149, 157, 172–173, 179, 189, 213, 229,
Gaube, 106 237, 242
Gautan, 73, 86 Godden, 58, 69
Gazprom, 95 Goldfarb, 70
Gdansk, 243 Golding, 50
GDP, 40, 260 Gomez, 283
Geiger, 265 Gonçalves, 210, 224
Gellers, 37, 53, 235, 244 Gonzalez, 235, 244
GEN, 88, 146, 265 Goodman, 172, 180
Gender, gender, 2, 95, 105, 167, 230 goods, 96, 98, 171, 228–229, 241, 256,
Generally, 39, 43–44, 50, 67, 91, 94, 115– 272
116, 152, 154–155, 160, 187, 189, 195 Gordon, 68, 164, 222
Generations, generations, 1, 4, 6, 10, 16, Gosnell, 222
26, 98, 101, 130, 133, 135, 159, 173, Governance, governance, 2–8, 10, 17–25,
229–234, 239–245, 247–248, 260–263, 27–30, 36–37, 42, 49, 52, 54–58, 60,
265, 275, 281 63–66, 68–73, 85–86, 89, 91, 93, 102,
Geneva, 11, 283 104–107, 111, 118–121, 124–130, 133–
geochemical, 195, 205, 255 134, 137–138, 140–145, 148–181, 186,
geoengineering, 121, 196, 274 191–192, 200, 206, 209–211, 219,
geographic, 61, 67, 118, 249, 251, 221–223, 226, 233, 238, 240, 243–247,
255–257 255–256, 262, 264, 269, 271, 275–279,
Geographical, geographical, 4, 6, 16, 26, 282–283
100, 105, 124, 177 Government, government, 20, 41–46, 54,
geographies, 100, 180, 209 82, 88, 94, 96–100, 120, 122, 127, 167,
Geography, geography, 105, 119, 174, 177, 179, 190, 202, 204, 210–212,
161–162, 180, 270, 282 215–216, 218–220, 222, 224, 235, 245,
geological, 9, 19, 72, 76, 89, 111, 114, 276–277, 283
148, 150, 171, 205, 253, 278, 281 governmental, 28, 34, 60, 62, 169, 187,
Geology, 87, 126, 162, 179–180 237–238
geophysical, 248, 254–255, 257, governmentality, 126, 245
260–261, 263 governments, 8, 22, 39–41, 43, 60, 92,
geopolitical, 255, 279 142, 167, 173, 177, 189, 194, 212, 215,
Geopolitics, 202 235, 242, 259
Geosphere, 74–77, 86, 210, 253 Graham, 113, 125
GEP, 56, 59–61, 63 Grammar, 238, 244
Gerber, 283 Grande, 212, 223
Gerlak, 29, 144 Grantham, 107
Gesellschaft, 247 Grassroots, 280, 283
GHG, GHGs, 95, 102, 196 Grear, 121–122, 125, 129, 144–145
Gillies, 227, 244 Greenhouse, greenhouse, 7, 37, 80–81,
Giunta, 130, 145 89, 93–95, 103, 106, 177, 196, 258–259
GJIE, 62 Greening, greening, 129, 134–135, 137,
glacial, 75, 136, 253 139, 142, 244, 274–275
glaciers, 113, 117 Greenland, 79, 190
Gleeson, 210, 223 Gregg, 35, 53
Globalisation, globalisation, 5, 56, 59, Gridlock, 56, 69
61–63, 66, 227, 244 grievance, 34, 38, 235
globalising, 38 Grigg, 123, 125, 224
Globalization, globalization, 71, 244 Grinevald, 127
 Index 299
Grinlinton, 228, 243 Hernandez, 215, 222
Grotius, 228 hierarchy, 4, 16, 26–27, 57, 114, 117, 131,
groundwater, 210–212, 215, 219 169, 177
Gruby, 272, 276–277, 282 Hill, 209, 219, 222
GSA, 181 Hillman, 219, 223
Guantánamo, 54 Hilson, 34, 53
Guardian, guardians, 114, 118, 136, 146, Hinz, 283
265, 276 Hirsch, 162
Guha, 132, 145 Historic, 24–25, 170
Guidelines, guidelines, 58, 82, 187–189, Historical, 23, 37, 52, 101, 114, 121–122,
200, 203, 215, 224, 251 124, 127, 138–140, 165, 178, 228, 230,
Gulbrandsen, 65, 69 255, 262, 275
Guldberg, 10 Historically, 43, 59, 67, 99, 101, 250, 269
Gunderson, 83, 85, 99, 104, 153–154, histories, 40, 195, 200, 278
161–163, 263 Hitchner, 239, 243
Gupta, 29, 57, 67–69, 85, 96–97, 104, Hobden, 145
106, 124, 144, 151, 161, 179, 222 Hoddia, 247
Guston, 98, 106 Hoegh, 10
Gutmann, 53 Hoey, 10
Hoffmann, 59, 67, 69
H holder, 112, 115, 212, 233
Haas, 60, 69 Holistic, holistic, 22, 50, 57–59, 63–64,
Habib, 37, 52 66, 79–81, 83, 91, 116–117, 121–123,
habitat, habitation, habitats, 96, 98, 113, 127, 140–141, 143, 191, 256, 271
165, 174–176 Holland, 37, 53
Hackmann, 70 Hollander, 244
Hague, 186, 203 Holley, 124
Hahn, 153, 163 Holling, 83, 86, 163, 263
Haifa, 201 Holmes, 91
Halifax, 105–106, 282 Holocene, 7, 73, 76–78, 89, 107, 149,
Hamilton, 119, 125, 205, 222 170, 172, 205, 252–253, 259, 261, 271
Hamzic, 195, 202 homeland, 172, 177
Hansen, 1, 10, 105 Honduras, 232, 245, 247
Hanson, 94 Honkonen, 103, 106
Haraway, 122, 125 Honneth, 238–239, 244
Harcourt, 124, 146, 179, 202 Hooft, 233, 247
Harmony, harmony, 83, 93, 105, 129, 132– Hoogenboom, 10
134, 137, 139–141, 143, 146, 205, 265 Horizon, horizon, horizons, 101, 104,
Harper, 99, 106, 231, 244 197
Hart, 70, 86, 127, 246 Hornborg, 76, 87, 121, 126, 170–171, 180
Hayman, 11 Houck, 115–116, 125
Hayward, 235, 244 Houghton, 124, 146
Hazards, hazards, 105, 163, 274 Houston, 87
Hearty, 10 Hove, 126, 204
Hegelian, 239 Hovi, 175, 180
hegemony, 4, 26, 28 Hsiao, 141, 145
Hegtvedt, 224 Hsu, 10
Heidari, 94, 106 http, 10–11, 52–54, 69, 71, 86–88, 104–
Heinimann, 283 107, 124–125, 144–146, 164, 179–181,
Heitzig, 263 201–204, 207, 222–224, 246–247,
Hensengerth, 60, 69 263–265, 283
Heritage, heritage, 5, 8–9, 18, 73, 85, Hubacek, 224
162, 186, 192, 195, 248–252, 255–258, Hughes, 1, 10
260–265, 279 Hugo, 228
300 Index
Hultman, 282 IHDP, 72, 85
Humanitarian, humanitarian, 149, 167, II, 3, 31
181 IIDH, 265
Humanities, 105, 170, 260 IIDMACHH, 264
Humanity, humanity, 2–3, 6, 9, 17–18, Ikeda, 70
21–23, 29, 33, 35–39, 41, 43, 45, 47, ILC, 251, 264
49, 51, 53, 73, 76–77, 83–85, 87, 89, illeof, 217
112, 121, 125–126, 131–133, 137, 164, illustration, illustrations, 59, 102, 141,
171, 174, 179, 192, 197, 199–200, 202, 193, 207, 211, 218
227, 233, 245, 252–253, 255–264, ILO, 215, 223
270–272, 283 ILSA, 179
Humankind, humankind, 8–9, 22, 73, 80, Ilulissat, 190
86, 114, 121, 186, 192, 200, 233, 248– Imagination, imaginations, 90, 92, 98–99,
252, 255–258, 260–263, 274, 279 102–103, 176–177, 179, 185, 197, 272,
Humans, humans, 2–3, 7–8, 15–19, 22– 277–278, 280
23, 27–29, 33, 49, 57, 73–77, 84, 89, IMG, 265
91, 95–97, 99, 103, 111–116, 122, 128, Imhof, 45, 53
130, 132, 135, 138–139, 142–144, 149, immobile, 179, 199
165–166, 170–171, 175–176, 185, 193– impediments, 58
199, 205, 209–210, 216, 227, 253, 255, imperative, imperatives, 16, 29, 35, 46,
269, 271, 274, 276, 278–279 111, 115, 119–120, 171, 175, 263
Humphries, 126 Implementation, implementation, 27, 29,
hunter, 76, 199 54, 59–60, 66, 68, 72, 80, 85, 104, 107,
Hurlbert, 1–283 119, 125, 154–155, 219, 227–228, 230–
Hutchison, 122, 125 231, 236, 240–242, 251, 271–273, 280
Hutter, 155, 163 implication, 7, 22, 55, 73–74, 84, 115,
Hybrid, 41–42, 44, 46, 53–54 120, 122–123, 129, 133–134, 137, 139,
hydroelectric, 218 145, 151, 165, 169–171, 180, 190, 198,
hydrological, 207, 210, 278 205–206, 208–209, 213, 223, 260, 265,
hydropower, 60, 69 274, 283
hydrosphere, 1 Importance, 5, 37, 49, 57, 65–66, 73, 80–
Hypothesis, 1, 41–42, 50, 54, 196–197 81, 96, 98, 117, 122, 132, 155–156,
Høyer, 104 158–160, 168, 170, 176, 186, 197, 230,
235, 239, 242, 244, 250
I Importantly, 43, 55, 75, 80, 142, 158,
IAC, 202 160, 178, 188, 195, 197, 257, 282
IACHR, 216, 223 impoverished, 255
ICCG, 263 improvisation, 40–41
Iceland, 190 inability, 8, 36, 207, 221, 248
icj (ICJ), 232, 246–247 inadequacy, 38, 73, 111, 248, 254
ICSU, 74 Inadequate, inadequate, 192, 216, 220
ideals, 55, 65 inanimate, 18, 136
ideas, 21, 56, 60–63, 66–67, 74, 83, 124, incentive, 51, 172, 189, 260
126, 128, 133, 138, 140, 170, 173, 175, inception, 169, 189
236, 238, 256, 270, 276 inclusion, 24–25, 83, 96, 135, 153, 176,
identification, 57, 205, 228, 233, 235–236, 195–196, 211, 219, 238–239, 248
240, 271 inclusive, 20–21, 57–58, 66–67, 122, 178,
identities, 48, 238 186, 193, 221, 226, 236, 241–242, 275,
ideological, 249 282
IDP, 167, 181 inclusiveness, 164, 221, 236
Ietto, 227, 244 incorporation, 6, 61, 67, 137, 160, 179,
IGBP, 74, 86 279
IGOs (IGO), 28, 166, 175–176, 178, 180, Independence, independence, 40–41,
283 43–44, 53, 172, 174

India, 69, 112–114, 117, 126–127, 135,
141, 170, 238, 246
indicator, indicators, 89, 119, 202
indígenas, 223
Indigenous, indigenous, 22, 25, 28–29,
44, 49, 65–66, 68, 94–95, 99–100,
102–105, 113–114, 122, 126–129, 131,
138–141, 143–145, 175, 179, 197–198,
200–202, 215, 217–218, 223, 236, 238–
240, 242, 246–247, 273, 275, 277–279,
282–283
Individually, 62, 156, 258
Individuals, individuals, 18, 20, 22, 43,
61, 93, 155, 159–160, 227, 229–230,
233, 242
indivisible, 96, 102, 147, 239, 250, 252–
253, 257
Industrial, 19, 95, 114, 170, 174
Inequalities, inequality, inequality, 3–4,
16–17, 26, 36–37, 76, 89, 92–95,
97–98, 102–103, 105, 109, 121–122,
157, 160, 195, 207–209, 230–231, 234,
239–240, 247, 272–273
inequity, 97, 281
infrastructure, 99, 155–156, 214, 217
ing, 275
Ingebritsen, 60, 69
inhabit, 19, 199, 216
inhabitants, 55, 171, 231, 275, 277
Initiative, initiatives, 10, 44, 63,
65–67, 72–73, 87, 125, 134, 191,
193, 197, 221, 224, 227, 231, 234,
242, 263–264
injustice, injustices, 6, 21, 129, 209, 218,
224, 231, 236, 239, 242, 247, 281
Innovation, innovations, 41, 54, 56, 129,
135, 141–143, 163, 214, 280, 283
innovative, 55–56, 58, 62, 64, 66, 128,
139–141, 178, 233
Inoue, 29, 68, 104, 144, 179, 222
Inquiry, 52, 111, 124, 126, 144, 283
inroad, 59, 138
insight, 5, 16, 50, 55–57, 59–67, 72–74,
79, 119–120, 163, 240, 260, 264, 271
Inspector, 212, 222
Institution, 52, 92, 98–99, 151, 226, 259,
269, 272, 280
Institutional, institutional, 4, 8, 18, 20,
24, 27, 29, 33, 38, 41–42, 46, 48, 50–
51, 56, 60–61, 63–65, 70, 94, 150, 153,
156–157, 162, 166, 168, 179, 206–211,
213, 220–222, 226–227, 229, 237, 241,
243–244, 271–273
institutionalisation, 19, 61, 172
Index 301
Institutions, institutions, 4, 20–21, 23,
25–26, 28–29, 34, 36–38, 41, 43, 51,
56, 60–61, 63, 70, 85, 92–93, 99–102,
111, 122, 130–132, 151, 153, 155–157,
161, 163, 172–174, 180, 197, 206, 234,
237, 242, 244, 264, 272, 274–275
Instruments, 6–7, 9, 80, 83–84, 88, 102,
112–114, 117–120, 122, 128, 130, 138,
140, 167, 177, 185, 187, 211, 219, 229,
232, 236, 240–241, 247, 252, 254, 256,
265, 278–280
Intangible, intangibles, 5, 73, 85, 250,
252, 255–265, 279, 282
integrate, 18, 20, 22, 24–25, 55, 58–59,
63–64, 160, 165, 206, 212, 254
integrated, 7, 20, 72, 74–75, 77, 79–83,
85, 99, 112, 117, 119, 168, 173–174,
176, 210, 220, 253, 258, 261
Integrating, integrating, 7–8, 16, 23, 28,
64, 79, 84, 107, 111, 120, 153, 165,
172, 205, 207, 209, 211, 213, 215, 217,
219–221, 223, 225, 253, 260, 271, 275,
278
Integration, inntegration, 7, 28–29, 59,
64, 73, 79–81, 84, 90, 93, 120–121,
139, 178, 201, 219–220, 223, 271
Integrative, 9, 55, 82, 162, 173
Integrity, integrity, 2, 7, 9–10, 29, 77–78,
80–81, 83–84, 117–118, 120, 125, 131,
133–134, 145, 162, 169, 210, 252, 254,
264
intellectual, 80, 105, 122, 138, 257
Intelligence, 42, 52, 259, 263
intensive, 78, 226, 280
intention, 38, 41–42, 45, 74
Inter, 6, 75, 103, 123, 150, 154, 158, 209,
216, 223, 226, 228, 236, 243, 275–276,
278
interaction, interactional, interactions, 1–
2, 20, 22, 61–62, 68–69, 74–75, 77–80,
82–83, 85, 90, 124, 130, 165, 192–193,
196, 205–209, 211, 213, 215, 219–220,
227, 234, 245, 256, 272, 278, 280
interactive, 60–61, 196, 257
interconnected, 6, 9, 17, 19, 23–24, 37,
101, 111, 115–116, 119, 148, 153, 192,
238, 248, 253–254, 256, 274, 277, 281
interconnectedness, 116–117, 123, 149,
159, 176, 255–256
Interconnection, interconnections, 17, 78,
81, 208, 219, 253–254, 279
interdependence, 116, 131, 142, 171, 174,
248, 256, 258
interdependencies, 77, 80, 164, 253
302 Index
interdependent, 6, 17, 79–81, 85, 99, 113, Island, island, 100, 164, 168, 175, 178,
117, 130, 148, 153, 238 245, 247
Interdisciplinarity, 57–58, 70, 104, 201 Ismael, 215, 223
Interdisciplinary, 5, 55–59, 62–64, 66, Italy, 200
69–71, 90, 97, 162, 194, 201, 245, 269, Iterative, iterative, 51, 71, 99, 121, 209,
271–273 219–220, 270, 278
intergalactic, 201 Ituarte, 105
Intergenerational, intergenerational, 6, IUCN, 62, 71, 131, 137, 253, 264
171, 231–233, 237, 241, 243, 245, 247, Iustum, 264
253, 283 IV, 7, 183
interglacial, 253 Ivanova, 56, 69
Intergovernmental, intergovernmental, Iyengar, 264
10, 20, 25, 28, 62, 68, 80, 85, 166,
169–170, 180, 198, 210 J
interlinked, 55, 57 Jackson, 247
Internacional, 263 Jacobsohn, 53
internacionales, 224 Jaconsson, 86
internationalism, 5, 27, 29 Jäger, 87
Internationalist, 70, 147 Jah, 202
Internationally, 56, 118, 140, 167, 263 Jamahiriya, 247
interplanetary, 192 Jamaica, 39, 41–42
interplay, 148, 163, 206–207, 209, 221 Jänicke, 237, 244
Interpretation, 18, 21, 29, 41, 48, 123, Jansson, 163
159, 247, 250–251, 280 Japan, 83, 190, 200, 217
Interpretive, 54, 90–91, 117 Jardins, 231, 244
interrelation, 239, 272 Jasanoff, 194–195, 202
interrelationships, 116–117, 274 Jeffords, 37, 53, 235, 244
Interrogating, 101, 121 Jenks, 196, 202
intersection, 126, 143, 193 Jerneck, 90–91, 107
interspecies, 4, 26, 28 Jinnah, 52
Intervening, 30, 245 Johannesburg, 246
Intervention, 3, 24, 33–34, 49–50, 201, Johansson, 163
209, 245, 270, 280 John, 98, 145–146
intimacy, 132, 140 Johnson, 224
Intragenerational, 6, 229–233, 245, 247 Jones, 96, 107, 136, 146
Introduction, 1, 3, 5, 7, 9, 11, 15, 33, 49, Jorgensen, 40, 53
55, 70–72, 89, 106, 111, 122, 125, 128, Joseph, 283
148, 158, 162, 165, 185–186, 192, 202, Journée, 74, 86
205, 226, 229, 234, 244, 264, 269, 282 Judgment, 35, 244, 247
introspective, 57, 271 Judicial, judicial, 5, 34, 50, 56, 59, 61–63,
intruding, 191 66, 71, 111, 139, 234
intuitive, 251–252 judiciary, 41, 69
inundation, 175 juridical, 8, 10, 48, 69, 86, 90, 106, 118,
invasive, 17, 28 125, 145, 180, 223, 245, 259, 264, 283
Invention, 170, 200, 202 juridicas, 265
investment, investment, 4, 17, 27, 80, jurisdiction, 26, 28, 42, 44, 61–62, 66, 79,
100–101, 172, 189, 212, 216–218, 235 117–118, 120, 129, 142, 157, 167,
involvement, 18, 118, 234, 236–237, 176–177, 189–190, 276
241, 278 jurisdictional, 119–120
IOM, 167–169, 174, 176, 180 Jurisprudence, jurisprudence, 2, 4, 6, 10,
IPBES, 85 27–28, 38, 54, 62, 69, 107, 112–113,
IPCC, 10, 85, 283 119–120, 124, 126, 131, 133, 138–140,
IR, 16, 55–56, 59–61, 63–67, 145 142, 167, 243, 263, 274
 Index 303
Jurisprudential, jurisprudentially, 4, 26, Klein, 201
46, 48, 50, 58, 89–104, 270, 272–274, Kleinert, 227, 244
280 Klinger, 187, 202
Justice, justice, 1, 6–8, 16–19, 21–22, Klyza, 56, 69
36–37, 52–54, 56, 60, 69–70, 90, 92, knowledges, 185–186, 198, 200
95–98, 101–106, 122–123, 127, 130, Knox, 34, 53
135–136, 150–151, 158–160, 163, 174– Koehler, 263
175, 177–178, 194, 202, 206, 208–210, Koen, 265
213, 216, 218–221, 223–247, 254, Kofinas, 163, 265
272–275, 278, 280–282 Kooiman, 236, 245
justification, 37, 139, 231 Kopnina, 225
Korea, 190
K Kortet, 164
Kalfagianni, 29, 68, 104, 144, 179, 222 Kortetmäki, 219, 223
Kani, 68, 85 Kotzé, 2–3, 10, 43, 53, 55–58, 63, 65, 69–
Kanie, 54, 99, 104, 107, 124, 179 70, 73, 84, 86, 90, 92, 95–96, 105–106,
Kantian, 35, 180 111–112, 114, 116–119, 121–122, 124–
Karavias, 65, 69 125, 127–129, 133, 144–145, 177, 180,
Kashwan, 55, 69 206, 209, 223, 226–227, 234, 240,
Kattel, 225 245–246, 254, 257, 262, 264, 272, 283
Kauffman, 114, 125 Kotzéet, 145
Kaufmann, 20, 29 Kotzeet, 146
Kea, 201 Kraay, 29
Keck, 154–156, 163 Kraft, 245
Kelsen, 233, 244, 273, 282 Krasner, 21, 30
Kelsenian, 247 Kriegler, 86
Keltner, 96, 106 Kristianstad, 163
Kemp, 107 Kulshreshtha, 97, 106
Kent, 124 Kumm, 61, 70
Keohane, 59, 70, 162 Kunz, 166, 180
Kerry, 10 Kurian, 52
Kettemann, 264 Kyoto, 180, 232, 246
Ketterman, 265
Khan, 265 L
Kharecha, 10 La, 1, 11, 86, 139, 214, 221–224, 264,
Kibel, 213, 223 283
Kiel, 244 lag, 39, 130
Kil, 126 Lagos, 52
Kilbert, 122, 125 Lake, lakes, 116, 122, 125, 127, 141, 169,
Kim, 2, 10, 54–55, 57, 63, 65, 69, 80, 84, 180, 207, 216, 225
86, 90, 92, 96, 106, 111, 114, 116–121, Lalit, 127
125, 128–129, 133, 145, 177, 180, 206, Lam, 282–283
223, 226–227, 240, 245, 253–254, 257, Lambin, 87, 164, 245
262, 264, 272, 283 Lander, 189
Kingdom, kingdom, 40, 113, 188, Lang, 283
200, 203 Langlet, 86, 162, 247
kingdoms, 40, 43 Lant, 245
Kingsbury, 94, 106 Larger, 21, 39, 129, 168–169, 171,
kinship, 140, 201 174–175, 177
Kiribati, 167, 181 Latour, 172, 180, 194, 202
Kirychuk, 106 Launched, 2, 74, 189, 203
Klamath, 222 lawful, 233
Klamberg, 86 lawfulness, 131, 192
Klaus, 228 lawless, 43
304 Index
Lawlor, 136, 145 Letters, 202, 244, 246
lawmaking, 151, 196 leverage, 62–63
Lawrence, 5, 161 leveraged, 62, 67, 220
Laws, laws, 7–8, 17–19, 21, 26, 52, 90, Leveraging, 66, 220, 278
93, 98, 101, 103–104, 107, 112, 114, Levi, 164
117, 120–123, 126, 130, 135–136, Levin, 220, 223
139–140, 150–151, 157, 160, 168, 185, Levine, 145
187, 189–190, 195–197, 201, 205–206, Levitsky, 42, 44–45, 53
209, 212–213, 219–221, 256, 272, 277, Lewis, 19, 30, 55, 70, 114, 122, 125, 170,
279–280, 282 180
lawsuits, 100, 102–104, 106, 125, 273 Lexington, 10, 146
leader, 40, 44, 193–194, 215 Ley, 222
leadership, 19, 69, 129, 166–167, 175 Liability, 22, 56, 94, 101, 106, 166,
Lebel, 68, 85, 96, 104, 106, 124, 179 177–178, 187, 190, 203
Lecuyer, 210, 223 liable, 170, 177–178, 190
Lee, 70 liberalism, 95
Leff, 210, 224 liberate, 250–251
legacies, 141 Liberation, 127
legalised, 176 Libya, 232, 245
legality, 129, 192, 196, 274 Licea, 210–211, 214, 223–224
Legally, legally, 105, 112–113, 124, 145– Lieber, 104
146, 166–168, 172, 178–179, 208–209, Lim, 124
219–221, 248–249, 252, 255, 257, 259, Lima, 97, 105–106, 181
261, 263 limitation, 8–9, 36, 63, 89, 91, 102–103,
Legislation, 15, 37, 97, 107, 113–114, 134, 136, 140, 176, 194–195, 214, 229,
120, 135, 190, 212, 216, 221, 227, 232, 240, 252, 255, 262
234, 257 limitless, 190, 198–199
Legislative, 5, 33, 37–38, 96, 206 Lin, 57, 70, 225
legislature, 36–37, 40, 234 linear, 16, 83–84, 119, 149, 153, 205,
Legitimacy, 7, 35, 60, 68, 148–151, 153, 208–209, 211, 219–221, 270, 279
155–159, 161–164, 179, 218–219, 227, linearity, 117–118, 213, 221
236, 243, 254, 275, 282 linkages, 24, 64, 136, 155, 236
legitimate, 26, 28, 35, 37, 130, 134, 136, Linnerooth, 201
150–151, 154–155, 157–158, 161, 209, Lisbon, 263
235–236 Lister, 65, 69
Lehmann, 245 literally, 49
Leichardt, 126 Literary, 180
Leiden, 71, 86, 162–163, 202, 243, 247 Literature, 2, 6, 59–61, 64–66, 73, 75–76,
Leighton, 202 101, 104, 153–154, 165, 195, 197, 206,
Leinfelder, 87, 164, 224 209, 250, 265, 282–283
Lemay, 223 Litfin, 2, 10, 23, 30
Lemmens, 202 lithosphere, 1, 270
Lempp, 10 litigants, 22, 62
Lendrum, 201 Litigating, 104
Lens, 15, 20, 28, 52, 102–104, 121, 149, Litigation, 3, 15, 33–34, 52, 62, 94, 100,
171, 176, 202, 276 104, 106–107, 238, 278
lenses, 3, 89–92, 101–103, 109, 272 Liu, 10, 206, 208, 215, 223
Lenton, 79, 86–87, 164, 203, 245, 259, liveability, 172
264 livelihood, 36–37, 81, 94–95, 98, 175,
LEO, 186, 199 178, 207, 213–214
Leopold, 113, 115–116, 125, 129, 132, Liverman, 85, 87, 104, 203
144–145 Liverpool, 10
Letcher, 180 locales, 20, 143, 175
Letizia, 202 locally, 35, 44, 220, 276, 278
 Index 305
Location, 69, 75, 81, 106, 159, 169, 178, Makers, 107, 234, 269, 283
198–199, 231 Malawi, 39, 42
locus, 2, 34, 175 Maldives, 135
logic, 93, 121, 255 Mall, 147
Logically, 47, 132, 235 Malm, 76, 87, 121, 126, 170–171, 180
logistical, 168 Maloney, 54, 118, 120, 126
logistics, 169 Malta, 245, 248, 263–264
Lopez, 8, 18, 20, 24–25, 28, 205–206, Malwé, 58, 69, 73, 86, 120, 125
208–216, 218, 220–224, 272, 277–279 Mama, 116, 120
López, 283 Management, 7, 49, 65, 72, 80, 107, 127,
Lorax, 22, 29 152, 163, 166, 171, 179, 197, 203, 206,
Lorimer, 171, 180 208, 210–214, 218–220, 223–224, 236,
LOS, 33–34, 87, 180, 222–224, 246, 263 241–242, 249–251, 254–256, 259–262,
Louis, 43 265, 275, 278–279, 283
Lövbrand, 115, 117, 121, 126, 150, 164, managerial, 162
236, 245 Manchester, 203
Lovelock, 1, 50, 53 mandate, 93, 166, 168–169, 178, 189,
Loyola, 87 251, 256
LTS, 188 mandated, 29, 168, 189
Lucht, 86, 203, 263 Mandelbaum, 186, 198, 202
Luhmann, 90, 92–93, 106, 191, 194, 202, manifestation, manifestations, 8, 21, 90–
274, 283 91, 112, 133, 228
Luis, 215 Manifesto, 145
Lund, 5 Mankind, 87, 126, 162, 179–180, 248,
Luxembourg, 189–190, 200, 202 265
Lynn, 50 Manuel, 264
Lynne, 54 Manuela, 215
Lyster, 164 Maori, 141–142, 145–146, 243
mar, 146
M Margil, 114, 126
MA, 52, 54, 69, 107, 116, 144, 147, 163, margin, 140, 259
202–203, 244–245, 247, 282 marginalised, 93, 97–98, 239, 273
MacDonald, 95, 106, 200, 202 Margulis, 50
Mace, 243 Marjanac, 94, 106
Maciej, 8, 226, 228, 230, 232, 234, 236, Marques, 85–86
238, 240, 242, 244, 246, 278 Marsh, 106
MacKenzie, 245 Marshall, 155, 164
Mackey, 2, 10, 131, 145 Martín, 283
Macmillan, 69, 179–180, 243, 245, 282 Martínez, 218, 223
Madrid, 81, 88 Martinus, 264
Maestro, 224 Maru, 224
Magalhães, 8, 17, 20, 73, 80, 85–86, 116, Marxism, 106
126, 138, 140–141, 143–146, 248, 250, Maslin, 19, 30, 55, 70, 114, 122, 125,
252, 254–256, 258, 260, 262, 264, 276– 170, 180
277, 279 Mason, 237, 245
Magliveras, 52 Masson, 10
magnitude, 83, 89, 171 materialisation, 261
Maguire, 29, 162 materialise, 171, 250, 256
Mahoney, 90, 107 materialism, 197–198
mainstream, 16, 67, 128, 131 Materials, 99, 189, 192, 196, 217, 275
maintenance, 96, 177, 252, 254, 259–260, Matson, 87
262 Mattei, 254, 263
majority, 39–40, 97, 116–117, 135, Matthews, 93, 107
175–176, 232 Mauna, 201
306 Index
Mawby, 41, 53 Meyer, 264
Max, 227, 245 Michels, 37–38, 53
Mazzucato, 260, 264 Michie, 244
McAlpine, 121, 126 Mifflin, 124, 146
McDaniel, 74, 87 Miglani, 127
McDowell, 186, 189, 202 migrant, migrants, 7, 166–168, 177–178,
McEldowney, 58, 70 275
McGinley, 232, 245 migrating, 177–178
McLean, 45, 53, 228, 235, 243 migrations, 176
McNeill, 127 migratory, 167, 218
McWilliam, 10 Millennium, 113, 145, 236, 247
meadows, 97 Miller, 104, 214, 223
Meaningful, 44, 57, 67, 118, 192, 195, Milligan, 124
236, 239, 277 Milne, 10
MEAs, 80, 82–83, 163 Milton, 40, 43, 46
measurement, 74, 154, 162, 259, 262 Minas, 107
Mechanism, mechanisms, 5, 8, 17–18, 23, Mineral, 57, 78, 97, 136, 190, 215, 217,
27–29, 41, 61, 74, 82, 90, 93, 95, 97– 256, 258
99, 116, 137, 151, 154, 160–161, 164, minimum, 96, 192, 212, 229–230, 257
168–169, 172, 178, 180–181, 197, 210, Ministry, 238
220, 222, 226–227, 231, 239–240, 243, minority, 97, 229, 236, 242
245, 259–260, 262, 275, 278 Mintenbeck, 10
mechanistic, 121 mismatch, 73, 83, 129, 213, 271
Media, 11, 41, 87, 97, 163, 188, 196, mission, 186, 188–189
202–204, 265 Mitchell, 145
mediate, 21, 60, 73, 93 mitigate, 40, 142, 172, 185, 192, 277
Medida, 223 mitigated, 258–259
Mediterranean, 69 mitigating, 72, 106, 142, 173, 230
Mehta, 65, 70 Mitigation, 8, 81, 102, 142, 173,
Meio, 224 186–188, 200, 203, 251, 258, 260, 274
Mélanges, 86 Mobil, 95, 105
Mensah, 282 mobilisation, 97
Menski, 38, 53 mobilise, 34, 38
Meredith, 40, 43–44, 53 mobilising, 280
meta, 9, 173, 176 mobility, 7, 165, 167–169, 171, 173, 175,
metals, 196 177, 179, 181, 275
metanarrative, 205 Mobilization, 54, 144
metaphor, 10, 24, 69, 121, 154, 162, 198, modalities, 197, 278
223 Modernity, 19, 143, 196, 201
metaphysical, 23, 96, 141 modes, 77, 90, 96, 99, 129, 132, 142, 162,
Meteoroids, 187 237, 271, 274
Meteorological, 1, 9, 11, 224 modification, 123, 207, 235
methane, 18 Mohd, 127
Method, 6–7, 42, 53, 58, 70, 91–93, Mohr, 247
104, 107, 151, 176, 194, 196, 229, 262, Monetary, 176, 178
270–271 monsoon, 79
Methodological, 3–5, 16, 26, 55, 57–59, Montevideo, 177, 181
63–64, 270, 273, 277–278, 280 Montoya, 120, 126
methodologically, 66 Montreal, 81
methodology, 16, 90, 96, 101, 105, 272 Monument, 263
Mexican, 8, 18, 28, 205–207, 209–219, Mooney, 223
221, 223, 225, 278 Moore, 122, 126
México, 222–224 MooreIII, 87
Mexico, 210–224, 270, 278 Moraes, 210–211, 214, 224
 Index 307
Morality, 245 88, 94, 99–100, 104, 107, 116, 131,
morally, 122 133, 135, 137, 141, 143–146, 160, 164,
Morchain, 282 166–170, 173–175, 177–181, 187–192,
Moreno, 218, 223 201, 203, 227, 229–230, 232, 234, 236,
Morgera, 58–59, 70 239–240, 246–248, 250, 256, 259, 265,
Morris, 40, 53, 114, 126 275, 283
Morton, 139, 141, 147 naturalise, 121
mountain, 23, 96, 136, 147, 199 naturally, 166, 175
Movement, 8, 34–37, 43–44, 46, 52–54, Navigating, 178–179, 205, 243
56–57, 65, 96–97, 113, 119, 126, 128, navigation, 199
130–131, 136, 138, 140, 146, 165, 167, NC, 105, 125, 201
169, 174, 199, 230, 245, 273, 280, 283 necessitate, 17, 23, 177–178, 249
Mugarura, 247 necessitating, 90
Muir, 130, 145–146 Negotiation, negotiations, 20, 53, 60,
Mujeres, 222 141, 168, 173–175, 177, 244, 250–251
Mukholi, 40, 53 neighbour, 41, 98
multidimensional, 196, 234, 241 Neilson, 202
Multidisciplinary, 52 NELD, 172, 175
multifaceted, 192 Nelson, 130, 145, 153, 155, 164
Multilateral, 28, 80, 84, 86, 106, 125, neoliberal, 65, 172, 224, 271
161, 163, 235, 243, 256 Neoliberalism, 180, 282
Multinational, 8, 173, 227, 238, 244 neoliberalist, 64
multiplicity, 90–91, 195, 270, 278 Nepal, 39, 41–42
multispecies, 171 Netherlands, 68, 104, 125, 163
municipal, 122, 210 Nettleton, 247
municipality, 120, 215, 218 New Zealand, 23, 57, 70, 94, 96, 112–
Munshi, 52 114, 117, 122, 127, 129, 141–142,
Murillo, 210–211, 214, 223–224 145–146, 167, 238, 243
Murray, 2, 10, 243 Newly, 40, 177, 233
Museveni, 40, 42–44, 46, 48, 54 nexus, 185, 194
MWLF, 206, 210–214, 216, 218–221 Nganasan, 199
mystery, 131–132, 195 NGO(s), 44, 46, 48, 51, 68, 153, 163,
myth, 176, 201 237, 270
mythology, 1, 49, 270 Nicaragua, 245
Nicholas, 54
N Nicholson, 52
Nachmany, 93, 107 Nicol, 70
Naess, 113, 126, 131, 146 Nicolai, 10
Naffine, 92, 107 Nigeria, 52, 98
NAFTA, 212, 214, 216, 218, 223–224 Nijhoff, 86, 162, 243, 264
Nagoya, 239, 243, 246, 278 Nilsson, 125
Narayan, 127 Niña, 1, 11
narrative, 4, 26, 37–38, 49, 87, 103, 122, Niño, 1, 79
126, 128, 170, 180, 198–199, 275, 279 nitrogen, 77–78
NASA, 74, 87, 189, 197–198, 200, 202, Noah, 125
207 Nobel, 239
nascent, 16, 104, 122, 140, 197 Noblet, 58, 70
Nash, 113, 126 Nobre, 224
nationalise, 48 nonhuman, 26, 128, 197, 245
nationality, 166, 172, 177, 230 nonhumans, 276
nationally, 276 nonlinear, 16, 74, 77, 79, 82–84, 172, 205
nationals, 189 Nonlinearity, 75, 82, 271–272
Nations, 5, 16, 20–21, 23, 28, 34, 39, 44– nonstate, 209
45, 49, 53–54, 62, 73, 80, 82–84, 86, nonWestern, 130
308 Index
Noone, 87, 126, 164, 245, 264, 283 Ochrony, 243
Norberg, 163, 223 Odorico, 11
Nord, 202 OECD, 210–211, 221, 224
Norgaard, 52 Oelschlaeger, 128, 146
Norm, 4–5, 16, 21–22, 24–29, 35, 37–38, Ogoni, 98
45–46, 48–49, 52, 56, 59–63, 66, 68– Ogoniland, 107
71, 92–93, 118, 129, 131, 138–140, Ohlin, 136, 146
144, 159, 169, 172–173, 176, 186, 191, Öhman, 125
227, 232–234, 241, 271–273 Okem, 10
Normative, 3–6, 15–17, 24–26, 28–29, Okereke, 60, 69–70
33–37, 45–49, 51, 55, 57, 60–66, 72, Okowa, 163
91, 109, 111–112, 115–118, 121–124, Okrent, 231, 245
129, 173, 177–178, 194, 196, 200–201, Oldfield, 87
234, 249, 254, 258, 270–278, 281 Oligarchical, 37, 53
Normatively, 35, 45, 48, 97, 129, 258 oligarchy, 37
Norrie, 101, 107 Olivier, 52
Norton, 106, 202, 276, 283 Olsson, 90–91, 105, 107, 125, 163
Norway, 145 Omach, 44, 53
notion, 7, 29, 35, 75, 132–133, 140, 142– Ontological, 55, 58, 90–91, 105, 132, 196,
144, 189, 195, 198, 205, 210, 227, 249, 272–273, 277
251–252, 264 ontology, 68, 91, 97, 194, 197, 277–278,
Novel, 2, 8, 55, 59, 62, 77, 129, 159, 171, 282
193, 196–197, 274, 278, 280 Oosterlinck, 256, 264
NR, 265 operationalisation, 26, 149, 155
NRC, 43–44 operationalise, 57, 61, 73, 120, 123
NRM, 43–44, 46, 48 operationalised, 61
NS, 105–106, 282 operationalising, 28, 59, 93
NSMD, 68 Operationalizing, 10, 125, 164, 264
nuanced, 57, 154 operations, 177, 188
nutrients, 78 Oposa, 62, 71
Nyka, 8, 17, 29, 226, 228, 230, 232, 234– Opportunities, 3, 33, 41, 45, 62–64, 123,
236, 238, 240, 242–246, 277–278 140, 164, 229, 238–239, 270
NZ, 243 opposition, 42, 82, 132, 137
optimism, 40, 162
O option, 27, 29, 35–36, 168, 171, 214, 227,
Oberlack, 272, 283 233, 250
Objectives, 38, 42, 49, 51, 55–56, 58–59, orbit, 7, 185–189, 191, 193, 195, 197,
63, 65–67, 73, 84, 90, 111–112, 123, 199, 201–203, 256, 258, 277
137, 151, 157, 211, 220, 255, 260 Orbital, 7–8, 185–188, 192, 195, 197,
obligation, obligations, 6, 60, 117, 119, 256, 277
129, 131, 135, 140, 159–160, 166, 186, Ordinance, 113, 116, 120, 122, 127
190, 192, 231–233, 241, 243, 251, 262, organisation, 7, 16, 20, 24, 28, 34, 36–37,
276 42–44, 46, 48, 50–51, 62, 92–93, 101,
Obote, 40, 43, 46 128, 153, 155, 159, 166–167, 169, 187–
observable, 21, 91, 195 188, 210, 213, 227, 237, 277
observer, 41, 82, 139, 191, 194 organisational, 211, 234, 259
obstacle, obstacles, 16, 35, 112, 235, 274 Organization, organizations, 1, 5, 11, 29–
Obviously, 35, 37–38 30, 44, 53, 68–69, 107, 163, 167, 176,
occurrence, 2, 75, 84, 211 180, 203, 215, 222–223, 232, 247, 265,
Ocean, 1, 9–10, 77–78, 80–81, 83, 97, 283
117, 162, 170, 247, 252, 255, 257 orientation, 6, 45, 57–58, 63–64, 112,
oceanic, 249 114, 122–123
Ochoa, 214, 224 origin, 1–2, 19, 44, 76–77, 114, 124, 126,
167, 179, 202, 264
 Index 309
originate, 95, 169, 171 Parliament, 202
Orion, 199 parliamentary, 40, 54
Osbahr, 223 Parris, 216, 224
Oscillation, 1, 79 participants, 67, 115, 194, 200
Oslo, 134, 145 Participation, 3, 6–7, 15, 17, 33, 41, 54,
OST, 186–187, 189–192 56, 82, 93, 135, 150, 153–154, 156–
Ostrom, 250, 260, 262, 264, 276, 283 157, 160–161, 173–174, 191, 210–211,
outcome, outcomes, 5, 8, 17, 21–24, 34, 213–215, 220, 224, 227, 231, 234–238,
37–39, 45, 49, 51, 63, 75, 82–83, 114, 240, 243–244, 271–272, 275–278
130, 133, 139, 150, 156, 158, 165, 169, Participatory, 36, 228, 234–238, 241–242,
172–174, 186, 200, 236, 258, 279–280 245, 279
Outline, 3, 54, 101, 114, 166, 244 Partnership, 20, 62, 72, 83, 179, 237, 243
outlined, 56, 166, 172, 279 pastures, 97, 106
outsider, 175, 178 paths. pathways, 5–7, 17, 24, 27, 51, 68,
overarching, 63–64, 78, 85, 149, 206, 208, 101, 112, 121, 123, 128–129, 133, 137,
211, 273 141–143, 183, 205–206, 220, 258–259,
overexploitation, 213–214, 217–219, 231 270, 274, 277–282
overhaul, 25–26, 28 Pattberg, 52, 65, 70
overshot, 89 Patterson, 29, 144, 280, 282–283
Ovodenko, 59, 70 Patton, 106
Owen, 58, 70 Paulus, 265
Ownership, 69, 138–139, 142, 175, payments, 178, 212
189–190 PBF, 77–79
Oxfam, 126 PBs, 252–253
Oxford, 52–53, 69–70, 86, 105–106, PDF, 53–54, 88, 107, 124, 145–146, 180,
124–127, 145, 162–164, 202, 243–246, 202–203, 222–224, 246–247, 263–265,
264–265, 283 283
ozone, 9, 77–78, 80, 176, 252 peacebuilding, 44, 53
Pearce, 94, 106
P Pears, 10
Pacha, 116, 120 Pearson, 106
Pachamama, 238 Peasant, 126
Pachauri, 273, 283 Pebbly, 199
Pacific, 69, 83, 100, 105, 135 Pecan, 215–218
Pact, 10, 82, 88, 125, 133, 141, 146, 247, Pedersen, 58, 70
256, 264–265 Pegittyn, 199
Pahl, 155, 164, 279, 283 Pelizzon, 68, 113, 126
Palacios, 213, 224 penalty, 22, 211
Paley, 215, 224 perception, 60, 74, 86, 139, 223–224, 227,
pandemic, 9 237, 253–254
Papers, 2, 53, 146, 155, 244 Percival, 58, 71
paradigm, paradigms, 59, 63, 66, 73–74, Pereira, 238, 245
79, 82–83, 85, 87, 99, 105, 111, 118– performance, 56, 173, 209
119, 122, 179, 206, 208, 250, 253, 271, Perkins, 37, 53
273 permafrost, 175
paradox, 54, 134, 191 Pernis, 105
paradoxical, 8, 140, 170, 191 perpetuate, 97, 231
paradoxically, 136 persecution, 166–167, 169
parameters, 9, 39, 76–77, 111, 120, 122, personhood, 7, 17, 23, 26, 28, 57, 68,
164, 252 113–114, 116, 122, 126, 129, 133, 136,
paramount, 21, 34, 205, 230 138–139, 141–144
Pardo, 252, 254, 264 Persons, 36, 116, 166–167, 233, 238, 243,
Paré, 223 262, 275
Parker, 104
310 Index
Perspective, perspectives, 3, 5–9, 19–22, player, 23, 174
28–29, 34–35, 55, 57, 60, 63–67, 71– plea, 124
77, 79–81, 83–85, 87, 94, 97, 105–106, Pleiades, 199
111–112, 114–115, 119–124, 127, 138, Plumwood, 113, 126
140, 148–150, 152, 154–155, 157–159, Pluralism, 5, 38, 55, 57, 63–64, 71, 96,
162–165, 178–180, 191, 194–196, 205– 102–103, 126, 197, 203, 272–273, 277
206, 208, 210, 220–221, 223–224, 226, pluralist, 66, 162
228–229, 232, 237–242, 245, 247, 252– pluralistic, 63, 90, 105, 122, 124, 186, 193
253, 255, 258, 262, 267, 272, 274–275, PMARP, 218, 224
277–279 PNAS, 86–87
Persson, 29, 68, 87, 104, 126–127, 144, Pogge, 231, 245
164, 179, 222, 245, 264, 283 Poirier, 107
perturbation, 79, 82 polar, 78, 170, 200
Perz, 65, 70 Polaris, 199
Peter, 5 Policies, 16, 20, 46, 68, 126, 129–130,
Peterson, 132, 146 168–169, 171, 190, 205, 209–211, 213,
Petro, 107, 171 219–221, 223, 230, 242, 244–245, 256
Petzold, 10 policymakers, 213, 234, 240
Phenomena, 8, 17, 50, 64, 76, 91, 123, politically, 46, 176
131, 186, 196, 205, 256 politician, 171
phenomenon, 18, 75, 94, 114, 130, 132, polity, 38, 41, 49
226, 243, 250 Pollack, 162
Philipp, 232, 245 pollute, 22, 214
Philippines, 71 polluted, 214–215
Philosophical, 3, 31, 36, 70, 91, 113–114, polluter, 22, 175, 177
122, 125, 127, 131, 136, 140, 229, 239, polluting, 22, 170, 175
274 pollution, 21–22, 69, 94, 97–98, 117, 131,
Philosophy, 50, 52, 54, 113, 124, 129– 148, 152, 172, 188, 191, 207–208, 214,
131, 147, 194, 204, 227, 239, 244, 274 217, 221, 231, 272
Physicists, 195 Pollux, 199
Physics, 74, 127, 131, 194, 202 Poloczanska, 10
Piccolo, 225 Polycentric, 99, 153, 160–161, 247, 275–
Pickering, 29, 100–101, 105, 144 277, 282–283
Pierson, 263 Pope, 131
Pimentel, 212, 224 populations, 10, 22, 166, 229, 232
Pimm, 126 Porras, 8, 18, 20, 24–25, 28, 205–206,
Piotrowska, 238, 245 208–214, 216, 218, 220–224, 272, 277–
Pitfalls, 141 279
Pitseys, 243 Portland, 9
pivotal, 28, 112, 170 Pörtner, 1, 10
plaintiff, 23, 56 Porto, 210, 224
Planck, 245 posit, 2, 18, 20, 113, 142, 208
Planet, 1, 3, 9, 19, 36, 50, 54, 68, 72, 74, positivism, 38, 64, 89, 91, 102–103
76–78, 85, 87, 89, 114, 125, 144–145, Positivist, 89–92, 94–104, 271, 273
171–172, 175, 186, 192, 197–198, 202, possibility, 9, 35, 39, 72, 83, 89, 101, 103,
205, 248, 251–255, 257, 279 143, 154, 159, 194, 196, 201, 209, 232–
Planetary, 1–2, 6–7, 9, 35, 54, 58, 64, 68– 233, 237, 249, 254–255, 258, 278
69, 73–75, 77–79, 84–87, 97, 112, 114– Posterity, 244
115, 117, 119–121, 123–129, 134, 137, posthuman, 193, 196–197
143, 149, 164, 166, 173–175, 178, 186, postmodern, 147
189, 191–193, 196, 199–201, 203, 205, postmodernist, 144
233, 240, 245, 252–253, 256–259, 261, Postsocialist, 244
264–265, 269–279, 282–283 postulate, 95, 228, 230, 234
Plato, 50 posture, 36, 63
 Index 311
Potosi, 215 253–254, 264–265, 270, 272, 277–279,
Poudyal, 243 283
Poverty, 95, 99, 130, 243 Pring, 96, 107
practitioner, 2, 24, 56–58, 61–62, 64–67, prioritise, 36, 65, 131, 201, 274
114, 163, 186, 271 priority, 7, 16, 34, 44, 93, 193, 274
Prairie, 97, 106, 218 privatisation, 65, 189
Pratchett, 10 privatization, 68
Pratiques, 86 privileged, 171, 256, 258
Prawa, 243 privileges, 6, 129, 166, 176
praxis, 16, 104 problematic, 38, 48, 57, 65, 94, 139, 212,
precarious, 24 240
precautionary, 83, 192, 216, 270, 272, problems, 5, 7–8, 26–28, 42, 58, 69,
283 80–82, 96, 99, 107, 120–121, 129, 137,
precedent, 34, 64, 95, 101, 133, 136, 139, 149, 153, 155, 170, 174, 176, 179, 191,
142, 165, 279 196, 207, 214, 219, 230, 232–233, 235,
precepts, 38, 115, 122, 138, 197 241, 248–249, 269, 272
Precipice, 2, 9, 18–20, 22, 24, 29, 89, Procedures, 93, 151, 163, 189, 191, 227,
269–270, 275, 277 234, 236–237, 240, 242
preclude, 35, 116 Proceedings, 10, 87, 203, 222, 234,
precondition, 36, 134 264–265, 276
predictability, 121, 196, 254, 269 proclaiming, 248
predictable, 8, 17, 149, 186, 194, 253, producers, 99
263, 277, 279 Production, 19, 122, 133, 164, 186, 194,
prediction, 83, 197, 224 199, 216–217, 262, 280, 283
prehistory, 19 progressive, 42, 45, 48, 100, 134–135
preindustrial, 79, 170 Proliferation, 244, 256
Prell, 224 Prometheus, 243
premise, 115, 118, 129, 189, 269 promotion, 6, 34, 40, 49, 59, 118, 120,
preoccupation, 95, 121, 123 133, 200
prerequisites, 148, 150, 155, 157–158, 160 promotional, 58
prerogatives, 24 pronounced, 7, 41, 65, 157, 160–161,
prescient, 176 275
Prescod, 186, 198, 202 proof, 1–283
prescribe, 6, 111 propagation, 56, 61, 271–272
prescriptive, 8, 114, 177, 227, 280–281 properties, 74, 90, 124, 252, 259
presence, 19, 39, 41, 233, 238 proposal, 7, 10, 20, 69, 72–73, 88, 113,
presentation, 101, 152, 202, 227 120, 125, 185, 187–189, 191, 193–197,
preservation, 130, 210–211, 221 199–201, 203, 227, 249, 252, 264, 274,
presidency, 40 277
President, 40, 81 Proposition, 35, 86, 119, 122
Preston, 115, 126 proprietary, 249
presuppose, 219, 235, 251 protectionary, 21, 166
prevention, 200, 234 protections, 15, 17, 48, 57, 135, 140
previously, 9, 28, 33, 44, 82, 93, 165, 272 protective, 43, 138, 140
Primavera, 126 Protectorate, 40
Primer, 222 protectors, 22
primordial, 49, 270 Province, 106, 192, 243
Principle, 4–5, 8, 17, 21, 27, 29, 42, 45, provision, 39, 134–135, 139, 175, 187–
52–53, 58, 61, 79, 83, 86, 93, 100, 113, 188, 190, 206, 208–210, 212–214, 216,
120, 131, 134, 138, 141, 144, 149–150, 220–221, 262
152–155, 157–164, 167, 172–173, 181, provoke, 73, 128, 271
186, 192, 194–195, 203, 206, 208–210, Przegla, 243
216, 219–222, 230, 232–236, 244–245, pseudoscience, 50
Psychology, 126, 204, 244, 269
312 Index
publication, 9, 58, 88, 113, 119, 167, 203, Recommendation, 16, 28, 65, 67, 87, 107,
224, 246 168, 175, 245, 265, 278
punitive, 22 reconcile, 15, 93, 103, 132, 137, 141,
143, 186
Q Reconciliation, 18, 44, 94, 133, 137–138,
Qu, 86 141, 143
Quantitative, 53, 104, 254, 256 Reconciling, 7, 37, 135
Quinn, 223 reconfigure, 104, 115
Quintana, 216, 224 reconnect, 185
Reconnecting, 163, 263
R reconstitution, 175, 178, 282
racial, 230 recovery, 43, 118, 260
racism, 97, 230, 238, 242 rectify, 63, 67
Raffo, 63–64, 70 Recueil, 264
Ragin, 42, 46, 53 recurrent, 57
Rahmstorf, 86 redefined, 18, 143
rainfall, 211 redefinition, 241, 248
rainforest, 79 Redgwell, 153, 163
Rajan, 231, 244 redistribution, 232, 236–237, 241, 244
Ramachandra, 132 redistributive, 233
Ranganathan, 195, 202 reduction, 10, 81, 93, 237, 250, 259, 275
Rangelands, 106 reductionism, 6, 55, 129, 172
RAPS, 1–283 reductionist, 121, 205, 208, 221, 252
Rathnasabapathy, 188–189, 202 Reed, 224
ratification, 175–176 Reef, 1, 10
ratified, 176 Reflections, 70, 73, 126, 163, 237,
ratify, 177 244–245
ratifying, 103 reflexibility, 179
Ratte, 263 reflexiveness, 137
Raulus, 161 Reflexivity, 90, 92, 100–102, 118, 173,
Rawls, 98, 228, 230, 245, 283 175, 177, 272
Rawlsian, 276 reform, 16, 44, 95, 114, 120–121, 124,
Raworth, 116, 126 131, 144, 178, 191, 224, 227, 275
Rayfuse, 162, 247 reframe, 112, 155
Raz, 233, 245 Refugee, 7, 37, 52, 166–167, 169, 177,
Reader, 16, 19, 29, 145–146, 280 179–181
realism, 91, 101, 105, 107 regenerate, 6, 113, 117
realist, 64, 89, 91–92 Regime, regimes, 8, 16, 21, 24, 29–30, 37,
reality, 7, 24, 28, 73, 83, 85, 91, 97, 101, 41–42, 44–46, 48, 50, 52–54, 56, 64–
103, 195–196, 254–255, 257, 260, 263, 65, 69, 82, 93, 98, 111, 117, 129, 134,
271, 279 137–138, 140–143, 157, 159, 162–164,
realm, 7, 20–21, 25–26, 28, 61, 85, 98–99, 166–167, 169, 172–173, 179, 195, 227,
111, 195, 269 234, 243, 249, 258–259, 261, 274, 279
REC, 87 Regional, 17, 40, 42–44, 46, 48, 60, 75,
reciprocal, 6, 51, 140, 270 78–79, 83, 118, 168, 171, 209–210,
reciprocity, 169 215, 224, 232, 235, 242, 275–277
Recognition, 3, 5–6, 8, 19, 29, 33, regionalism, 43
39, 43, 56, 68, 73, 81, 84–85, 91, regions, 4, 6, 16, 26, 67, 78–79, 100, 200,
94–96, 100, 104, 112–117, 121, 213
133–137, 140–143, 169, 191, 193, 210, Registration, 48, 189, 203
220, 227, 237–240, 242, 244–245, 257, Regsblad, 106
260–262, 269, Regulations, 186, 189–190, 215–216, 218,
271–274, 276, 278 220, 278, 282
Recognitive, 229, 237, 239–240, 242
 Index 313
Regulatory, 3, 16, 33, 37, 50, 63, 65, RES, 88, 146, 190, 198, 203, 247–248,
80, 85, 98, 102, 111, 136, 162, 188, 256, 265, 283
191–193, 208, 210–211, 214, 226, 232, researcher, 28, 51, 56–61, 63–64, 66–67,
241, 254 91, 122, 226, 228, 234, 270
Reid, 64, 70 Resilience, 7, 78, 81, 83, 85–86, 99, 101,
reimagination, reimagine, reimagining, 6, 104, 119, 148–164, 180, 206, 222–224,
56, 73, 101, 111, 177, 195, 197, 271 263, 265, 275, 279
reimagines, 6, 271 resilient, 24, 153–155, 174, 253, 257,
Reimaging, 52, 280 263
Reimagining, 5, 25, 28, 57, 123, 127, 246, Resistance, 43, 59, 141, 143–144, 152
280 Resources, 4, 7, 17, 27–28, 34, 38, 42,
Reindeer, 199 44, 52, 57, 79, 83, 96, 98, 102, 125,
rejection, 94, 252 148–152, 155–164, 167, 171, 175–178,
relationship, relationships, 2, 6–7, 9, 24, 186, 189–190, 192, 202–203, 208,
29, 38, 42–43, 49, 51, 75, 95–96, 98, 210–211, 214, 216, 218–221, 223,
113–114, 116, 119, 122, 126, 128–132, 229–232, 237–238, 245–246, 249–251,
137–143, 148–149, 174, 177, 185, 190, 255–256, 258, 260–261, 263, 269,
195, 207, 209, 213, 249, 253, 269–270, 273–274, 276–277, 279, 283
274, 277 response, 29, 55–59, 64–66, 72, 99,
relatively, 1, 7, 49, 63, 76, 111, 130, 262 111–114, 119, 121, 124, 129, 132,
relativist, 91, 98, 103 135, 145, 153, 155–156, 159, 165, 168,
relevance, 24, 59, 63, 65, 67, 89, 250, 256, 171, 173, 178, 197, 208–209, 216, 219,
271 239–240, 249, 251, 278
relevant, 47–48, 59, 61, 63, 65–66, 114, Responsibility, 2–3, 20, 33, 37, 42, 52, 71,
117, 155, 159, 165–166, 174, 189, 195, 96, 103, 121–122, 124, 126, 128, 131,
197, 213, 232, 234, 248, 250, 254, 262 135–136, 141, 143, 160, 164, 166–167,
reliance, 96, 170, 191 169–170, 177–179, 187, 189–191, 201,
relief, 46, 168 215, 230, 237, 243, 251, 258, 262–263,
Religions, 131, 145 274
relocate, 28, 166, 177 Reston, 264
relocation, 168, 178 restoration, 95–96, 115–116, 211, 251,
remediate, 22, 271 254, 260, 262
remediation, 22 restrictions, 37, 44, 233
remedy, 6–7, 103–104, 166, 169, 173 Resurgence, 104, 128, 144
removal, 139, 251, 259 Rethinking, 7, 10, 38, 69, 125, 143, 196,
Rendón, 212, 224 223, 243–245, 275
Renewable, 106, 263 retirement, 4, 26, 28
renewal, 212 retributive, 178
Reparative, 37, 52 revenue, 98, 260
repeatedly, 235 Revolution, 19, 52, 74, 87, 114, 121, 124,
Repentigny, 195, 201 144
repertoire, 172 revolutionary, 29, 50, 67, 241
replacement, 29, 41–42, 142, 241 rewilding, 274
replicate, 63, 141 Riahi, 283
representation, 2, 23, 28, 47, 129, 188, Richardson, 86–87, 164, 203, 224, 264
257 Richter, 52
representatives, 20, 114, 136, 228, 242 Rienner, 54
Republic, 53, 116, 120, 127 Rijswick, 222
repudiate, 113, 274 riparian, 159
repudiation, 115 ritual, 236
reputation, 44, 176 Rivers, 66, 68, 99, 113, 117, 126–127,
Requirement, requirements, 48, 55, 94, 146, 212, 214–216
98, 173, 187, 189, 231, 234, 247, roads, 98
256–257, 274 Robards, 164
314 Index
Röben, 244 Sber, 54
Robert, 10, 37 SBSTTA, 81, 87
robust, 64–66, 123, 177 scalar, 24, 28, 99, 177, 209
Rockström, 75, 77–78, 87, 119, 125–126, Scandinavia, 69
148–151, 163–164, 203, 224, 227, 245, scarce, 159, 213
252, 263–264, 273, 283 scarcity, 213
Rockstrom, 86 scenario, 101–102, 171
Rodgers, 113, 120, 126, 142–143, Scene, 161, 199
146 scepticism, 143, 229
Rodriguez, 245 Schäpke, 282
Roots, 50, 107, 131, 138, 235, 264 Scheffer, 87, 245
Rowe, 234, 245 Schellnhuber, 74, 79, 86–87, 224,
Ruhl, 83, 87, 222, 229, 245 245, 263
Rühs, 96, 107 schemes, 65, 241–242
Ruiz, 218, 223 Schenk, 54
Rulli, 9, 11 Schlager, 222
Ruru, 114, 126 Schlosberg, 52, 145, 238, 245
Ruse, 50, 54 Schlüter, 162, 164
Ruzek, 74, 87 Schmidt, 150, 164
Ryan, 126 Schmook, 223
Schneider, 243, 245
S scholarly, 2, 15, 39, 49, 66, 114, 190, 195
SA, 246 Scholars, 2–3, 17–18, 23–24, 35, 49–51,
Sabel, 157, 162, 164 56–57, 59–67, 72–73, 83, 85–87,
Sachs, 123, 126 90–91, 95, 104, 111, 114, 120, 124,
sacred, 126, 215, 218 165, 177, 198, 229, 248, 276
safeguard, 81, 148, 158, 161, 205, Scholarship, 2, 5–6, 21, 28, 49, 56, 58–59,
254, 265 61–64, 66, 70–71, 87, 89–91, 95, 101,
safely, 34, 177 103–104, 122, 124, 185, 194, 197–198,
safety, 36, 95, 188, 261 200–201, 222, 269–270
Safi, 142, 146 Scholtz, 249, 264
Sage, 107, 245 Schoon, 150, 156–157, 162, 164
Sahara, 79 Schor, 53
Sahel, 79 Schorlemer, 265
Sakdapolrak, 154–156, 163 Schreckenberg, 243
Salazar, 198, 201 Schroeder, 85, 104, 163
salient, 48 Schulz, 283
Salim, 127 Schuster, 53
Salleh, 172, 174, 180 Schutz, 213, 223
Salutare, 264 Sciences, 10, 18–19, 58, 63–64, 70,
Salvador, 232, 245, 247 72, 74, 87, 90, 131, 154, 170,
Sampford, 29, 162 193–195, 203, 206, 222, 260, 264,
Sánchez, 283 271, 278
SánchezBayo, 273 Scientific, 5, 7, 9, 34, 50, 55, 74, 80–81,
sanctions, 92 87, 92, 103, 111, 115, 117, 120–121,
Sanderson, 87 131–132, 154, 161, 185, 187–190,
Sanghi, 201 193–194, 200, 203, 205, 225–226, 237,
sanitation, 99 250, 252–255, 265, 272
Sarra, 101, 107 scientifically, 119, 157
Satellite, 186, 188–189, 193–194, 197, scientist, 1, 37, 50, 74–75, 77, 157, 194,
199, 202 198, 213, 253
Satgar, 246 Scobie, 29, 144
Sato, 10 Scoones, 280, 283
Saunders, 52, 123, 126 Scotford, 93, 107
 Index 315
SCRA, 71 Similä, 164
scrutinise, 100, 165 Simma, 265
SDGs, 34, 107, 146 Simon, 53
Sea, 8, 17, 22–23, 78–79, 83, 96, 100, Simonelli, 1–283
147, 162, 175, 178, 180, 190, 195, 200, simplicity, 18, 20, 22, 42, 44, 46, 61, 65,
202–203, 232, 246–247, 263, 279–280 81–82, 91, 94, 116, 135, 139, 150,
seabed, 232, 258 165–166, 175, 210, 242, 253, 256
secretariat, 82, 174 Singapore, 124, 282
sectoral, 16, 80, 84, 226 Singer, 113, 127
sectors, 15, 28, 173–174, 186 situation, 20, 42, 148, 157, 165–166, 169,
Security, 73, 86, 101, 106, 186, 210, 216 171, 211, 215, 226, 228–229, 254, 260,
sediments, 89 276
Segurança, 263 Sjåfjell, 192, 203
selfgovernance, 105 Skirving, 10
semantics, 198 Slaughter, 59, 61–64, 71
seminal, 74, 113, 144 slavery, 231
Sen, 239, 246 Smith, 53, 74–76, 85, 106, 125, 181, 276,
sensitivity, 58, 131, 193 280, 283
sentient, 113, 117, 196 SMO, 34, 37–38
Sentipensar, 105 Snowden, 99, 106
Sessions, 116, 127, 174–175 Snyder, 145
Settlement, 93, 96, 114, 116, 126–127, Soares, 210–211, 214, 224
141–142, 146, 191 Sobere, 49, 52
Setzer, 94, 100, 107 Socialist, 246
Seuss, 22, 29 Societal, 95, 98, 156–157, 170, 172,
sewage, 207 207–209, 213, 216, 231, 249, 270, 283
Shalit, 233, 244 societies, 72, 74, 77, 84, 96, 156, 166,
Shamanism, 201 171, 173, 176, 179, 192, 205, 229,
Shambhala, 127 231–232, 235, 241–242, 248, 253,
Shapiro, 205, 224 257–258, 262, 271
shareholder, 100, 191, 242 socioecological, 207, 216, 219, 227, 275
Shelton, 135, 146, 158–160, 164, 229, socioeconomic, 227, 230, 260
231, 246, 249–251, 258, 260, 264 socioenvironmental, 36
Shen, 225 Sociological, 34, 53, 105–106, 227, 229
Shiva, 132, 146 Sociology, 54, 104–106, 193, 269, 273
Shongwe, 130, 135, 137, 146 sociopolitical, 101
shortages, 93 Soininen, 157, 164
shortcoming, 8, 16, 65, 67, 227, 235–236, Solidarity, 71, 233
242, 271, 278 Solis, 215, 223
Shukla, 224 Sólon, 238, 246
Siberia, 199 Solorio, 215, 218, 223
Siebenhüner, 85, 104 solution, 8, 17, 58, 81, 85, 112, 121, 165,
Sierra, 136, 138–139, 141, 147 169, 171, 177, 230, 233–237, 239–240,
Sigma, 53 242, 253, 256–257, 262, 274–275, 282
significance, 45, 116 Sonora, 215, 218, 223
signify, 272 Sons, 202
signposts, 3, 15, 23–24, 29, 277 Soromenho, 85–86
Sikkink, 21, 29, 59–60, 69 SOS, 86
Sikor, 238, 240, 246 Soul, 36, 107
Silent, 113, 124, 215 Sousa, 56, 69
silo, 3, 5, 15, 23–24, 27, 29, 116, 119, Southeastern, 223
142, 278 Sovereign, 19, 53, 105, 118, 140, 178,
siloed, 23, 173, 255 252, 255
Siloing, 117
316 Index
Sovereignty, 7, 19–21, 27–28, 79, 135, statu, 9, 36, 40–41, 95, 98–99, 129, 136,
138–140, 142, 147, 159, 166, 170, 177– 144, 166, 175, 180, 187, 193, 198, 237,
178, 244, 251, 254–257, 263, 275–276 239–242, 248, 261
Sowards, 139, 146 statute, 43, 92, 101, 118, 224, 232, 246,
Soyapi, 42, 48, 54 270
spacecraft, 187–188 Stefánsson, 272, 283
spacefaring, 187, 189 Steffen, 74–80, 82–83, 85–87, 114, 121,
spaceflight, 189 126–128, 145, 148–149, 151, 164, 197,
spacelaw, 203 203, 205–206, 208, 224, 245, 253,
spaceresources, 202 258–259, 262, 264–265, 283
spacetime, 195–196 Stellini, 248
SpaceX, 186, 202–203 Stempel, 96, 107
Spagnuolo, 64, 71 Stephens, 73, 87, 115, 121, 127, 149, 164,
spatial, 20, 55, 74, 78, 149, 153, 206, 220, 227, 246
247, 255, 281 Stevens, 99, 107, 202
Spear, 19, 282 Stevenson, 174, 180
specialised, 57–58, 64, 93, 102, 271, Stewardship, 5, 54, 57, 72, 127, 131,
273–274 163–164, 198, 200, 240–241, 264–265
Species, 2, 4, 6–7, 15–17, 22–23, 28, 66, Stifled, 125
75–76, 86, 89–90, 96, 99–100, 113, Stipple, 121
115, 118, 122–123, 128, 130–131, 135, Stirling, 283
166, 170–171, 185, 194, 208, 210, 216, Stocker, 201
218–219, 269, 272, 282 Stockholm, 130, 230, 246
specificity, 18, 51, 239 Stoermer, 76, 86, 111, 124, 205, 222
speech, 237, 263 Stoll, 163
sphere, 6, 8, 194, 198, 210, 228, 239–240, Stoltenborg, 212, 214, 216, 218, 224
258, 278 Strack, 139, 142, 146
Spiegel, 37, 52 strand, 133, 195
Spillover, 217 Strategic, 37, 49, 72, 278
spiritual, 7, 130–131, 136, 140–142 Strategies, 53, 107, 155–157, 168, 179,
spirituality, 131 205, 220, 236
spiritually, 113 Stratigraphic, 19, 87, 89, 164, 224
Spiro, 70 stratospheric, 77–78, 80, 176
Sprintz, 175, 180 strength, 39–40, 44, 133–134, 143, 157
Sriram, 63–64, 70 stressors, 208–209, 216
SSR, 188 Strictly, 129, 148, 159
stability, 21, 77, 83, 148, 154, 158, 170, Stringer, 214, 223–224
178, 205, 212, 253–254, 259, 261, 269, Stripple, 126, 245
271 Structural, 3–4, 8–9, 26, 30, 38, 59, 121,
Stakeholder, 65, 153, 161, 167, 189, 191, 150, 227, 248–251, 253, 255, 257, 259–
209, 211, 219–221, 223, 234, 236, 240, 265, 277, 279–280, 283
242–243, 269 Studien, 244
standards, 4, 27, 35, 59, 93, 100–101, Subcommittee, 187, 203
187–188, 203, 210, 213, 221, 241, 250, subdisciplines, 25, 28, 64
278 subfield, 57, 59, 63
standpoint, 8, 23, 91, 248–249, 252 Subjectivist, 90–91
STAP, 224 subjectivity, 8, 131, 196
Starlink, 202 Submission, 82, 87–88
statehood, 177 subnational, 39
stateless, 177, 190 subsidiarity, 208–209, 219–221, 278
statements, 82, 101, 132 subsistence, 81, 208
Static, 4, 6, 16–17, 19, 25, 86, 255 Substantive, 2, 35, 43, 52, 58, 107, 158,
statist, 16 229, 234–236, 241–242, 250
subsystems, 79
 Index 317
subunits, 21, 177 Tallberg, 105
Success, 39, 59–61, 100–101, 120, 244 Tamaqua, 113, 127
successor, 40, 43, 253 Tams, 61, 71, 249, 265
Sudan, 135 Tanasescu, 114, 127
Suh, 34, 54 Tangible, 63, 250–251, 255–256, 264, 282
Suiseeya, 240, 246 Tarazed, 199
summarised, 157, 270, 275 Tarlock, 83, 87
Summit, 83, 130, 248 Tartarus, 49
supplanting, 61 Taskforce, 2, 10, 69, 104
Supplemented, 114, 232, 274 Tau, 53
supportive, 3, 6, 15, 33, 48, 80, 227 Te, 23, 96, 102–103, 105, 113, 116, 118,
supremacy, 198 124, 126–127, 141, 146, 180, 275
Supreme, 71, 94, 199 Te Urewera, 113, 127, 141
surrounding, 7, 56, 63, 67, 74, 94–95, 97, technocratic, 35, 157
101, 103–104, 196, 200, 275–278 Technological, 19, 81, 87, 101, 121, 155,
surrounds, 57 196, 200, 217
Survival, 8, 23, 46, 49, 77, 132, 141, 179, Technology, 19, 105–106, 170, 180, 186,
186, 199, 263 188, 193–194, 196, 202, 217, 244–245
Susskind, 237, 246 teeming, 50
sustain, 16, 37, 84, 116, 122, 137, 152, Teitiota, 167
162, 263 TEL, 106
Sustainability, 3–4, 7, 17, 27, 35, 56, 65, Teleconnections, 75, 79, 271–272
68–70, 90, 98, 105, 107, 109, 123, 125– telecoupled, 223, 283
127, 130, 136, 144, 152, 159, 161–162, Telecoupling, 206, 208–209, 215–221,
173, 185–186, 188, 192–193, 202–204, 278
208, 210–211, 213, 221–223, 226, 232, temperature, 1, 79, 170, 173, 258
244–245, 247, 283 temporal, 20, 55, 78, 153, 206, 281
Suttle, 228, 246 temporally, 20, 171, 255
Suzuki, 144 Tendencies, 53, 133
Svedin, 163 tenet, 83, 114–115, 119, 121, 123, 274
Swanston, 61, 68 Tengö, 283
Sweden, 163 tension, 3, 9, 13, 21, 40, 44, 60, 131, 138,
Switzerland, 107, 135 142–143, 158, 194, 267
symptomatic, 80, 129 Tentacular, 125
synergy, 16, 33, 56, 58, 64, 80, 82, 124, terrain, 67, 199
129, 142, 274–275 Terre, 86
Synthesis, 71, 222, 280, 283 terrestrial, 75, 78, 80, 170, 186, 189, 192,
systematic, 5, 15, 34 196, 198, 270
systematically, 208 Territorial, 19, 23, 105, 248, 250–257,
systemic, 7, 26, 28, 57, 59, 64–66, 74, 261, 279
173, 209, 228, 253, 283 territoriality, 189, 256
systemically, 58 territorio, 222–223
Systems, 2–3, 5–9, 16–24, 26–29, 36, 53, territory, 1, 140, 172, 177–178, 198, 215,
55, 58, 62–68, 72, 74–75, 78, 82–83, 224, 231, 239, 250–251, 254–255
87, 89–93, 95, 103, 107, 111–117, 119, Teubner, 191, 203
122–123, 129, 133–135, 140, 143, 148– TFCD, 101
150, 153–160, 162–166, 170–176, 178, Thames, 94
183, 190, 194, 197, 202, 206, 208–211, thematic, 9, 18, 267
214–221, 223–224, 226, 235, 238, 242, themes, 15, 59, 63, 66, 111–112, 114–115,
252, 256, 265, 269–275, 277–283 163, 270
Theology, 53
T Theoretical, 3–6, 16, 24, 26, 38, 49,
Tàbara, 281, 283 55–56, 58–60, 62–65, 67, 111, 114,
Talbot, 136, 146
318 Index
148–149, 151–152, 154, 185, 194, 197,
206, 232, 271, 273, 277–278, 282–283
theoretically, 37, 63–64, 66–67, 103
theorist, 92, 98, 113, 144, 196
Theory, 3–4, 6, 8, 10, 16, 24–25, 30, 38,
51, 53, 55–56, 63–64, 66–69, 71, 83,
90–91, 105, 111–114, 129, 149, 151,
157, 162, 164, 201, 206, 221–223, 228,
233, 239–240, 243–247, 254, 271,
273, 282
Thomalla, 223
Thomas, 68, 104, 124, 283
Thornton, 106
threat, threatened, 96, 135–136, 159, 169,
172, 216, 231, 272
threatens, 19
threats, 152, 208, 215, 229, 231
threshold, 57–58, 74, 77–79, 82–84, 126,
149, 152, 209, 258–259, 271–273
tide, 34, 203
Tignor, 10
Tijuana, 212
timeframe, 212, 237
TMT, 202
toehold, 5–6, 55, 62
Tolba, 248–251, 265
Tollefson, 2, 11
Tompkins, 161
Toope, 64, 68
topic, 2, 16, 38, 62, 168, 174, 180, 193,
203, 250
Torda, 10
tort, 94, 191, 270
Torture, 167
totalitarian, 46
Totalitarianism, 179
Toth, 201
Townshend, 93, 107
tradition, 20, 38–39, 50, 67, 100, 107,
114, 138, 185, 198, 200, 239
Tragedy, 52, 101, 104, 273
Trajectories, trajectory, 36, 87, 90, 172,
203, 205, 208, 253, 258, 264
Transactions, 21, 70, 127, 217, 260
transboundary, 117, 159, 163
transcend, 16, 74, 84, 89, 114, 118, 248,
252, 282
transcorporeality, 193–194
Transdisciplinary, 152, 185, 193–195,
200–201, 269, 279–280
transform, 5–6, 10, 34, 150, 154, 274, 278
Transformation, transformational, 5–7,
16–18, 27, 29, 72–73, 75–76, 86, 89,
91, 102–104, 111, 116, 126, 128, 132–
133, 139–140, 153, 171–173, 175, 209,
219–220, 222, 224, 271, 273–274, 277,
280–282
Transformations, 5, 24, 26–27, 29, 83, 89,
92, 102, 104, 163, 263, 272, 282–283
Transformative, 3–5, 7, 15, 17, 24–25, 27,
29, 49, 96, 101–103, 107, 122–124,
128–130, 138–139, 142–143, 153, 155–
156, 183, 220, 270, 277–280, 282–283
transformed, 75, 119, 159, 207
Transforming, 5, 86, 93, 104
transgressed, 253, 261
transgression, 79, 82, 84, 215
Translation, 141, 194, 273, 277, 280
Transnational, 10, 50, 58, 61, 68–71,
86, 105, 125, 127–128, 145, 172–173,
190–191, 201, 223, 243–244, 247
transparency, 164, 227, 234, 236–237
treatment, 116, 159–160, 240, 250
Treaty, 16, 21, 64, 71, 73, 82, 85–87, 130,
138, 142, 151, 167, 172, 175–178, 181,
186–187, 203, 212, 214, 235, 244,
252, 276
Tribunal, tribunals, 94, 96, 102, 107, 118,
126, 137, 142, 273
Tripp, 41–44, 54
Trump, 35, 107, 137, 188, 203
Trusteeship, 5, 70, 73, 86, 142
truth, 90, 198, 234, 258
Tübingen, 247
Tulumello, 71
tundra, 199
Tunisia, 232, 247
Tupua, 23, 96, 103, 105, 116, 118, 124,
126–127, 141, 146, 275
Turner, 45, 54, 87
Tuttle, 202
TXT, 202
Tyne, 85–87
Tyson, 87
Tzanakopoulos, 61, 71
U
UC, 124
UDHR, 159
Uganda, Ugandan, Ugandans, 34,
39–46, 48–49, 52–54, 270
UK, 10, 54, 188, 204, 224
Ulfstein, 237, 243
UN, 5, 21–22, 81–82, 84, 88, 133, 138,
140, 146, 165–166, 169–170, 172–174,
177–180, 187–188, 195, 203–204, 236,
239, 246–248, 250–251, 256, 263–265,
283
 Index 319
Una, 222 V
unavoidable, 227, 234, 236 Vago, 93, 107
Uncertainty, 74–75, 83, 87, 89, 98, 101, Vandana, 132, 146
103, 117–119, 123, 135, 151, 156, 158, Vanhala, 34, 54
171, 188, 213–214, 219, 221, 226, variability, 16, 75–77, 82, 84, 255
237, 272 variables, 9, 30, 34, 161, 196, 252
UNCLOS, 180, 195, 246 variation, 15, 17–18, 186, 198, 211
UNCSD, 88 variety, 2, 46, 75, 95, 196–197, 232, 279
Underdal, 54 Vatican, 131
underdeveloped, 41, 59, 172, 231, 242 Vazquez, 218, 223
underpin, underpinnings, underpins, 2, 9, Vedder, 265
15, 74, 113–114, 121, 125, 137, 144, Vega, 199
248, 252–254, 280 veneer, 236
underscore, 6, 57, 60, 197–198 venture, 190, 192
understandings, 8, 24–25, 60, 67, 90, 282 Verchick, 164
undeveloped, 231–232, 278 Vermeylen, 240, 247
UNDOC, 88, 146, 203, 247, 265 Vervoort, 283
UNDRIP, 141, 143, 283 veto, 48, 175–176
UNEP, 62, 69, 88, 107, 264 viable, 23, 165
unequal, unequally, 26, 28, 104, 156, 159, victims, 166
170, 208, 239 Viegas, 264
UNESCO, 5, 73, 85, 257, 265 viewpoint, 28, 57, 137, 143, 218, 251
UNFCCC, 36, 54, 80–81, 83, 88, 168– Villagrán, 213, 224
169, 172–175, 178, 180–181, 246–248, Viñales, 244
250–251, 265 Vincent, 90, 107, 276, 283
UNGA, 251, 256 Viñuales, 115, 122, 127
UNHCR, 166–167, 169, 175–176, 181 violation, 206, 208, 215, 217–218, 221
unintended, 80, 170, 192, 196 Violence, 105, 107, 169, 200, 246
units, 17, 21, 23, 211, 276 virtue, 189
universality, 118, 120, 201 vision, 15, 17, 28, 49, 64, 82, 92, 101,
universally, 169, 176, 198 130, 138, 211, 251–252, 256, 278
Universe, 8, 58, 75, 131, 194–195, 256 Visser, 233, 247
unlawful, 233 vital, 36, 129, 253, 255
unmanaged, 167 vitality, 196
UNOOSA, 188, 203–204 Vogel, 132, 147
unprecedented, 7, 76, 81, 119, 123, Voigt, 53, 249, 263–265
148–149 Vojnovic, 229, 247
unpredictable, 75, 83, 119, 123, 131, 149, Völkerrechts, 263
151, 159, 193 Vostok, 75
Unravelling, 223 vulnerabilities, 167
unrealistic, 17, 20, 263
unsettle, 200, 212, 214 W
Unstable, 46, 172, 175, 178, 242, Wadsworth, 244
255, 259 Wai, 127
Unuigbe, 49, 54 Waitangi, 142
urgency, 57, 128–129, 249 Wales, 97
USA, 95, 113, 116–117, 122, 127, Walker, 153, 162–164, 229, 240, 247, 263
203, 222 Walkowicz, 202
USSR, 170 Walnycki, 70
utilisation, 83, 159, 167, 190, 192 Walter, 3, 33–34, 36, 38, 40, 42, 44, 46,
utilitarian, 96, 194, 200, 271 48, 50, 52, 54, 270
Utilization, 204, 212, 246 Wapner, 144, 147
Utopia, 124
Uzoigwe, 40, 54
320 Index
Warner, 6, 16, 28, 128, 130, 132, 134, Winch, 195, 204
136, 138, 140, 142, 144, 146, 226, 272, Winkelmann, 263
274, 276 winner, 239, 280
warrant, warranted, 45, 171 Wirikuta, 215, 221
Warren, 97, 283 Wirtschaft, 247
Warsaw, 168, 180–181, 243 Wit, 87, 246
Washington, 53, 86–87, 210, 225 Witze, 187, 204
Wasim, 101, 107 WMO, 1, 11
Watershed, 210, 213–215, 220–221, 223 Wolfe, 265
Watson, 224 Wolfrum, 163, 244
Watts, 98, 107 Woolfson, 191, 201
weaknesses, 39, 103, 133, 157 Workshop, 5, 61, 264
wealth, 98, 116, 159, 171, 194, 201, Worlds, 9, 132, 141, 145
203, 260 Worldviews, 125, 145
weapon, 19 Worster, 167, 181
Weatherall, 45, 54 Wostl, 155, 164, 279, 283
Web, 92, 186, 202, 277, 282–283 Wrange, 86
Weber, 35, 54, 227, 247 Writings, 145, 228, 233
Wedberg, 282 WW, 202
Wehrden, 283 Wyckhuys, 273, 283
Weil, 96, 107
Weinstein, 186, 198, 202 X
Weiss, 20, 30, 100, 106, 167, 181, 229, xenophobic, 177
231, 233, 243 Xepapadeas, 223
Wellington, 146
Welsh, 60, 71 Y
Wendt, 19, 30 Yakubu, 98, 107
Werner, 38 Yakut, 199
Westley, 105 Yamuna, 117, 120, 141, 146
Westphalia, 177, 181 Yang, 58, 71, 225
wetland, 163, 175 Yangtze, 225
Whanganui, 23, 28, 57, 96, 105, 113, yaqui, 218, 223
116–118, 124–127, 129, 141–143, Yasuni, 70
145–146 Yoweri, 40
Widerberg, 283
Widłak, 226, 247 Z
wielded, 115 Zadek, 101, 107
Wienhues, 210, 225 Zalasiewicz, 87, 89, 104, 107, 127,
Wilderness, 130–132, 139, 145–146, 199 148–149, 164, 170, 181, 224, 253, 265
wildfires, 208 ZED, 52
wildlife, 95, 98 Zeeuw, 223
Wiley, 245 Zeitlin, 157, 164
William, 50, 87, 104, 107, 127, 136, 164, Zelli, 52
181, 224 Zervaki, 236, 247
Willis, 239, 247 Zhai, 10
Wilson, 197, 204 Zhang, 207, 225
Wilton, 141, 147 Zoido, 29
WIM, 168–169, 172–176, 178, 180 Zondervan, 104, 243
Wiman, 121, 126, 245