Global Environmental Constitutionalism in the Anthropocene by Louis J. Kotzé Published by Hart, 2016, 304 pp., £60, hardback.

• DOI: http://doi.org/10.1111/reel.12243
• Author: Rosemary Mwanza
• Date: 01 April 2018
• Published date: 01 April 2018

BOOK REVIEWS

GLOBAL ENVIRONMENTAL CONSTITUTIONALISM

IN THE ANTHROPOCENE by Louis J. Kotz

e

Published by Hart, 2016, 304 pp., £60, hardback.

Climate change and other global environmental problems have

exerted an urgent demand for effective regulatory solutions in inter-

national environmental governance. Louis Kotz

e’sGlobal Environmen-

tal Constitutionalism in the Anthropocene is a timely response to this

demand. The author’s central argument is that global environmental

constitutionalism can provide an effective regulatory solution to

the socio-ecological problems of the Anthropocene. Kotz

e employs

the ‘Anthropocene’imagery to communicate the seriousness of the

socio-ecological consequences of human domination over nature,

and to underline the urgency with which the international regulatory

order must respond to the socio-ecological consequences that char-

acterize the Anthropocene.

Kotz

e’s principal argument immediately raises several pertinent

questions: First, what factors inform a turn to law as opposed to, or

in addition to, other alternative solutions such as technology to miti-

gate the problems of the Anthropocene? Second, if, as the author

argues, law is an effective tool in regulating the kind of behaviour

that has so far produced the socio-ecological problems of the

Anthropocene, does the preference of constitutional modes of regu-

lation over non-constitutional ones stand on solid ground? Third,

would a constitutional mode of governance analogous to domestic

constitutionalism be suitable for the international regulatory order to

deal with the Anthropocene? Fourth, if as Kotz

e argues, environmen-

tal constitutionalism analogous to domestic constitutionalism is a sui-

table instrument of environmental regulation at the international

level, what are or should be its constituent elements?

Kotz

e’s book provides a well-thought-out response to these

questions. With regard to the first question, he engages in the dis-

course on whether the solution to the present socio-ecological prob-

lems lies in changing the kinds of behaviour that have contributed

to the problem, or in the use of technological innovations. Kotz

e

hearkens to the widely accepted view that the present socio-

ecological crisis is a result of human behaviours whose conse-

quences threaten the Earth’s system by dismantling the ‘biospheric

harmony’that characterized the Holocene geological epoch. He

argues that while law cannot change the Earth’s systems, its poten-

tial as a social institution lies in its ability to shape human behaviour

that affects these systems and threatens planetary boundaries.

According to the author, the potential of law lies in its coercive

power that can be deployed to shape behaviours that have con-

tributed to the present crisis.

As the author correctly acknowledges, technological solutions

such as low emission and negative emission innovations are an

essential part of the solution to the problems of the Anthropocene.

However, scientists warn that technological solutions may not hold

the key to solving the problem due to certain limitations, including

the fact that some can take a long time to mature to viable forms,

their unsuitability for large-scale application and prohibitive costs,

which prevent a majority of States from adopting them.

1

The author

also sees the reliance on technology as an affirmation of the ontol-

ogy of human mastery over nature, which, he argues, is precisely the

attitude that has sanctioned the kind of human behaviour that is

responsible for the current ecological crisis. Thus, Kotz

e is right to

argue against solutions that are narrowly reliant on technological

innovations and in favour of behavioural change through the instru-

mentality of law.

In Chapter 4, the author explores why constitutional forms of gov-

ernance are preferable to other legal responses to deal with the chal-

lenges of the Anthropocene. Here, Kotz

e affirms the views expressed

by other scholars in earlier works on the benefits of environmental

constitutionalism.

2

However, Kotz

e’s work presents fresh insights on

the advantages of environmental constitutionalism. For instance, in

addition to the role they have been known to play in shaping the con-

tent of ordinary environmental law, he explains that constitutional

environmental norms have the ability to shape environmental law and

institutions beyond the borders of the State within which they are

adopted. In his view, such an outcome can be facilitated by transna-

tional comparative constitutionalism, which allows for the ‘sharing and

crosspollination of constitutional ideas between countries’.

3

This is

already happening through the practice by which judges in domestic

courts borrow from practices and experiences from other foreign

domestic courtsand international judicial bodiesin the course of envir-

onmental dispute resolution. On this view, Kotz

e demonstrates that

environmental constitutionalism can contribute to the development of

environmental law when adopted to fulfil the demand of environmen-

tal governance norms in regulatory spaces where they are needed.

One such regulatory space in which a demand for legal norms has

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1

European Academies’Science Advisory Council, ‘Negative Emission Technologies: What

Role in Meeting Paris Agreement Targets?’(February 2018).

2

T Hayward, Constitutional Environmental Rights (Oxford University Press 2004); JR May

and E Daly, Global Environmental Constitutionalism (Cambridge University Press 2015).

3

LJ Kotz

e, Global Environmental Constitutionalism in the Anthropocene (Hart 2016) 109.

DOI: 10.1111/reel.12243

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