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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 understanding of environmental problem shifting could probably be extended to include more passive forms of problem shifting such as the transformation of climate change to ocean acidification, as inadvertently Интерэкоправо в антропоцене: к вопросу о целенаправленной системе... 205 facilitated by the UNFCCC. Over the past 200 years, the oceans have absorbed about 40 % of the excess atmospheric CO2 that humans have emitted [119]. Although this natural buffering effect has helped to mitigate climate change, the extra carbon taken up by the oceans is making them more acidic [120]. Although the UNFCCC and the Kyoto Protocol [121] regulate CO2 emissions, scholars have suggested that the climate regime does not provide an adequate legal framework for the problem of ocean acidification [122]. Rather, the uptake of atmospheric CO2 by the oceans is currently presented in the climate regime as part of the solution to climate change [123]. In other words, by design, the climate regime has been knowingly externalizing the cost of mitigating climate change, which has manifested partly as the acidifying ocean. If parties to the UNFCCC were to acknowledge ocean acidification as a problem in and of itself, they would have to account for the excess carbon that the oceans naturally absorb. By failing to do so, however, the UNFCCC has been passively contributing to problem shifting.

Furthermore, the UNFCCC and the Kyoto Protocol obligate all parties to promote sustainable management and promote and cooperate in the conservation, enhancement and protection of the oceans as sinks and reservoirs [124]. This means that not only must parties act to enhance the ‘passive’ absorption of anthropogenic CO2 into the oceans, but also these provisions can even be interpreted as giving tacit consent to some form of ‘active’ ocean sequestration of CO2 through, for example, ocean fertilization [125].

Most of the above-illustrated examples of problem shifting involve a form of geoengineering. Described as the ultimate ‘poster-child’ of the Anthropocene, the limits of international environmental law have become apparent in the face of geoengineering. The international environmental law system is not sufficiently more than the sum of its norms and institutions. The existence of multiple parallel, overlapping MEAs might in effect not lead to a higher protection standard than one individual and selective agreement. Contrary to the common perception, individual environmental protection efforts do not necessarily add up. Considering the significance of environmental problem shifting, we need to start paying greater attention to the internal incoherence of international environmental law.

4.3. Purposive Legal Reasoning in the International Environmental Law Context International environmental law can be conceptualized as a system of MEAs with hundreds of objectives that point in different directions. Improving the performance of one MEA in isolation may come to constrain the actions of another MEA to the point of serious injury. In systems terminology this is called the problem of sub-optimization, where optimizing each subsystem independently may ultimately worsen the overall system.

The principle of sub-optimization explains why ‘it is more difficult than we realize to construct a coherent macro-legal system by applying a micro-legal focus’. This is also why, all too often, ‘[t]he «letter of the law»

is met, [but] the spirit of the law is not’. We have been occupied by technical matters while losing sight of the ultimate purpose of international environmental law.

According to Meadows, what we can do to make sure the spirit of international environmental law is met is ‘to design the law with the whole system, including its self-organizing evasive possibilities, in mind’.

This would begin with a realization that international environmental law is a complex, self-organizing system of norms and institutions. Even though self-organization and collaboration in polycentric settings hold a great potential, it requires institutional intervention to steer the direction of self-organization process. One may call this process a ‘systematization of anarchy’.

The goal of a system is a powerful leverage point in that regard [135]. Here is an example from economics.

Because of non-linear dynamics between micromotives and macrobehaviour [136], macroeconomics cannot be derived from microeconomics. In order to direct economic systems towards desired macroscopic outcomes which might be keeping the market competitive, the self-organizing aspects of the market must be complemented by the top-down feedbacks. These feedbacks would come from goal-oriented central agencies, which modify local rules of interaction to prevent each individual corporation from eliminating its competitors [137].

Similarly, in ecosystems, the goal of keeping populations in balance and evolving trumps the goal of each population to reproduce without limit [138].

The significance of a system goal does not imply the need for a monolithic, top-down approach to global environmental governance through a World Environment Organization. However, it does mean that international environmental law as a system of MEAs is in need of, firstly, a grundnorm, to which its myriad individual treaties and organizations would align and, secondly, functioning checks and balances to oversee that alignment.

206 Р.  Э. Ким, К. Боссельман   This process requires purposive legal reasoning in which ‘the decision about how to apply a rule depends on a judgment of how most effectively to achieve the purposes ascribed to the rule’ [139]. In other words, the threats addressed and the solutions outlined by MEAs need to be evaluated in relation to an overall environmental goal [140] which, in our opinion, should be protecting planetary boundaries or the biophysical preconditions that are essential for human existence and development. International environmental law should not constitute a mere mechanical application of random rules or decisions that point in different directions, but the operation of a whole that is directed towards the shared purpose [141].

For a purposive system of international environmental law, legal interpretation needs to build systemic relationships between rules by envisaging them as part of the shared purpose. The principle of systemic integration of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) [142] has the capacity to fulfil this critical role. Pursuant to this principle, international environmental instruments are interpreted and applied by reference to their normative environment, or ‘any relevant rules of international law’, especially grundnorms [143]. In this manner, the object and purpose of legally autonomous MEAs could be synchronized towards achieving a collective goal. For example, in implementing the UNFCCC, its provisions would need to be interpreted and applied in a way that would consider and address any unintended consequences for biodiversity, hence creating a mutually supportive relationship between the UNFCCC and biodiversity-related MEAs in light of a grundnorm [144]. This could possibly translate into less efficient climate change mitigation measures in the short term, but its aim is to ensure long-term global ecological integrity and sustainability. In other words, the principle of systemic integration is a critical component in establishing an intrinsic priority of maintaining planetary integrity over individual treaty objectives. As articulated by a judge of the International Court of Justice, the principle is the closest to being a master key to the house of international (environmental) law [145].

The coordination of international environmental regimes should then resemble receiver-based optimization found at play in many complex adaptive systems [146]. Here, all the agents in a system that is trying to coordinate behaviour let other agents know what is happening to them. The receivers of this information use it to decide what they are going to do. They base their decisions on some overall specification of ‘team’ goal, and thus achieve coordination [147]. This is, in principle, how a flock of birds, for example, self-organizes and adapts to changes in the external environment in the absence of an authority. Accordingly, this approach would suggest that it is imperative that we define a grundnorm and evaluate the threats that MEAs address and the solutions they outline in relation to it [148]. International environmental law would then begin to assume the shape of a goal-oriented, purposive system, rather than a random collection of directives.

5. Ecological integrity as an emerging common denominator The exact form and nature of the overarching goal, or grundnorm, is beyond the scope of this article [149].

However, here we identify and endorse the notion of protecting and restoring the integrity of Earth’s lifesupport system as a potential grundnorm or goal of international environmental law. As a goal, it has the necessary attributes, namely content and intensity, on what needs to be done and to what degree [150].

5.1. Ecological Integrity in International Environmental Law From a legal perspective, the notion of ecological integrity may sound as vague and unclear as the notion of sustainability. However, it has been used as a key concept in a wide range of international environmental agreements on regional issues or particular types of ecosystem. The concept first appeared in the international arena in 1978 with the Great Lakes Water Quality Agreement signed bilaterally between Canada and the US [151], the purpose of which was ‘to restore and maintain the chemical, physical, and biological integrity of the waters of the Great Lakes Basin Ecosystem’ [152]. The first MEA to include the notion of integrity was the Convention on the Conservation of Antarctic Marine Living Resources adopted in 1980 [153]. The parties to the Convention recognized ‘the importance of safeguarding the environment and protecting the integrity of the ecosystem of the seas surrounding Antarctica’ [154]. Since then, more than a dozen MEAs have been adopted with some reference to ecological integrity in their preambular or operative part of the treaty [155].

More importantly, a number of key international environmental soft law instruments contain the notion of ecological integrity in their cores. These instruments include the World Charter for Nature [156], the Rio Declaration on Environment and Development [157], Agenda 21 [158], the Draft International Covenant Интерэкоправо в антропоцене: к вопросу о целенаправленной системе... 207 on Environment and Development, the Earth Charter, the Plan of Implementation of the World Summit on Sustainable Development, and The Future We Want.

The Rio Declaration, for example, states in its Preamble that the UN Conference on Environment and Development worked towards ‘international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system’. Furthermore, one of its core principles obligates states to ‘cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’. This was in the spirit of the World Charter for Nature of 1982, which firmly established the integrity of ecosystems or species as a non-negotiable bottom line when achieving ‘optimum sustainable productivity’ of natural resources.

The Earth Charter, which was adopted as the civil society alternative to the Rio Declaration in 2000, puts the concept of ecological integrity among its four core principles. Here, ‘all individuals, organizations, businesses, governments, and transnational institutions’ are urged to ‘[p]rotect and restore the integrity of Earth’s ecological systems, with special concern for biological diversity and the natural processes that sustain life’.

Furthermore, the International Union for Conservation of Nature (IUCN) Draft International Covenant on Environment and Development states the following as the first fundamental principle: ‘Nature as a whole and all life forms warrant respect and are to be safeguarded. The integrity of the Earth’s ecological systems shall be maintained and where necessary restored.’ Although still a draft, the inclusion here is significant because the Covenant is a codification of existing environmental law, and was intended to be a blueprint for an international framework agreement on the environment.

We acknowledge that such repeated references in legal documents per se would not suffice to suggest that the notion of protecting Earth’s ecological integrity has become the ultimate goal of international environmental law. However, the concept of ecological integrity is emerging as one of the common denominators among the plethora of international environmental legal instruments. In this sense, the concept has the potential to be recognized and accepted as an environmental grundnorm and, as a result, help to transform environmental law and governance [168].

5.2. Relationship between Planetary Boundaries and Ecological Integrity The notion of ecological integrity implies a condition that is determined to be characteristic of its natural region [169]. At the planetary scale, the integrity of Earth’s ecosystem would refer to the biophysical conditions of the Holocene, which preceded the anthropogenic global environmental change that began with the Industrial Revolution. The climatically stable Holocene epoch is a good scientific reference point because it represents a period during which human species were able to develop agriculture, civilization, and modern societies [170]. In this sense, the ultimate purpose of international environmental law should be about safeguarding the integrity of Earth’s life-support system, or all identified and potential planetary boundaries, as the non-negotiable biophysical preconditions for human existence and development [171].

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