Constitutional international environmental law for the Anthropocene?

• Date: 01 November 2018
• Author: Louis J. Kotzé,Wendy Muzangaza
• DOI: http://doi.org/10.1111/reel.12244
• Published date: 01 November 2018

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Constitutional international environmental law for the

Anthropocene?

Louis J. Kotz

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Wendy Muzangaza

Correspondence

Email: lkotze@lincoln.ac.uk International environmental law (IEL) seems unable to comprehensively and effect-

ively respond to the Anthropocene’s deepening socio-ecological crisis. While there

are several reasons for this state of affairs, one in particular relates to the argument

that IEL lacks higher-order global constitutional-type norms that could constrain

State sovereignty and the free will of States in their relations with the environment.

As a contribution to the debate on the effectiveness of IEL in the Anthropocene,

we seek here for such higher-order constitutional norms in the areas of customary

international law and jus cogens. We conduct the ensuing analysis through the lens

of the ‘normative hierarchy’and ‘global constitutionalism’theories of international

law and critically reflect on the extent to which these norms could play a meaning-

ful role to mediate the human–environment interface in the Anthropocene.

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INTRODUCTION

We are in the midst of one of the most profound, and potentially

fatal, existential crises in humanity’s relatively short existence on

Earth. This crisis, which is of our own making, is vividly explicated by

the Anthropocene and its imagery. In the Anthropocene, humans as

ecological agents have changed and continue to change Earth and its

natural system, transforming Earth ‘rapidly and irreversibly into a

state unknown in human experience’.

1

As a result of these human-

induced impacts, the Earth is moving into a critically unstable state,

with the Earth system gradually becoming less predictable, non-

stationary and less harmonious as a result of the global human

imprint on the biosphere.

2

On the back of the Anthropocene’s imagery, it has further been

suggested that humanity has already crossed some, and are fast

approaching several other, planetary boundaries.

3

These planetary

boundaries determine the self-regulating capacity of the Earth sys-

tem, otherwise understood as biophysical thresholds. The boundary

theory seeks to refocus attention on the non-negotiable planetary

preconditions that humanity must respect in order to avoid the risk

of calamitous Earth system change. As a global environmental

change threshold reference framework, planetary boundaries are sig-

nalling that humanity is entering a so-called ‘unsafe operating

space’,

4

which implies a risk of damaging or catastrophic loss of

existing ecosystem functions and services across the biosphere.

5

Of

the nine planetary boundaries,

6

it is estimated that four have already

been crossed, namely, climate change, genetic diversity, land system

change and biochemical flows.

7

The Anthropocene and its related image of planetary boundaries

could have myriad far-reaching, but underexplored, epistemological,

ontological and normative implications for international environmen-

tal law (IEL), which still remains the most comprehensive body of

law encapsulating all post-national norms that seek to mediate the

human–environment interface. As the world is searching for new

paradigms to understand the causes and consequences of, and to

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1

AD Barnosky et al, ‘Approaching a State Shift in Earth’s Biosphere’(2012) 486 Nature 52,

52.

2

LJ Kotz

e, ‘Rethinking Global Environmental Law and Governance in the Anthropocene’

(2014) 32 Journal of Energy and Natural Resources Law 121, 121.

3

J Rockstr€

om et al, ‘Planetary Boundaries: Exploring the Safe Operating Space for Human-

ity’(2009) 14 Ecology and Society 1, 1.

4

W Steffen et al, ‘The Anthropocene: Conceptual and Historical Perspectives’(2011) 369

Philosophical Transactions of the Royal Society 842, 860.

5

BW Brook et al, ‘Does the Terrestrial Biosphere have Planetary Tipping Points?’(2013) 28

Trends in Ecology and Evolution 396, 396.

6

These are: climate change, biosphere integrity, land system change, freshwater use, bio-

chemical flows, ocean acidification, atmospheric aerosol loading, stratospheric ozone deple-

tion and novel entities.

7

J Rockstr€

om et al, ‘A Safe Operating Space for Humanity’(2009) 461 Nature 472, 472;

and more recently, W Steffen et al, ‘Planetary Boundaries: Guiding Human Development on

a Changing Planet’(2015) 347 Science 736.

DOI: 10.1111/reel.12244

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