In May 2018, the process which may ultimately lead to the negotiation of a legally binding Global Pact for the environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: (a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance, and (b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact's primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broadsweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.

In this article we argue that the Anthropocene’s deepening socio-ecological crisis amplifies demands on, and exposes the deficiencies of, our ailing regulatory institutions, including that of international environmental law (iel). Many of the perceived failures of iel have been attributed to the anthropocentric, as opposed to the ecocentric, ontology of this body of law. As a result of its anthropocentric orientation and the resultant deficiencies, iel is unable to halt the type of human behaviour that is causing the Anthropocene, while it exacerbates environmental destruction, gender and class inequalities, growing inter- and intra-species hierarchies, human rights abuses, and socio-economic and ecological injustices. These are the same types of concerns that the recently proclaimed Sustainable Development Goals (sdgs) set out to address. The sdgs are, however, themselves anthropocentric; an unfortunate situation which reinforces the anthropocentrism of iel and vice versa. Considering the anthropocentric genesis of iel and the broader sdgs framework, this article sets out to argue that the anthropocentrism inherent in the ontological orientation of iel and the sdgs risks exacerbating Anthropocene-like events, and a more ecocentric orientation for both is urgently required to enable a more ecocentric rule of law to better mediate the human-environment interface in the Anthropocene. Our point of departure is that respect for ecological limits is the only way in which humankind, acting as principal global agents of care, will be able to ensure a sustainable future for human and non-human constituents of the Earth community. Correspondingly, the rule of law must also come to reflect such imperatives.

The protection of the global environment has become one of the central objectives of the international community in recent decades. Issues such as climate change, the depletion of the ozone layer, and the loss of the biological diversity has resulted in a growing international awareness of the problems facing the planet. Moreover, there is also recognition that States will need to act more collaboratively at the international level if effective solutions are to be found to these problems. However, concurrently there is also recognition that many States have pressing socio-economic concerns of their own, and that they have neither the resources nor the capabilities with which to devote to such global issues—so called “developing” States. This article examines the response of international environmental law to these two, potentially opposing, trends, viz., the need for universalism, on the one hand, and sensitivity to the needs of developing States, on the other. In particular, the article will examine the emerging legal principle of “common but differentiated responsibilities”, as well as discussing the various means of operationalising it. Nevertheless, as will be discussed below, there is still much debate as to the conceptual basis of this principle—leading one to question its real aim. Is it to contribute to a fairer world system in which developed States recognise their historical responsibility for past environmental damage, or is it simply an expedient means of ensuring the participation of developing States in what are primarily Northern concerns?

This paper considers under what circumstances, and for what reasons, an international tribunal may want to range beyond the primary text of a treaty to determine its ‘correct’ meaning; such extraneous legal material potentially including rules of customary international law, other treaties between the parties, general principles of law, and documents of a ‘soft law’ nature. The paper suggests a variety of ‘mechanisms’ by which a tribunal may undertake a broader interpretative approach, though all ultimately raise the same inevitable tension between accusations of judicial activism and counter-arguments of inflexibility and insularity. Nevertheless, many tribunals and individual judges continue to utilize such techniques, particularly noticeable in some recent environmental disputes. The paper will conclude with a note of caution; that though such interpretations are becoming an increasingly significant part of modern judicial decision-making—something that is generally to be welcomed—tribunals must concurrently take care to ensure that they remain within the accepted parameters of the adjudicative function.

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In February 2011, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea handed down its Advisory Opinion in Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area. Although primarily focused on governance of the deep seabed beyond national jurisdiction (‘the Area’), the Opinion has wider relevance for both international environmental law and general international law. More specifically, although sustainable development is not directly referenced in the Opinion, this article argues that it goes a long way towards strengthening many of the emerging normative rules associated with it. Using the International Law Association’s 2002 New Delhi Declaration of Principles of International Law relating to Sustainable Development as a framework, this article specifically analyses the Advisory Opinion’s contribution to the sustainable use of natural resources, the precautionary approach, common but differentiated responsibilities, and the principle of good governance.