Exploring the Analytical, Normative and Transformative Dimensions of Earth System Law

Abstract

It seems international environmental law cannot continue to exist in its present form for the purpose of the Anthropocene. Analytically, international environmental law and its lawyers appear not to fully understand and respond to the complex governance challenges arising from a complex Earth system. Thus, normatively, international environmental law seems to have failed to provide appropriate norms to prevent humans from encroaching on Earth system limits. In a transformative sense, international environmental law has not been sufficiently ambitious to achieve the type of radical transformations that may be necessary to ensure planetary integrity and socio-ecological justice. It calls for a new legal paradigm suitable for the purpose of the Anthropocene and could address international environmental law’s analytical, normative and transformative concerns. This new paradigm may be called the ‘Earth system law’. This chapter seeks to provide some preliminary thoughts about the analytical, normative, and transformative dimensions of earth system law could entail. Why they would be more appropriate for the purpose of governing a complex Earth system in the Anthropocene?

An Emergent Planetary Health Law

“…The UNFCCC is a flagship treaty of the legal regime commonly known as international environmental law, which traces its origins to the UN Conference on the Human Environment in 1972, 63 and consists of a mixture of 'hard' legally binding rules that are implemented and enforced in treaties and buttressed by customary international law, droit dérivé adopted by the Conference of the Parties (COP) created by multilateral environmental agreements 64 and 'soft' non-binding common standards. 65 The UNFCCC's purpose is to serve as 'the legal and regulatory framework devised by the community of sovereign states' 66 to address 'the negative impacts that humans have on the environment with the objective of protecting and conserving the environment'.…”