International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements

Rakhyun E. Kim; Klaus Bosselmann

doi:10.1017/S2047102513000149

International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements

Published online by Cambridge University Press: 24 June 2013

Rakhyun E. Kim and

Klaus Bosselmann

Show author details

Rakhyun E. Kim: Affiliation:
Fenner School of Environment and Society, The Australian National University, Canberra (Australia). Email: rakhyunkim@gmail.com.
Klaus Bosselmann: Affiliation:
Faculty of Law, University of Auckland (New Zealand). Email: k.bosselmann@auckland.ac.nz.

Article contents

Abstract
introduction
implications of planetary boundaries for international environmental law
does international environmental law have a goal?
dysfunction of international environmental law in the absence of a goal
ecological integrity as an emerging common denominator
conclusion
References

Rights & Permissions

Abstract

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.

Keywords

Grundnorm Anthropocene Planetary Boundaries Earth’s Ecological Integrity Problem Shifting

Information

Type: Articles
Information: Transnational Environmental Law , Volume 2 , Issue 2 , October 2013 , pp. 285 - 309

DOI: https://doi.org/10.1017/S2047102513000149 [Opens in a new window]
Copyright: Copyright © Cambridge University Press 2013

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.^{Footnote 1} However, during this period, the rate of anthropogenic global environmental change has been accelerating.^{Footnote 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.^{Footnote 3} Earth has entered the Anthropocene, a new geological epoch in which humans have become a major driver of global environmental change.^{Footnote 4}

The current system of international environmental law and governance, with its maze of MEAs, is considered to be unsuitable for navigating the Anthropocene.^{Footnote 5} Many factors can be identified that contribute to the apparent ineffectiveness of international environmental law.^{Footnote 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 positions adopted across or within various treaty bodies.^{Footnote 7} The inconsistencies have increased the risk of problem shifting, that is ‘improving the performance of one system by degrading another’,^{Footnote 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.^{Footnote 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^{Footnote 10} to upgrading the ineffectual United Nations Environment Programme (UNEP) into a World Environment Organization.^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 14} Instead, the aim here is to ‘understand how law works from a systemic point of view’, and how it influences the environment.^{Footnote 15} The effectiveness of law is assessed through external eyes from the perspective of its object, such as a migratory bird or biodiversity.^{Footnote 16} The analysis is grounded in the recognition that any control system needs to be as advanced as the system being controlled.^{Footnote 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.^{Footnote 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,^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 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 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,^{Footnote 24} safe minimum standards,^{Footnote 25} the precautionary approach,^{Footnote 26} and tolerable windows.^{Footnote 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.^{Footnote 28} Although the exact positions of the boundaries cannot escape normative perceptions of risk,^{Footnote 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.^{Footnote 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.^{Footnote 31} It is therefore imperative to reflect this intrinsic hierarchy in the design and interpretation of laws governing state behaviour.^{Footnote 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.^{Footnote 33} This understanding differs from Kelsen’s definition,^{Footnote 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).^{Footnote 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).^{Footnote 36} Conceptually, a grundnorm exists independently of a legal system, but underpins legal reasoning in the form of an inference rule.^{Footnote 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.^{Footnote 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.^{Footnote 39} Global environmental governance challenges that stem from the non-linear interactions are inherently complex.^{Footnote 40} A changing climate puts biodiversity at both species and ecosystem levels under serious risk.^{Footnote 41} The degradation or loss of peatlands through land-use changes has a negative impact on local biodiversity and global climate change.^{Footnote 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.^{Footnote 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).^{Footnote 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.^{Footnote 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.

3. does international environmental law have a goal?

Since the first multilateral environmental agreement was adopted in the mid-19^th century, international environmental law has expanded horizontally in the absence of an overarching goal or grundnorm.^{Footnote 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.^{Footnote 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.^{Footnote 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,^{Footnote 49} and the transboundary pollution by a Canadian smelter in the United States (US) in 1935.^{Footnote 50} Such regional or bilateral issues gave rise to correspondingly regional norms or bilateral agreements, which, in fact, continue to comprise the majority of international environmental law today.^{Footnote 51}

More recently, environmental issues have become increasingly globalized.^{Footnote 52} Marine pollution, ozone depletion, acid rain, and climate disruption were among the first global environmental issues to receive the attention of the international community. MEAs with a global scope of applicability were adopted, some of which now enjoy near universal membership. Although the geographical divisions have become blurred to some extent, the sectoral divisions persist along the lines of sub-specialisms of international environmental law. We have separate laws by type of pollution or source of generation. For example, there are separate treaties for fisheries, marine pollution, and climate change regulation, which were developed independently of each other without reference to the ways in which they would interact or create regulatory gaps and overlap.

Therefore, each MEA is limited to the particular sectors or activities within its mandate, to the environmental media it is intended to address, and to its geographic area of application.^{Footnote 53} The result is a series of piecemeal international legal responses to the larger patterns of global environmental change through the proliferation of ‘autonomous institutional arrangements’ of modern MEAs.^{Footnote 54} International environmental law has evolved into a fragmented, as opposed to an integrated and coordinated, system.^{Footnote 55} There is no single authority, but multiple, formally independent centres of decision-making with equal legal authority to act on different aspects of the global environmental crisis.^{Footnote 56} Although international environmental law has developed a certain level of coherence through the inclusion of general principles in different legal instruments,^{Footnote 57} its core value system remains weak and vague.^{Footnote 58}

As such, the historical conditions have not been conducive to the emergence of a single goal. The concept of a goal here is intended to mean a grundnorm that gives all international regimes and organizations a shared purpose to which their specific treaty objectives must contribute. The goal or grundnorm would be in the form of an amalgamation of minimum environmental standards that are essential for protecting planetary boundaries. It would establish a normative hierarchy and function as a supreme norm that prioritizes planetary environmental concerns, to which all other subsidiary rules and principles must adhere.

In thinking about the integration of a grundnorm in this way, it is useful to juxtapose international environmental law with other branches of international law with clearly identifiable goals. The ultimate goal of international human rights law, for example, is to ensure that every human being can fully experience human security, particularly in relation to the government.^{Footnote 59} The Universal Declaration of Human Rights^{Footnote 60} has been regarded as the constitution in that field of law, the norms of which have now assumed acceptance at the level of customary law that binds all states. The goal of international trade law, ‘free trade’ or the liberalization of the trade systems worldwide, although still the subject of significant controversy, is nevertheless a dominant mode of practice.^{Footnote 61} Many of the different issue areas of world trade law are currently being regulated under the overarching principles enshrined in the Agreement Establishing the World Trade Organization.^{Footnote 62} These are some examples of ‘superior’ norms that override other norms and bind almost all states.^{Footnote 63} Yet international environmental law lacks such a normative hierarchy comparable with that of international trade and human rights law.

Some might opine that the 1972 Stockholm Declaration,^{Footnote 64} the 1982 World Charter for Nature,^{Footnote 65} or the 1992 Rio Declaration on Environment and Development,^{Footnote 66} set out fundamental goals of international environmental law. However, such a claim could arguably be dismissed on the ground that none of them has constitutional features.^{Footnote 67} The Rio Declaration, which is probably the most authoritative document in international environmental law, provides at best a ‘framework of global reference’.^{Footnote 68} It bears little resemblance to the Universal Declaration of Human Rights or to the international covenants on human rights.^{Footnote 69} In particular, the Rio Declaration, being soft law in nature,^{Footnote 70} does not create a normative hierarchy^{Footnote 71} and lacks the capacity to exercise real constraint on the behaviour of states. As Bodansky put it, ‘international environmental law as a whole lacks the hallmarks of a constitutional order’.^{Footnote 72} The system remains an incoherent set of commitments by states without a clearly established value hierarchy.^{Footnote 73}

4. dysfunction of international environmental law in the absence of a goal

An important, but often overlooked question^{Footnote 74} is how the absence of such a single unifying goal or grundnorm has affected the overall functioning of international environmental law. In the discussion that follows, we provide an explanation as to why we should agree on and specify a grundnorm of international environmental law and how it would make a difference.

4.1. The Current Mode of Institutional Cooperation and Coordination

UNEP has not been effective in accomplishing its mission of coordinating environmental programmes within the United Nations (UN) system.^{Footnote 75} The international community has, more or less, relied on the self-organized mode of coordination and cooperation among its international regulatory regimes.^{Footnote 76} Many modern MEAs, such as the UN Framework Convention on Climate Change (UNFCCC),^{Footnote 77} include provisions that oblige their secretariats ‘[t]o ensure the necessary coordination with the secretariats of other relevant international bodies’.^{Footnote 78} Similarly, the Conferences of the Parties (COPs) are required to ‘[s]eek and utilize, where appropriate, the services and cooperation of, and information provided by, competent international organizations and intergovernmental and non-governmental bodies’.^{Footnote 79} The treaty bodies sometimes enter into formal arrangements by signing bilateral Memoranda of Understanding with other such bodies or international organizations with an aim of enhancing cooperation and partnership.^{Footnote 80}

However, there are inherent limits to horizontal coordination. From a governance perspective, this method is one of integration by stealth,^{Footnote 81} in which coherence is advanced in a piecemeal approach through cooperation on technical matters, while avoiding the fundamental questions of raison d’être and organizing principles of international environmental law as a whole. Environmental conflicts are normative in nature and cannot be fully resolved solely by technical cooperation.^{Footnote 82} Fostering linkages between individual regimes might be a pragmatic solution to institutional ad hoc-ism,^{Footnote 83} but insufficient to address normative fragmentation in the context of global environmental governance.^{Footnote 84} The different environmental objectives of individual MEAs need to be balanced in a principled manner.^{Footnote 85}

Furthermore, from a legal perspective, the obligations of treaty bodies to cooperate and coordinate with others are conditioned by due respect for the legal autonomy of the treaties.^{Footnote 86} It has been noted that ‘any effort by actors in one regime to influence rule development in another will be limited by the extent to which memberships are congruent’.^{Footnote 87} For example, an important barrier to cooperation between the UNFCCC and the Convention on Biological Diversity (CBD)^{Footnote 88} has been that the US is party to the former, but not to the latter. In its submission to the UNFCCC, the US noted that these ‘Conventions have a distinct legal character, mandate and membership’, and insisted that biodiversity issues be dealt with outside the UNFCCC.^{Footnote 89} Similarly, at the 11^th meeting of the UN Open-Ended Informal Consultative Process on Oceans and the Law of the Sea in 2010, the Group of 77 and China emphasized the need to avoid choosing topics such as climate change, which fell within the mandate of specific international organizations or institutions.^{Footnote 90}

The legal autonomy of the treaties has been emphasized repeatedly because ‘importing’ concepts or rules between treaties with different memberships is perceived as an erosion of national sovereignty.^{Footnote 91} This is a legitimate concern which relates to the question of accountability of the regime to its state parties and, more generally, to the legitimacy of that regime.^{Footnote 92} However, the same concern has made MEAs inward-looking, either unable or reluctant to share or give away part of what they perceive as their ‘sovereignty’.^{Footnote 93} In a sense, national sovereignty of states has been translated into ‘institutional sovereignty’ of treaty regimes.^{Footnote 94} This is particularly problematic in the field of international environmental law. Although the same holds true for human rights treaties, most human rights norms have attained the status of jus cogens, and hence they are universally applicable irrespective of state consent.^{Footnote 95}

Where an MEA regime seeks to extend its scope to link with other agreements or organizations, due care needs to be exercised to ensure it is not seen as an attempt to intrude on the work of other bodies. Often the best an MEA can do is merely to make information available for use.^{Footnote 96} Information exchange between the UNFCCC and other institutions takes place largely on an ad hoc basis or relies on the submissions of individual parties or observers.^{Footnote 97} For example, the CBD established the Ad Hoc Technical Expert Group on Biodiversity and Climate Change to issue a series of reports, in the hope that the reports’ recommendations will be reflected in the future decisions of the COP to the UNFCCC. However, for the UNFCCC, the connection with issues other than its own has been seen as an unwanted distraction to achieving its narrowly defined and interpreted object and purpose.^{Footnote 98}

4.2. Environmental Problem Shifting among Planetary Boundaries

The neglect for cross-sectoral interactions on the part of MEAs comes with a high risk of transfer of harm or hazards from one area or medium to another, or the transformation of one type of environmental harm into another.^{Footnote 99} This so-called ‘problem shifting’ can even happen as an unintended consequence of action taken to protect a part of the environment.^{Footnote 100} A number of MEAs, including the UN Convention on the Law of the Sea (UNCLOS),^{Footnote 101} have a provision aimed at preventing such environmental problem shifting,^{Footnote 102} yet the issue has received little attention. A quantitative analysis of the extent of problem shifting across the entire institutional landscape is beyond the scope of this article. What follows are some selected illustrative examples of problem shifting across planetary boundaries.

A notable example of environmental problem shifting across multiple planetary boundaries is the expansion of biofuel crop plantations for the purpose of climate change mitigation.^{Footnote 103} Biomass combustion is assumed to be carbon-neutral under the greenhouse gas accounting rules of the UNFCCC.^{Footnote 104} However, in many cases, expanding the cropland for the feedstock involves clearing of land and incurs a ‘carbon debt’ that is unaccounted for.^{Footnote 105} The time required for biofuels to offset the carbon dioxide (CO₂) emissions released during land clearing has been estimated to be from 100 to 1,000 years, depending on the specific ecosystem involved in the land use change event.^{Footnote 106} For example, converting forests currently sequestering CO₂ to bioenergy crops, harvesting live trees for bioenergy and allowing forest to regrow, diverting crops or growing bioenergy crops on otherwise high-yielding agricultural land are likely to result in a net increase in CO₂ emissions in the near term.^{Footnote 107} In terms of problem shifting, replacing gasoline with bioethanol shifts the net environmental impacts primarily towards increased eutrophication and water scarcity through greater use of fertilizers and freshwater.^{Footnote 108} Furthermore, using agricultural land for cultivating biofuel feedstocks naturally leads to less production of food, endangering food security.^{Footnote 109}

Similar forms of problem shifting can be observed in afforestation and reforestation projects, which are driven partially by perverse incentives that promote the conversion of natural forests into monoculture tree plantations. At the heart of this problem is the definition of ‘forest’^{Footnote 110} adopted in 2001 under the Marrakesh Accords of the Kyoto Protocol.^{Footnote 111} It inadvertently allows continued unsustainable exploitation of forest resources principally because natural forests and plantations are not differentiated.^{Footnote 112} Refining the definition is required to prevent problem shifting from climate change to biodiversity loss. It will also be an important factor in ensuring the successful operation of the Reducing Emissions from Deforestation and Forest Degradation Programme (REDD+) and delivering co-benefits to other environmental efforts such as biodiversity conservation.^{Footnote 113}

Ocean fertilization provides another example of potential environmental problem shifting. Ocean fertilization is a type of geoengineering based on the purposeful introduction of nutrients such as iron into the upper ocean to encourage phytoplankton growth, which in turn is expected to remove CO₂ from the atmosphere. However, there are many uncertainties involved with quantifying the amount of CO₂ removed on a long-term basis and the likely impact on marine ecosystems and biodiversity.^{Footnote 114} The 2008 COP to the CBD requested its parties, and urged other governments, to ensure that ocean fertilization activities do not take place until there is an adequate scientific basis on which to justify such activities.^{Footnote 115} However, arrangements for international governance of further field-based research on ocean fertilization are currently being developed,^{Footnote 116} primarily under the London Convention^{Footnote 117} and its Protocol.^{Footnote 118}

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 facilitated by the UNFCCC. Over the past 200 years, the oceans have absorbed about 40% of the excess atmospheric CO₂ that humans have emitted.^{Footnote 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.^{Footnote 120} Although the UNFCCC and the Kyoto Protocol^{Footnote 121} regulate CO₂ emissions, scholars have suggested that the climate regime does not provide an adequate legal framework for the problem of ocean acidification.^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 125}

Most of the above-illustrated examples of problem shifting involve a form of geoengineering. Described as the ultimate ‘poster-child’ of the Anthropocene,^{Footnote 126} 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.^{Footnote 127} The existence of multiple parallel, overlapping MEAs might in effect not lead to a higher protection standard than one individual and selective agreement.^{Footnote 128} Contrary to the common perception, individual environmental protection efforts do not necessarily add up.^{Footnote 129} 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’.^{Footnote 130} This is also why, all too often, ‘[t]he “letter of the law” is met, [but] the spirit of the law is not’.^{Footnote 131} 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’.^{Footnote 132} 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.^{Footnote 133} One may call this process a ‘systematization of anarchy’.^{Footnote 134}

The goal of a system is a powerful leverage point in that regard.^{Footnote 135} Here is an example from economics. Because of non-linear dynamics between micromotives and macrobehaviour,^{Footnote 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.^{Footnote 137} Similarly, in ecosystems, the goal of keeping populations in balance and evolving trumps the goal of each population to reproduce without limit.^{Footnote 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.

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’.^{Footnote 139} In other words, the threats addressed and the solutions outlined by MEAs need to be evaluated in relation to an overall environmental goal^{Footnote 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.^{Footnote 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)^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 145}

The coordination of international environmental regimes should then resemble receiver-based optimization found at play in many complex adaptive systems.^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 149} However, here we identify and endorse the notion of protecting and restoring the integrity of Earth’s life-support 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.^{Footnote 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,^{Footnote 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’.^{Footnote 152} The first MEA to include the notion of integrity was the Convention on the Conservation of Antarctic Marine Living Resources adopted in 1980.^{Footnote 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’.^{Footnote 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.^{Footnote 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,^{Footnote 156} the Rio Declaration on Environment and Development,^{Footnote 157} Agenda 21,^{Footnote 158} the Draft International Covenant on Environment and Development,^{Footnote 159} the Earth Charter,^{Footnote 160} the Plan of Implementation of the World Summit on Sustainable Development,^{Footnote 161} and The Future We Want.^{Footnote 162}

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’.^{Footnote 163} 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’.^{Footnote 164} 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.^{Footnote 165}

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’.^{Footnote 166}

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.’^{Footnote 167} 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.^{Footnote 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.^{Footnote 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.^{Footnote 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.^{Footnote 171}

In our view, the reference to ecological integrity is the missing planetary dimension to the conventional anthropocentric definition of sustainable development. The concept of ecological integrity refers to much more than just healthy ecosystems, and includes other ‘planetary must-haves’, which are materials use, clean air, nutrient (nitrogen and phosphorus) cycles, hydrological cycles, ecosystem services, biodiversity, and climate stability.^{Footnote 172} Therefore, the concept contributes to an updated definition of sustainable development tailored to the Anthropocene, that is, ‘development that meets the needs of the present while safeguarding Earth’s life-support system, on which the welfare of current and future generations depends’.^{Footnote 173}

Importantly, the measurability of planetary boundaries could possibly enable the integrity of Earth’s life-support system to be used as a direct measure of the legality of state behaviour.^{Footnote 174} The application of the planetary boundaries framework as a measuring stick for environmental protection has proven to be legally feasible in the treaty context.^{Footnote 175} For example, the climate regime hints at an environmental limit with its reference to holding global warming to a certain level. The ozone regime performs a similar function in relation to the ozone layer protection. Similarly, the parties to the CBD have recently agreed on a set of non-binding but measurable biodiversity targets.^{Footnote 176} Other examples can be pointed to in treaties for other areas of concern. Vidas, for example, remarked about the potential feasibility of the concept of planetary boundaries as follows in relation to transnational marine environment protection:

[The] proposed concept of planetary boundaries may offer an important new perspective for the law of the sea in the face of an Anthropocene epoch, in which it is conceivable that maintaining the type and level of activities within and beyond our jurisdictional boundaries – including maritime ones – may become conditional upon respecting certain overall, planetary-scale boundaries.^{Footnote 177}

As an amalgamation of minimum environmental standards as informed by the planetary boundaries framework, the grundnorm of protecting the integrity of Earth’s life-support system has the capacity to function as ‘the ultimate arbiter of the myriad trade-offs that need to be managed’.^{Footnote 178} It should be the overarching goal of international environmental law, thereby underpinning and guiding the interpretation of existing, and the creation of new, international environmental laws.

6. conclusion

Humanity is facing the dual challenge of maintaining Earth subsystems within their planetary boundaries while limiting the risk of problem shifting across environmental media. The accumulating body of environmental treaties, which narrowly focus on particular problems or sectors, has not been able to ensure that its balkanized efforts lead to a net improvement. This research arose out of the need to identify a way to make international environmental law more effective as a whole in terms of planetary sustainability.

To this end, this article approached international environmental law from the perspective of the entire biosphere. We began by considering the implications of planetary boundaries for international environmental law. The presence of interacting thresholds or tipping points on the planetary scale points to the presence of an environmental grundnorm. However, we observed that the international environmental law system is missing a grundnorm, hence an overarching goal that binds the actions of international environmental actors and institutions.

By employing empirical examples of environmental problem shifting, we have illustrated how the absence of an overarching goal has translated into an absence of a unifying reference point for legal reasoning and interpretation. The missing component, in our view, provides an explanation as to why international environmental law has been unable to function coherently and purposively.

We made a preliminary observation that the notion of protecting and restoring the integrity of Earth’s life-support system is emerging as a common denominator among MEAs and other landmark international environmental documents. This concept makes a strong candidate for the environmental grundnorm. The ecological integrity at the planetary level implies maintaining and restoring the environmental conditions of the Holocene. Planetary boundaries of the Anthropocene are quantifiable; hence integrity can be used as a measure of legality of state behaviour.

The step forward for the international community would be to recognize the emerging notion of protecting and restoring global ecological integrity as a grundnorm of international environmental law. We anticipate that this may require what some scholars call a constitutional moment in international environmental governance.^{Footnote 179}

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⁷⁷ New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: http://unfccc.int.

⁷⁸ UNFCCC, ibid., Art. 8(2)(e).

⁷⁹ UNFCCC, ibid., Art. 7(2)(1).

⁸⁰ See, e.g., Memorandum of Understanding between the Secretariat and the Bureau of the Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar), UN Doc. UNEP/CBD/COP/3/Inf.38, 15 Oct. 1996, available at: http://www.cbd.int/doc/agreements/agmt-ramsar-1996-01-19-moc-web-en.pdf.

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⁸² Wolfrum & Matz, n. 7 above; van Asselt, n. 7 above; Doelle, n. 7. above; Fitzmaurice, M. & Elias, O., Contemporary Issues in the Law of Treaties (Eleven International, 2005)Google Scholar. See also Pauwelyn, J., Conflict of Norms in International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press, 2003)Google Scholar; Borgen, C.J., ‘Resolving Treaty Conflicts’ (2005) 37(3) George Washington International Law Review, pp. 573–648.Google Scholar

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⁸⁴ See, e.g., Borgen, C.J., ‘Treaty Conflicts, and Fragmentation’, Normative, in Hollis, D.B. (ed), The Oxford Guide to Treaties (Oxford University Press, 2012), pp. 448–71.Google Scholar

⁸⁵ For a similar argument in the wider context of sustainable development, see Lafferty & Hovden, n. 20 above; Voigt, n. 30 above.

⁸⁶ See, e.g., 2005 World Summit Outcome, UNGA Resolution A/RES/60/1, 24 Oct. 2005, at para. 169, available at: http://www.un.org/Docs/journal/asp/ws.asp?m=A/RES/60/1.

⁸⁷ Van Asselt, n. 7 above, at p. 1265.

⁸⁸ Rio de Janeiro (Brazil), 5 Jun. 1992, in force 29 Dec. 1993, available at: http://www.cbd.int.

⁸⁹ Views on the Paper on Options for Enhanced Cooperation among the Three Rio Conventions Submissions from Parties, UN Doc. FCCC/SBSTA/2006/MISC.4, 23 Mar. 2006, at p. 16.

⁹⁰ Report on the work of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea at its Eleventh Meeting, UN Doc. A/65/164, 23 Jul. 2010, at para. 90. See also Diz, D. et al. et al., ‘Summary of the Resumed Review Conference of the UN Fish Stocks Agreement: 24–28 May 2010’ (2010) 7(65) Earth Negotiations Bulletin, pp. 1–14, at 7.Google Scholar

⁹¹ Wolfrum & Matz, n. 7 above, at p. 163; Van Asselt, n. 7 above, at pp. 1265–6.

⁹² Scott, n. 7 above, at p. 214.

⁹³ Multilateral Environmental Agreements: A Summary, UN Doc. UNEP/IGM/1/INF/1, 30 Mar. 2001, at para. 42.

⁹⁴ For a review of the contemporary debate on sovereignty, see Bartelson, J., ‘The Concept of Sovereignty Revisited’ (2006) 17(2) European Journal of International Law, pp. 463–74.Google Scholar

⁹⁵ Examples include the prohibition of aggression, slavery, genocide, racial discrimination, and torture: Brownlie, I., Principles of Public International Law (Oxford University Press, 6^th edn, 2003), at p. 515Google Scholar. See also Steiner, Alston & Goodman, n. 59 above. For the concept of jus cogens, see, e.g., J.A. Frowein, ‘Ius Cogens’, in Wolfrum, n. 46 above; Shelton, n. 71 above.

⁹⁶ See, e.g., Bull, K., Hoft, R. & Sutton, M.A., ‘Coordinating European Nitrogen Policies between International Conventions and Intergovernmental Organizations’, in Sutton, M.A. et al. et al. (eds), The European Nitrogen Assessment (Cambridge University Press, 2011), at p. 577.Google Scholar

⁹⁷ Moncel & Van Asselt, n. 56 above, at p. 174.

⁹⁸ Chambers, W.B., Interlinkages and the Effectiveness of Multilateral Environmental Agreements (United Nations University Press, 2008), at p. 7.Google Scholar

⁹⁹ See, e.g., Sands & Peel, n. 7 above, at p. 893.

¹⁰⁰ Teclaff, L.A. & Teclaff, E., ‘Transfers of Pollution and the Marine Environment Conventions’ (1991) 31 Natural Resources Journal, pp. 187–211.Google Scholar

¹⁰¹ Montego Bay (Jamaica), 10 Dec. 1982, in force 16 Nov. 1994, available at: http://www.un.org/depts/los.

¹⁰² UNCLOS, ibid., Art. 195.

¹⁰³ Biofuels are fuels derived from biomass or waste feedstocks and include ethanol and biodiesel: see, e.g., International Energy Agency, available at: http://www.iea.org/topics/biofuels.

¹⁰⁴ European Environment Agency, ‘Opinion of the EEA Scientific Committee on Greenhouse Gas Accounting in Relation to Bioenergy’, 15 Sep. 2011, at pp. 5–6, available at: http://www.eea.europa.eu.

¹⁰⁵ Danielsen, F. et al. et al., ‘Biofuel Plantations on Forested Lands: Double Jeopardy for Biodiversity and Climate’ (2008) 23(2) Conservation Biology, pp. 348–58Google Scholar; Fargione, J. et al. et al., ‘Land Clearing and the Biofuel Carbon Debt’ (2008) 319(5867) Science, pp. 1235–8Google Scholar; Searchinger, T. et al. et al., ‘Use of US Croplands for Biofuels Increases Greenhouse Gases through Emissions from Land-Use Change’ (2008) 319(5867) Science, pp. 1238–40.Google Scholar

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¹⁰⁷ European Environment Agency, n. 104 above, at p. 8.

¹⁰⁸ Yang, Bae, Kim & Suh, n. 9 above; Jackson, R.B., et al. et al., ‘Trading Water for Carbon with Biological Carbon Sequestration’ (2005) 310(5756) Science, pp. 1944–7Google Scholar; Pimentel, D., ‘The Ecological and Energy Integrity of Corn Ethanol Production’, in Westra, L., Bosselmann, K. & Westra, R. (eds), Reconciling Human Existence with Ecological Integrity (Earthscan, 2008), pp. 245–56.Google Scholar

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¹¹⁰ ‘“Forest” is a minimum area of land of 0.05–1.0 hectares with tree crown cover (or equivalent stocking level) of more than 10–30 per cent with trees with the potential to reach a minimum height of 2–5 metres at maturity in situ. A forest may consist either of closed forest formations where trees of various storeys and undergrowth cover a high proportion of the ground or open forest. Young natural stands and all plantations which have yet to reach a crown density of 10–30 per cent or tree height of 2–5 metres are included under forest, as are areas normally forming part of the forest area which are temporarily unstocked as a result of human intervention such as harvesting or natural causes but which are expected to revert to forest’: Report of the Conference of the Parties on its Seventh Session, held at Marrakesh from 29 October to 10 November 2001, Addendum, Part Two: Action Taken by the Conference of the Parties, Vol. I, UN Doc. FCCC/CP/2001/13/Add.1, 21 Jan. 2002, at p. 58.

¹¹¹ Decision 2/CP.7, The Marrakesh Accords, UN Doc. FCCC/CP/2001/13/Add.1, 21 Jan. 2002.

¹¹² Sasaki, N. & Putz, F.E., ‘Critical Need for New Definitions of “Forest” and “Forest Degradation” in Global Climate Change Agreements’ (2009) 2(5) Conservation Letters, pp. 226–32Google Scholar; Glomsrød, S., Wei, T., Liu, G. & Aune, J.B., ‘How Well Do Tree Plantations Comply with the Twin Targets of the Clean Development Mechanism? – The Case of Tree Plantations in Tanzania’ (2011) 70(6) Ecological Economics, pp. 1066–74.Google Scholar

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¹¹⁶ For general discussions on the legal dimension of ocean fertilization, see, e.g., Freestone, D. & Rayfuse, R., ‘Ocean Iron Fertilization and International Law’ (2008) 364 Marine Ecology Progress Series, pp. 227–33Google Scholar; Abate, R.S. & Greenlee, A.B., ‘Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate Change, and the International Environmental Law Framework’ (2010) 27(2) Pace Environmental Law Review, pp. 555–98Google Scholar; Bertram, C., ‘Ocean Iron Fertilization in the Context of the Kyoto Protocol and the Post-Kyoto Process’ (2010) 38(2) Energy Policy, pp. 1130–9Google Scholar; VanderZwaag, D.L., ‘Ocean Dumping and Fertilization in the Antarctic: Tangled Legal Currents, Sea of Challenges’, in Berkman, P.A., Lang, M.A., Walton, D.W.H. & Young, O.R. (eds), Science Diplomacy: Antarctica, Science, and the Governance of International Spaces (Smithsonian Institution Scholarly Press, 2011), pp. 245–52Google Scholar; Warner, R., ‘Marine Snow Storms: Assessing the Environmental Risks of Ocean Fertilization’ (2009) 3(4) Carbon and Climate Law Review, pp. 426–36.Google Scholar

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¹¹⁸ Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, London (United Kingdom), 7 Nov. 1996, in force 24 Mar. 2006, available at: http://www.imo.org.

¹¹⁹ See, e.g., Zeebe, R.E., Zachos, J.C., Caldeira, K. & Tyrrell, T., ‘Carbon Emissions and Acidification’, (2008) 321(5885) Science, pp. 51–2.Google Scholar

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¹²³ Baird, Simons & Stephens, ibid.

¹²⁴ UNFCCC, n. 77 above, Art. 4(1)(d); Kyoto Protocol, n. 121 above, Art. 2(1)(a)(ii).

¹²⁵ Ocean iron fertilization could, in theory, reduce the rate of increase of atmospheric carbon dioxide, and hence the rate of ocean acidification in the upper ocean. However, if deployed on a climatically significant scale, this approach would relocate acidification from the upper ocean to mid- or deep water, where biota may be more sensitive to pH changes: Cao, L. & Caldeira, K., ‘Can Ocean Iron Fertilization Mitigate Ocean Acidification?’ (2010) 99(1–2) Climatic Change, pp. 303–11Google Scholar; Caldeira, K. & Duffy, P.B., ‘The Role of the Southern Ocean in Uptake and Storage of Anthropogenic Carbon Dioxide’ (2000) 287(5453) Science, pp. 620–2Google Scholar; Williamson, P. & Turley, C., ‘Ocean Acidification in a Geoengineering Context’ (2012) 370(1974) Philosophical Transactions of the Royal Society A, pp. 4317–42.Google Scholar

¹²⁶ Scott, K.N., ‘International Law in the Anthropocene: Responding to the Geoengineering Challenge’ (2013) 34(2) Michigan Journal of International Law, pp. 309–58.Google Scholar

¹²⁷ Jóhannsdóttir, Cresswell & Bridgewater, n. 12 above.

¹²⁸ Proelss, A. & Krivickaite, M., ‘Marine Biodiversity and Climate Change’ (2009) 3(4) Carbon and Climate Law Review, pp. 437–45, at 438.Google Scholar

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¹³¹ Meadows, D.H., Thinking in Systems: A Primer (Chelsea Green, 2008), at p. 137.Google Scholar

¹³² Ibid.

¹³³ See, e.g., Folke, C. et al. et al., ‘Reconnecting to the Biosphere’ (2011) 40(7) Ambio, pp. 719–38.Google Scholar

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¹³⁵ Meadows, n. 131 above, at pp. 161–2.

¹³⁶ Schelling, T.C., Micromotives and Macrobehavior (Norton, 1978).Google Scholar

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¹³⁸ Meadows, ibid.

¹³⁹ Unger, R., Law in Modern Society (Free Press, 1976), at p. 194.Google Scholar

¹⁴⁰ Steiner, Kimball & Scanlon, n. 21 above.

¹⁴¹ Report of the Study Group of the International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682, 13 Apr. 2006.

¹⁴² Vienna (Austria), 23 May 1969, in force 27 Jan. 1980, available at: http://untreaty.un.org/ilc/texts/instruments.

¹⁴³ VCLT, ibid., Art. 31(3)(c).

¹⁴⁴ We note that the formulation of Article 31(3)(c) has been criticized as unclear both in its substantive and temporal scope and its normative force. See, e.g., Linderfalk, U., ‘Who Are “The Parties”? Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the “Principle of Systemic Integration” Revisited’ (2008) 55(3) Netherlands International Law Review, pp. 343–64Google Scholar; McLachlan, C., ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54(2) International and Comparative Law Quarterly, pp. 279–319Google Scholar; Tzevelekos, V.P., ‘The Use of Article 31(3)(c) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology?’ (2010) 31 Michigan Journal of International Law, pp. 621–90.Google Scholar

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¹⁴⁶ Kauffman, S., At Home in the Universe: The Search for Laws of Self-Organization and Complexity (Oxford University Press, 1995)Google Scholar. For a general introduction to complex adaptive systems, see, e.g., Holland, J.H., Hidden Order: How Adaptation Builds Complexity (Perseus Books Group, 1995)Google Scholar; Levin, S.A., Fragile Dominion: Complexity and the Commons (Perseus Books Group, 1999)Google Scholar; Miller, J.H. & Page, S.E., Complex Adaptive Systems: An Introduction to Computational Models of Social Life (Princeton University Press, 2007)Google Scholar; Mitchell, M., Complexity: A Guided Tour (Oxford University Press, 2009).Google Scholar

¹⁴⁷ Kauffman, ibid, at p. 267.

¹⁴⁸ Steiner, Kimball & Scanlon, n. 21 above.

¹⁴⁹ Possibilities include fundamental ethical change promoted through a global treaty or the Earth Charter (see, e.g., Taylor, n. 74 above, at pp. 323–44), jurisprudential advancements through academic literature or judicial reasoning, or incremental changes through legal agreements or institutional reform. See Bugge & Voigt, n. 33 above.

¹⁵⁰ Latham, G.P. & Locke, E.A., ‘Self-Regulation through Goal Setting’ (1991) 50 Organizational Behavior and Human Decision Processes, pp. 212–47.Google Scholar

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¹⁵² GLWQA, ibid., Art. II.

¹⁵³ Canberra (Australia), 20 May 1980, in force 7 Apr. 1982, available at: http://www.ccamlr.org.

¹⁵⁴ Ibid., Preamble.

¹⁵⁵ See, e.g., Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, Barcelona (Spain), 10 Jun. 1995, in force 12 Dec. 1999, available at: http://eur-lex.europa.eu.

¹⁵⁶ N. 65 above.

¹⁵⁷ N. 66 above.

¹⁵⁸ Agenda 21: Programme of Action for Sustainable Development, UN Doc. A/CONF.151/26, 14 Jun. 1992, available at: http://www.unep.org.

¹⁵⁹ IUCN Environmental Law Programme, Draft International Covenant on Environment and Development. Fourth edition: Updated Text (IUCN Environmental Law Programme & International Council of Environmental Law, 2010), available at: http://www.iucn.org/about/work/programmes/environmental_law/elp_resources/elp_res_publications/?uPubsID=4197.

¹⁶⁰ The Earth Charter Initiative, The Earth Charter (The Earth Charter Initiative, 2000), available at: http://www.earthcharterinaction.org.

¹⁶¹ Report of the World Summit on Sustainable Development, Plan of Implementation of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20, 4 Sep. 2002, available at: http://www.johannesburgsummit.org.

¹⁶² N. 30 above.

¹⁶³ Rio Declaration, n. 66 above, Preamble.

¹⁶⁴ Rio Declaration, ibid., Principle 7.

¹⁶⁵ World Charter for Nature, n. 65 above, Principle 4.

¹⁶⁶ Earth Charter, n. 160 above, Principle 5.

¹⁶⁷ Draft International Covenant, n. 159 above, Art. 2. This was reflected in the text upon consulting with the drafters of the Earth Charter to ensure consistency among the principles set forth in both texts.

¹⁶⁸ Bosselmann, n. 32 above, at pp. 162–74.

¹⁶⁹ Karr, J.R., ‘Biological Integrity: A Long-Neglected Aspect of Water Resource Management’ (1991) 1(1) Ecological Applications, pp. 66–84Google Scholar; Karr, J.R. & Chu, E.W., ‘Ecological Integrity: Reclaiming Lost Connections’, in Westra, L. & Lemons, J. (eds), Perspectives on Ecological Integrity (Kluwer Academic, 1995), pp. 34–48.Google Scholar

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¹⁷¹ Rockström et al., n. 3 above.

¹⁷² Griggs et al., n. 170 above.

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¹⁷⁶ Decision X/2, The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, UN Doc. UNEP/CBD/COP/DEC/X/2, 29 Oct. 2010.

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Article contents

International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements

Abstract

Keywords

Information

1. introduction

2. implications of planetary boundaries for international environmental law

3. does international environmental law have a goal?

4. dysfunction of international environmental law in the absence of a goal

4.1. The Current Mode of Institutional Cooperation and Coordination

4.2. Environmental Problem Shifting among Planetary Boundaries

4.3. Purposive Legal Reasoning in the International Environmental Law Context

5. ecological integrity as an emerging common denominator

5.1. Ecological Integrity in International Environmental Law

5.2. Relationship between Planetary Boundaries and Ecological Integrity

6. conclusion

References

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