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«EURASIAN INTEGRATION: LEGAL AND EDUCATIONAL ASPECTS Novosibirsk, 3–5 of December 2014 SECOND SCHOOL OF INTERECOLAW Novosibirsk, 4–5 of December ...»

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Our point of analytical departure is that the state of the global environment is deteriorating despite the accumulating body of international environmental law. By drawing on the recent Earth system science concept of interlinked planetary boundaries, this article makes a case for a goal-oriented, purposive system of multilateral environmental agreements. The notion of ‘goal’ is used here to mean a single, legally binding, superior norm — a grundnorm — that gives all international regimes and organizations a shared purpose to which their specific objectives must contribute. A bird’s eye view of the international environmental law system reveals how the absence of a unifying goal has created a condition that is conducive to environmental problem shifting rather than problem solving. We argue that a clearly agreed goal would provide the legal system with a point of reference for legal reasoning and interpretation, thereby enhancing institutional coherence across Earth’s subsystems. To this end, this article concludes by observing that the protection of the integrity of Earth’s life-support system has emerged as a common denominator among international environmental law instruments. Accordingly, we suggest that this notion is a strong candidate for the overarching goal of international environmental law.

1. Introduction Our point of analytical departure is that global environmental conditions have continued to deteriorate despite the accumulating body of international environmental law. According to one source, over 700 multilateral environmental agreements (MEAs) have been adopted since 1857. However, during this period, the rate of anthropogenic global environmental change has been accelerating [2]. Compelling scientific evidence suggests that human activities have pushed the Earth system beyond three of its nine interlinked biophysical thresholds or ‘planetary boundaries’, which is likely to translate into disastrous consequences for humanity in the years to come [3]. Earth has entered the Anthropocene, a new geological epoch in which humans have become a major driver of global environmental change [4].

The current system of international environmental law and governance, with its maze of MEAs, is considered to be unsuitable for navigating the Anthropocene [5]. Many factors can be identified that contribute to the apparent ineffectiveness of international environmental law [6]. Of particular concern to this study is the tendency of the international community to treat interconnected environmental matters on a sectoral basis rather than in a comprehensive, joined-up manner. The result is that international legal responses are fragmented and issue-based according to the objective of individual treaty systems, resulting in differing or even contradictory 200 Р.  Э. Ким, К. Боссельман   positions adopted across or within various treaty bodies [7]. The inconsistencies have increased the risk of problem shifting, that is ‘improving the performance of one system by degrading another’ [8], within the realm of international environmental law: for example, replacing gasoline with corn ethanol for the purpose of climate change mitigation may shift the net environmental impacts towards increased eutrophication and greater water scarcity [9].

A number of proposals have been put forward to better coordinate treaty regimes, ranging from clustering MEAs with the possibility of co-locating their secretariats [10] to upgrading the ineffectual United Nations Environment Programme (UNEP) into a World Environment Organization [11]. The purpose of this article is not to assess the efficacy of these existing proposals. Rather, in this article, we shift our focus to a less noticed or discussed issue: the absence of a clearly agreed, unifying goal to which all international regulatory regimes and organizations are legally bound to contribute. We explore the practical implications of (not) having such a goal for institutional cooperation among treaty bodies and with regard to international environmental law as a whole. To the best of our knowledge, no previous research has seriously contemplated the implication of this missing component in the context of international environmental law.

This study adopts ‘environmental law methodology’ as its analytical framework [12]. Environmental law methodology is grounded in the question of how to achieve and maintain ecological sustainability through the work of law as a control system [13]. The analysis goes beyond a reactive, legal-dogmatic perspective, which is a common method that describes and analyzes the existing legal instruments for environmental protection [14].

Instead, the aim here is to ‘understand how law works from a systemic point of view’, and how it influences the environment [15]. The effectiveness of law is assessed through external eyes from the perspective of its object, such as a migratory bird or biodiversity [16]. The analysis is grounded in the recognition that any control system needs to be as advanced as the system being controlled [17]. The environmental law methodology approach is proactive as it deals with techniques for environmental legal control and consequently with solutions to environmental control problems [18].

Here, we look through the lens of the entire biosphere to explore international environmental law as a control system governing human relationships and interactions with Earth system processes. We pay particular attention to the internal dynamics of the international environmental law system. Up to now, microscopic and telescopic analytical approaches have predominated, with a focus on individual treaty regimes on the one hand [19], and international environmental law as a unitary body of norms interacting with other branches of international law, such as trade and human rights, on the other [20]. The neglected macroscopic approach we offer here seeks to improve the understanding of how the network of norms and institutions actually functions and influences the global environment as a whole [21].

We begin by firmly establishing what the ultimate purpose of international environmental law should be: the protection of the biophysical preconditions that are essential for long-term sustainable development.

We then discuss the institutional context in which international environmental law lacks an overarching goal or grundnorm, and how its absence has contributed to the dysfunction of international environmental law as a whole. More specifically, we illustrate how the current self-organized mode of institutional cooperation and coordination has been ineffective, and how international environmental law requires a legally binding overarching goal around which all international regulatory regimes must be situated and to which the regimes must contribute. The exact form and nature in which such a goal can be recognized is a subject for future research. However, we observe that the protection of Earth’s ecological integrity has emerged as a common denominator among international environmental law instruments. The logical next step would be to recognize the emergent common denominator as a grundnorm of international environmental law that would restrain state sovereignty to the necessary extent.

2. Implications of planetary boundaries for international environmental law A group of leading Earth system and environmental scientists have recently identified nine planetary biophysical subsystems or processes that determine the self-regulating capacity of the Earth system [22]. The identified Earth system processes are climate change, biodiversity loss, interference with the nitrogen and phosphorus cycles, stratospheric ozone depletion, ocean acidification, global freshwater use, changes in land use, chemical pollution, and atmospheric aerosol loading [23]. The scientists argued that each subsystem or process has a certain ‘boundary’ (a threshold or tipping point) which, if crossed, may trigger non-linear changes Интерэкоправо в антропоцене: к вопросу о целенаправленной системе... 201 in the functioning of the Earth system, thereby challenging social-ecological resilience at regional to global scales. Collectively, therefore, these ‘planetary boundaries’ define the safe operating space for humanity with respect to the Earth system.

The planetary boundaries framework builds on a sound scientific knowledge base that has been developed over the past several decades: limits to growth [24], safe minimum standards [25], the precautionary approach [26], and tolerable windows [27]. One of the focal points of the planetary boundaries approach is on quantifying these boundaries by a critical value for one or more measurable control variables, in relative terms to pre-industrial conditions [28]. Although the exact positions of the boundaries cannot escape normative perceptions of risk [29], for the purpose of this study it suffices to acknowledge that their existence is scientifically supported and it is possible to quantify them.

Implications of the planetary boundaries framework for international environmental law can be discussed at two levels. At a fundamental level, the concept clearly suggests that the individual biophysical thresholds must never be compromised, but must be respected as a non-negotiable bottom line for all human activities.

It defines the environmental target corridor, or the minimum level of environmental protection required, within the larger context of long-term sustainable development [30]. More specifically, the concept suggests a hierarchical order for the elements of sustainable development: the biophysical environment comes first, and human society and the economy second [31]. It is therefore imperative to reflect this intrinsic hierarchy in the design and interpretation of laws governing state behaviour [32].

In this context, the planetary boundaries framework scientifically suggests the existence of a foundational environmental principle or grundnorm, which, for the purpose of our research, can be defined as a basic norm to bind any governmental power [33]. This understanding differs from Kelsen’s definition [34], and is closer to Kant’s argument that any positive law must be grounded in a ‘natural’ norm of general acceptance and reasonableness (Vernunft) to prevent pure arbitrariness (blosse Willkür) [35]. The existence of an environmental grundnorm, therefore, rests on the assumption that respecting planetary boundaries is a dictate of reason (Gebot der Vernunft) and general acceptance (allgemeine Gültigkeit) [36]. Conceptually, a grund-norm exists independently of a legal system, but underpins legal reasoning in the form of an inference rule [37]. In this way, the legal decision-making process, for example in courts, will always be informed by some fundamental concerns along the lines of the Kelsian idea of a grundnorm. By contrast, the Kantian understanding suggests the prevalence of common interest or general acceptance. Only what can be assumed as reflecting the common interest could be considered as a grundnorm. Examples in this sense include a constitution, but also the rule of law or the idea of justice, the concept of human rights and similar values of fundamental importance [38].

At another level, the concept of planetary boundaries directs our attention to the need to embrace the complex relationships among the planet’s biophysical subsystems in our existing governing institutions. The individual planetary boundaries are tightly coupled through non-linear interactions where transgressing one boundary may have implications for other boundaries [39]. Global environmental governance challenges that stem from the non-linear interactions are inherently complex [40]. A changing climate puts biodiversity at both species and ecosystem levels under serious risk [41]. The degradation or loss of peatlands through land-use changes has a negative impact on local biodiversity and global climate change [42]. Converting the Amazon rainforest to a grassland or savannah through deforestation could influence atmospheric circulation globally and affect water resources in Tibet through changes in rainfall [43].

These are but a few examples of cross-system, cross-scale interactions among planetary boundaries. What these examples reveal is a governance challenge that goes beyond the conventional debate in environmental policy integration — that is, the relationships between environmental and developmental policies (for example, international trade) [44]. They call for much stronger attention to the internal coherence of international environmental law with respect to strategies to stay within individual planetary boundaries [45]. For example, the climate, ozone, and biodiversity regimes would need to be implemented in a mutually supportive manner, without compromising one over the other.

As will be discussed later in more detail, a single unifying goal may provide the environmental treaty system with a point of reference for legal reasoning and interpretation, thereby enhancing institutional coherence across Earth’s subsystems. A grundnorm would specify this hypothetical goal, and help pull the system of law together. Such a goal-oriented approach to coordination would prove to be particularly relevant in a decentralized system, such as international environmental law, that lacks central control.

202 Р.  Э. Ким, К. Боссельман  

3. Does international environmental law have a goal?

Since the first multilateral environmental agreement was adopted in the mid-19th century, international environmental law has expanded horizontally in the absence of an overarching goal or grundnorm [46]. The incentives for individual states to orient themselves around or promote a single environmental goal have been weak. Instead, the nature of medium-specific environmental problems has encouraged institutional diversification at every level of governance [47]. And these institutions have usually come about in an ad hoc manner as a result of spontaneous reactions to politically salient environmental issues.

In the early years of the development of international environmental law, states were confronted primarily with geographically confined, transboundary environmental problems [48]. These problems had more or less identifiable causes and effects, and their remedies had relatively few unintended consequences.

Notable examples include protection of the fur seals of the Bering Sea from commercial harvest in 1911 [49].

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