Editorial

• Date: 01 July 2018
• Author: Harro Asselt
• DOI: http://doi.org/10.1111/reel.12253
• Published date: 01 July 2018

Editorial

Who or what is environmental law for? This loaded question ties

into the broader ethical question of how humans relate to nature.

An anthropocentric view emphasizes nature's instrumental value to

humans. An ecocentric perspective stresses nature's intrinsic value.

While much has been written on the important ethical dilemmas

underpinning this dichotomy and their reflection in environmental

law,

1

it is important to understand how the contestation between

these two ethical discourses continues to influence the development

of environmental law. In the first article of this issue of RECIEL, Vito

De Lucia strengthens our understanding in this regard by investigat-

ing the relationship of two key concepts in environmental law, the

ecosystem approach and ecosystem services. As De Lucia explains,

though both are grounded in ecology, the ecosystem approach has a

more ecocentric focus whereas the notion of ecosystem services can

be considered anthropocentric. Over time, however, the two con-

cepts have become increasingly entangled. Drawing on relevant

scholarly literature and examples taken from the international biodi-

versity and marine context, De Lucia shows how ecosystem services

are framed as being needed to implement the ecosystem approach

and, conversely, how the ecosystem approach is increasingly seen as

a way to secure the provision of ecosystem services. In a final step,

he adopts a biopolitical lens to reveal how the two concepts con-

tinue to push and pull each other, transforming the care for nature

into its subjugation.

The following article by Shawkat Alam and Sheikh Noor Moham-

mad also explores the ecosystem approach, but here the authors

focus on a more practical application of the concept in the Sundar-

bans mangrove forest, a World Heritage site in Bangladesh. Alam

and Mohammad identify some of the core principles of the ecosys-

tem approach, and examine to what extent these principles are

applied in practice in the case of the Sundarbans. To put the ecosys-

tem approach in practice, they argue, Bangladesh requires legal and

policy reform, awareness‐raising and capacity‐building activities for

local businesses and communities, as well as financial support.

In the next article, Benoit Mayer gives a strong defence of the

obligations of conduct put in place by the Paris Agreement on cli-

mate change. He traces the origins of the dichotomy of obligations

of result and obligations of conduct back to French civil law, and

explains how this dichotomy has evolved in different fields of public

international law. Mayer argues that the obligation of States to

ensure that activities within their jurisdiction respect the environ-

ment of other States or of areas beyond national control (i.e., the

no‐harm principle) is, in essence, an obligation of conduct. He further

shows how obligations of conduct have featured in treaties on cli-

mate change, including the United Nations Framework Convention

on Climate Change, the Kyoto Protocol and, most recently, the Paris

Agreement. He then moves on to dispel the idea that obligations of

conduct are less effective than obligations of result, arguing that

obligations of result can be met through luck, whereas an obligation

of conduct requires national action. While Mayer acknowledges that

assessing compliance with obligations of conduct can be challenging,

he suggests that the Paris Agreement's link between obligations of

conduct to take national measures and the objectives of parties’

nationally determined contributions can lead to both increased ambi-

tion and participation.

The following article returns to the dichotomy of anthropocen-

trism and ecocentrism in light of the emergence of a new geological

epoch, the Anthropocene. As the term suggests, the Anthropocene

is characterized by the fact that humans are able to drive large‐scale

changes in our environment. Against this background, Edwin Alblas

provides a detailed examination of the EU's environmental objectives

in light of the emergence of new technologies that allow for large‐

scale manipulation of the environment, such as solar climate engi-

neering. Drawing on environmental ethics, he distinguishes the

anthropocentric and ecocentric rationales of environmental law.

Alblas then analyses relevant case law by the Court of Justice of the

EU to understand the extent to which the objectives of EU environ-

mental law –preserving, protecting and improving environmental

quality on the one hand, and protecting human health on the other

–can be at odds with each other. He concludes that human health

goals may at times trump the objective of environmental integrity,

leading to potential conflicts within the objectives of EU environ-

mental law, as interpreted by the Court. He therefore suggests that

further guidance on how to deal with such conflicts is needed.

Continuing the focus on the regulation of new technologies in

the EU, the next article by Viktor Weber investigates how liability of

carbon capture and storage (CCS) operators is regulated by EU law.

He argues that a lack of clarity concerning operators’liability (e.g., in

case of environmental damage or leakage) has contributed to the

slow uptake of CCS in the EU. With the prospects of the EU adopt-

ing new rules on liability being dim, Weber suggests that EU Mem-

ber States should move ahead and craft laws and policies that

carefully balance the need to promote investments in CCS and hold

the operator responsible for any problems should they arise. He

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1

See, e.g., KV Kortenkamp and CF Moore, ‘Ecocentrism and Anthropocentrism: Moral Rea-

soning about Ecological Commons Dilemmas’(2001) 21 Journal of Environmental Psychol-

ogy 261; A Gillespie, International Environmental Law, Policy, and Ethics, 2nd edn (Oxford

University Press 2014) 3; B Donnelly and P Bishop, ‘Natural Law and Ecocentrism’(2007)

19 Journal of Environmental Law 89.

DOI: 10.1111/reel.12253

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