Rethinking Global Environmental Law and Governance in the Anthropocene

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Rethinking Global EnvironmentalLaini and Governance in theAnthropoceneLouis J Kotzé*

'We can no longer assume that the effects of human scarification andcontamination of the earth's surface will be masked by a very large life-support system of infinite resilience.'^

The word Anthropocene describes a new geological epoch that follows theHolocene epoch. It is the signifier of the period in which people have a devastatingand overwhelming impact on the earth and its systems. The Anthropocene alsodescribes the new context in which we are going to have to consider how we shoulddeal with the effects of global anthropogenic ecological change, including how wethink about natural resources and energy security. This will require new perspectiveson and reimagining orthodox social institutional constructs such as globalenvironmentallawandgovernance, among others, and their ability to successfullymediate the human-environment interface. This article reflects on how we will haveto rethink global environmental law and governance as a result of the Anthropocene.It specifically attempts to identify a host of considerations that environmentallawyers, including those who focus on natural resources and energy law,

* Louis J Koué is a Professor of Law, North West University, South Africa and VisitingProfessor of Environmental Law at the University of Lincoln, United Kingdom. Theauthor is indebted to Christoph Kueffer (Zurich Institut für Integrative Biologie),Benjamin Richardson (University of British Columbia), Anna Grear (CardiffUniversity), Anél du Plessis (North-West University), Jonathan Verschuuren (TilburgUniversity), Afshin Akhtarkhavari (Griffith University), Brendan Mackey (GriffithUniversity) and Maria Ivanova (University of Massachusetts) for their helpfulcomments on earlier versions of this article. All errors and views are the author's own.Sincere thanks also go to tlie Alexander von Humboldt Foundation, Germany, and theNational Research Foundation of South Africa for their generous financial support thatmade this research possible. The author can be reached at [email protected].

1 George M Woodwell, 'On Purpose in Science, Conservation and Government: TheFunctional Integrity of the Earth is at Issue not Biodiversity' (2002) 31 Ambio 432, 433.

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will have to contemplate if global environmental law and governance were torespond better to the many challenges and complexities in the Anthropocene epoch.At a more general level, the article endeavours to introduce the Anthropoceneinto the environmental law and govemance domain as a new discursive contextthat could hopefully assist in the appropriate future development of globalenvironmental law and governance.

Coined by the 1995 Nobel Laureate, Paul J Crutzen and his colleagueEugene F Stoermer,^ the word Anthropocene is the signifier of the periodin which people have a devastating and overwhelming impact on the earthand its systems.^ While it has yet to be formally accepted as describing a newgeological epoch,* the term informally denotes a new time in geologicalhistory, in which the biophysical factors introduced by human beings intothe biosphere have begun to change the physical parameters that determinethe functioning of all key earth system processes."^ Some argue that:

'the Earth System has moved well outside the range of the naturalvariability exhibited over the last half million years at least. The natureof changes now occurring simultaneously in the Earth System, theirmagnitudes and rates of change are unprecedented. The Earth iscurrently operating in a no-analogue state.'^

See Paul J Crutzen and Eugene F Stoermer, 'The "Anthropocene"' (2000) 41 GlobalChange Newsletter 17; PaulJ Crutzen, 'The Effects of Industrial and AgriculturalPractices on Atmospheric Chemistry and Climate during the Anthropocene' (2002) 37Journal of Environmental Science and Health 423.Scientists explain that it is incorrect to denote the Anthropocene as an 'era'. Eras arelarge-scale units such as the Mesozoic era. The Anthropocene is rather an epoch, whichis a much more modest subdivision of a geological period. Jan Zalasiewicz et al, 'The NewWorld ofthe Anthropocene' (2010) 44 Environmental Science and Technology 2228, 2230.In terms of the geological time scale, the Anthropocene unofficially signals a newepoch that follows the Holocene and it might be officially adopted in future by theInternational Commission on Stratigraphy as part of the geological time scale. It willthen join the Cambrian, Jurassic, Pleistocene and Holocene as an official unit ofthegeological time scale. See further Zalasiewicz et al, n 3 above, 2228.Simon Dalby, 'Ecology, Security, and Change in the Anthropocene' (2007) XIII(2) TheBrown Journal of World Affairs 155, 157.International Geosphere-Biosphere Programme '2001 Amsterdam Declaration on EarthScience', www.igbp.net/about/history/2001amsterdamdeclarationonearthsystemscience.4.1b8ae20512db692f2a680001312.html accessed 8 August 2012. Othercommentators frame this phenomenon in terms of planetary boundaries or boundaryconditions which, if crossed, would result in catastrophic disruptions to the earth and itssjistems. Nine planetary boundaries have been identified including: climate change, oceanacidification, stratospheric ozone depletion, atmospheric aerosol loading, biogeochemicalflows, global freshwater use, land system change, rate of biodiversity loss and chemicalpolludon. Of these, three threshold values have been crossed, namely climate change,biodiversity loss and the nitrogen cycle. See Johan Rockström et al, 'Planetary Boundaries:Exploring the Safe Operating Space for Humanity' (2009) 14(2) Ecology and Society 1.

GLOBAL ENVIRONMENTAL LAW AND GOVERNANCE IN THE ANTHROPOCENE 123

In addition to describing a new epoch, the word Anthropocene describesthe new context in which we are going to have to consider how we shoulddeal with the effects of global human-induced ecological change, whichis mostly as a result of our energy-intense processes and consumer-driven,neo-liberal economies.' Such considerations will include, among others: howwe value and regulate the world's limited and dwindling natural resources;how we approach issues of unsustainable energy use and future options forenergy security; how the world would ensure environmental and humansecurity, especially in a North-South dimension that must take cognisance ofprevailing and potentially deepening global environmental injustices; andas a response to these challenges, how present regulatory paradigms mustchange to accommodate visions of a future earth in the Anthropocene.

As a more recent incarnation of earlier metaphors such as the Gaiahypothesis,** the notion of the Anthropocene challenges us to developresilience to the impact we are having on what is after all a vulnerable, finiteplanet,^ and to respond adequately to the many anthropogenic ecologicalchanges that will, by all counts, severely affect earth and life on earth aswe know it. The Anthropocene has subsequently become a trendy fieldof scientific enquiry, as the term's frequent recurrence in the literaturesuggests."' Most publications focus on the implications of the Anthropoceneand its consequences for humanity. More pertinently, some seek to answerthe question: how should we respond to the Anthropocene?" Responsesshould not be limited to technological interventions such as geo-engineering

7 Chakrabarty suggests that: 'it is no longer a question simply of man having an interactiverelation with nature. This humans have always had, or at least that is how man has beenimagined in a large part of what is generally called the Western tradition. Now it is beingclaimed that humans are a force of nature in the geological sense.' Dipesh Chakrabarty,'The Climate of History: Four Theses' (2009) 35 Critical Inquiry 197, 207.

8 The central idea of the Anthropocene is similar to James Lovelock's Gaia hypothesis.The Gaia hypothesis postulates the earth as a self-regulatory control system basedon homeostasis and it has been hailed as a sort of 'new age packaging of the Earthsystem concept'; the latter of which is central to the idea of the Anthropocene. WilliamBoyd, 'Climate Change, Fragmentation, and the Challenges of Global EnvironmentalLaw: Elements of a Post-Copenhagen Assemblage' (2010) 32 U PaJ Int'l L 457, 491.Lovelock describes Gaia theory as being concerned with 'the evolution of a tighdycoupled system whose constituents are the biota and their material environment,which comprises the atmosphere, the oceans, and the surface rocks'. James E Lovelock,'Geophysiology, the Science of Gaia' (1989) 27 Reviews of Geophysics 215, 216. Seealso James E Lovelock, 'Hands up for the Gaia Hypothesis' (1990) 344 Nature 100.

9 Michael R Raupach and Joseph G Canadell, 'Carbon and the Anthropocene' (2010) 2Current Opinion in Environmental Sustainability 210, 216.

10 See citations given throughout this article.11 JK Gibson-Graham and Gerda Roelvink, 'An Economic Ethics for the Anthropocene'

(2009) 41 Antipode 320, 322.


aimed at mitigation and/or earth system restoration.'^ An essential part ofthe response also involves transforming people and the socio-institutionalconstructs through which we attempt to mediate the human-environmentinterface. This response will have to acknowledge that: ' [d] espite the needfor sophisticated technological solutions... ultimately our decisions willreflect our moral and ethical commitments to other humans and to thenatural world, even if they will not reflect them perfectly.'^^ If part of thesolution to the socio-legal, political, economic and ecological problems thatarise in the Anthropocene lies in socio-institutional intervention and humantransformation, then we must also turn to law (and governance) as humanconstructs and mediating social interventions in our efforts to respond tothe many challenges of the Anthropocene.

Despite its new-found popularity, it is curious that, apart from minorexceptions,^^ the Anthropocene has not yet received the benefit ofcomprehensive analytical treatment in the legal domain. This is surprisingconsidering that the Anthropocene and the pervasive anthropogenic impactsthat are associated with this epoch are set to fundamentally change howenvironmental lawyers, especially those who focus on natural resources andenergy law, will approach the mounting socio-political, legal, economic andecological challenges through ailing regulatory interventions. Speth andHaas'^ argue that at best, the current environmental law and governanceresponse is effective only to a limited extent: 'global environmental conditionsare steadily worsening,... current efforts to address them are inadequate,...major new initiatives are needed, and these initiatives should address theunderlying drivers of deterioration.' To rise to these profound challengesthe entire gamut of global environmental laws and governance interventions

12 See, eg, David W Keith, 'Geoengineering the Climate: History and Prospect' (2000)25 Annual Review of Energy and the Environment 245; Bala Govindasamy and KenCaldeira, 'Geoengineering Earth's Radiation Balance to Mitigate GO2-induced ClimateChange' (2000) 27 Geophysical Research Letters 2141.

13 Sarah Krakoff, 'Parenting the Planet' (2010) Legal Studies Research Paper Series:University of Colorado Law School Working Paper 10-03, 161, http://papers.ssrn.com/sol3/papers.cfm?abstractjd=1548658 accessed 10 August 2012.

14 See Tim Stephens, 'Re-imagining International Water Law?' (2011) University ofSydney, Sydney Law School Legal Studies Research Paper 11/47, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1909673 accessed 13 August 2012; Nicholas ARobinson, 'Beyond Sustainability: Environmental Management for the AnthropoceneEpoch' (2012) 12 Journal of Public Affairs 181; Rosemary Rayfuse, 'The Anthropocene,Autopoiesis and the Disingenuousness of the Genuine Link: Addressing EnforcementGaps in the Legal Regime for Areas Beyond National Jurisdiction' (2009) University ofNew South Wales Faculty of Law Research Series 2009/2 http://law.bepress.com/cgi/viewcontent.cgi?article=l 144&context=unswwps-flrps09 accessed 14 August 2012.

15 James Gustav Speth and Peter M Haas, Global Environmental Governance (Island Press2006), 139.


will in all probability need to be reconceptualised significantly, redesignedand ultimately enhanced to the point that they are more optimally able torespond to the host of pervasive crises that await us.

While authors such as Biermann"' have written extensively on theAnthropocene in the context of earth systems governance,'^ this articleseeks to provide an account of the place of global environmental lawand governance in the Anthropocene from a legal perspective.'^ TheAnthropocene concerns the entire earth system, and the issues this articlefocuses on are implicitly reflective of the broader environmental law andgovernance domain, including, but not limited to, renewable and non-renewable natural resources; issues of environmental justice; human,energy and environmental security; and the broader structures of law andgovernance that mediate the human-environment interface. Importantly,this article is not a detailed enquiry into the successes and failures of globalenvironmental law and governance, nor will it proffer comprehensiveproposals for ameliorative reforms. Instead, (a) it specifically identifiesa range of considerations that lawyers will have to reflect on if globalenvironmental law and governance are to respond better to the numerouschallenges and complexities of the Anthropocene epoch; and (b) at a moregeneral level it seeks to introduce the Anthropocene into the legal domain asa new discursive context that could hopefully assist in the appropriate futuredevelopment of global environmental law and governance.

The discussion is structured as follows: while the second part describes,as a pretext and point of departure, the metaphorical worth and utilityof the Anthropocene, the third part investigates the nature and extentof the Anthropocene. The fourth part highlights the distinct features of

16 Frank Biermann et al, 'Navigating the Anthropocene: Improving Earth SystemGovernance' (2012) 335 Science 1306; Frank Biermann et al, 'Navigating theAnthropocene: the Earth System Governance Project Strategy Paper' (2010) 2Gurrent Opinion in Environmental Sustainability 202; Frank Biermann '"Earth SystemGovernance" as a Grosscutting Theme of Global Ghange Research' (2007) 17 GlobalEnvironmental Ghange 326; Frank Biermann, 'Planetary Boundaries and Earth SystemGovernance: Exploring the Links' (2012) 81 Ecological Economics 4.

17 Biermann explains that: '[e]arth system governance is concerned with the humanimpact on planetary systems. It is about the societal steering of human activities withregard to the long- term stability of geobiophysical systems.' Ibid 5.

18 The article uses 'global environmental law' to mean an all-encompassing and newlyemerging lex speáalis, which is simultaneously national, inter-national (between andacross domestic jurisdictions), regional and international (supranational), and itemanates from multiple state and non-state actors variously situated at all of theselevels. See further Tseming Yang and Robert V Percival, 'The Emergence of GlobalEnvironmental Law' (2009) 36 Ecology L Q 615. Notably, in terms of this description,it is much closer to global environmental governance (explained elsewhere in thisarticle) than international environmental law is to global environmental governance.


the Anthropocene that could influence global environmental law andgovernance, and it describes the ways in which the Anthropocene changes theglobal regulatory setting for global environmental law and governance. Thefifth part investigates the role of global environmental law and governanceas mediating socio-institutional constructs in the human-environmentinterface; it briefly takes stock of global environmental law and governance;and it explains that these social constructs, as they currently exist, willprobably be unsuitable to mediate the human-environment interface in theAnthropocene epoch. The sixth part concludes the article by highlightinga range of considerations that could inform efforts to rethink globalenvironmental law and governance in the Anthropocene.

Pretext: metaphorical worth and utility of the Anthropocene

Metaphorically, this article likens the Anthropocene to an analytical lensthrough which we may view and understand the magnitude of the globalimpact of anthropogenic impacts on the earth and its systems today. Thesimile that likens the Anthropocene to a lens is reminiscent of Pease's^^ simile,in which she sees political theory frameworks as 'a pair of glasses whosedifferent lenses allow us to view the distinct political, economic, and socialcharacteristics and processes that shape world polities'. She explains that:

'These lenses act as filters, directing attention toward (and away from)certain kinds of actors and focusing discussion on certain kinds ofquestions. Through these theoretical lenses, we see different reflections,different explanations regarding which actors - states, individuals,class, gender - should figure most prominently in our understandingof international relations.''^"

The Anthropocene could arguably fulfil a similar scientific function. It hasthe potential to raise new questions, and to identify new issues, emergingpriorities, new relationships and, more importantly, suitable interventioniststrategies. As an analytical lens the Anthropocene would be equally valuablefor the current and future research agenda of global environmental changescience,^' for instance, and for informing the normative and structuralreforms of the many social institutions that society would have to use toaddress the numerous challenges arising in the Anthropocene. We could

19 Kelly-Kate S Pease, International Organizations: Perspectives on Governance in the Twenty-FirstCentury (3rd edn, Pearson Prentice Hall 2008), 1-2.

20 Ibid.21 See on the historical development and current meaning of the global change research

agenda, Libby Robin and Will Steffen, 'History for the Anthropocene' (2007) 5 HistoryCompass 1694, 1696-1699.


thus use the Anthropocene to evaluate, and use as a justificatory basis totransform, the many institutional/normative interventions we have used thusfar to protect natural resources, regulate pollution, address environmentalinjustices and ensure human, environmental and energy security.

Related to its metaphorical function as a lens, the Anthropocene could alsoserve as a common denominator to facilitate our understanding ofthe 'new'human-dominated human-environment interface and the various pragmaticand scientific challenges that arise in this respect. Bettini, Brandstedt andThorén^^ present another metaphor in which the Anthropocene is aninverted prism that 'combines into a single beam the numerous (apparently)divergent messages that signal the unprecedented impacts that humansexercise on the biosphere and gives them a common meaning'. As a commondenominator, the Anthropocene could level the scientific playing field, as itwere; could create a common understanding of the centrality of people inglobal earth systems change; could refocus the debate on ways to amelioratethis impact; could instil a common understanding ofthe global geographical,temporal and causal dimension of anthropogenic impacts and ecologicalcrisis; and could promote a collective appreciation of the many differentaspects surrounding possible socio-legal institutional change.

The Anthropocene

What is it that we will see through the lens of the Anthropocene?Etymologically, Anthropocene derives from the Greek 'anthro' and 'cene',which mean 'human' and 'new', respectively.^^ In the geo-ecological context,this denotes a new period when human beings dominate the geological epochby acting as major driving forces in modifying the environment.^* In otherwords, it is an epoch wherein people are changing the course of nature.

22 Giovanni Bettini, Eric Brandstedt and Henrik Thorén, 'Sustainability Science and theAnthropocene: Re-negotiating the Role for Science in Society', http://edocs.fu-berlin.de/docs/servlets/MCRFileNodeServlet/FUDOCS_derivate_000000001299/Bettini-Sustainability_Science_and_the_Anthropocene-305.pdf?hosts accessed 15 August 2012.

23 Richard A Slaughter, 'Welcome to the Anthropocene' (2012) 44 Futures 119.24 Mike Hodson and Simon Marvin, 'Urbanism in the Anthropocene: Ecological Urbanism

or Premium Ecological Enclaves?' (2010) 14 City 299-313. The extent of human impactson earth has been documented extensively in many disciplines and contexts. In thecontext of the Anthropocene, see among others: Ron Wagler, 'The AnthropoceneMass Extinction: An Emerging Curriculum Theme for Science Educators' (2011 ) 73The American Biology Teacher 78; Juan J Armesto et al, 'From the Holocene to theAnthropocene: A Historical Framework for Land Cover Change in Southwestern SouthAmerica in the Past 15,000 Years' (2010) 27 Land Use Policy 148; Ignacio Ayestaran, 'TheSecond Copernican Revolution in the Anthropocene: An Overview' (2008) 3 RevistaInternacional Sostenibilidad, Technologia y Humanismo 146.


the earth and its systems. It follows the Holocene interglacial phase, a stableepoch that was characterised by extraordinarily good living conditions thatenabled the development of modern societies in a world of seven billionpeople.^^ It is therefore possible to discern a Holocene-Anthropoceneboundary that separates a more harmonious Holocene epoch from thecurrent human-dominated and unstable Anthropocene that has graduallybecome much less conducive to sustaining all forms of life.̂ ^

Steffen, Grützen and McNeilP' define the Anthropocene more formallyas follows:

'The term Anthropocene... suggests that the Earth has now left its naturalgeological epoch, the present interglacial state called the Holocene.Human activities have become so pervasive and profound that they rivalthe great forces of Nature and are pushing the Earth into planetary terraincognita. The Earth is rapidly moving into a less biologically diverse,less forested, much warmer, and probably wetter and stormier state.'

While there is some uncertainty and disagreement on a more exactmoment when the human footprint became so overwhelming that itsparked the Anthropocene,^* its origins are generally traced to the shiftfrom a predominantly agricultural society to an industrial one, that is, theIndustrial Revolution in the 1700s, and more specifically to the period thatsaw augmented industrial activity and the rise of energy-intense production

25 The Holocene started approximately 12,000 years ago and was characterised by stableand temperate climatic and environmental conditions, which have (mostly) allowedhuman development to flourish. Erik Swyngedouw, 'Whose Environment? The End ofNature, Climate Change and the Process of Post-Politicization' (2011) XIV Ambiente& Sociedade Campinas 69. In fact, the 'stable' Holocene epoch proved to be soconducive to facilitating human development that it eventually resulted in the presenthuman-dominated Anthropocene.

26 It is argued that: 'Earth has endured changes sufficient to leave a global stratigraphiesignature distinct from that of the Holocene or of previous Pleistocene interglacialphases, encompassing novel biotic, sedimentary, and geochemical change. Thesechanges, althotigh likely only in their initial phases, are sufficiendy distinct and robustlyestablished for sviggestions of a Holocene-Anthropocene boundary in the recenthistorical past to be geologically reasonable.'Jan Zalasiewicz et al, 'Are We Now Livingin the Anthropocene?' (2008) 18(2) Geological Society of America Today 4.

27 Will Steffen, Paul J Crutzen and John McNeill, 'The Anthropocene: Are Humansnow Overwhelming the Great Forces of Nature?' (2007) 36 Ambio 614. See also EvaLövbrand, Johannes Stripple and Bo Wiman, 'Earth System Governmentality: Reflectionson Science in the Anthropocene' (2009) 19 Global Environmental Change 7.

28 Giacomo Gertini and Riccardo Scalenghe, 'Anthropogenic Soils are the Golden Spikesfor die Anthropocene' (2011) 21 The Holocene 1269, 1269-1270; Ananda Gunatilaka,'The Anthropocene - A 200 Year Record of Human Driven Geological Impacts:Prelude to Global Climate Changes and Implications for South Asia' (2009) 37 Journalof National Science Foundadon of Sri Lanka 3; Zalasiewicz, n 26 above, 4; Chakrabarty,n 7 above, 216.


and consumer processes in the 1800s.^ While it could be argued that thisis merely a culturally constructed theory (since the Anthropocene couldalso have started with agricultural practices and their use of nitrogen, forexample), it was during the Industrial Revolution that fossil fuels werediscovered and increasingly exploited to drive development and satisf)'insatiable human demand for growth.'° Today we know that these andother energy-dependent processes and activities result in a significantincrease in the human enterprise and its imprint on the environment.^^ Thisimprint is particularly visible in accelerating population growth,'^ increasedurbanisation, biodiversity loss, rapidly declining non-renewable resourcessuch as coal and oil, and climate change; or what Young^^ calls the 'greatissues of our times in the realm of human-environment relations'. TheAnthropocene is also characterised, among other human modifications of theglobal environment, by increased emissions of sulphur, nitrogen and othergreenhouse gases; the transformation and disruption of vast land surfaces;changing water cycles; and widespread species extinction.^^

These impacts are collectively having a tremendous effect on the earthand its systems, notably, because they have become exponential in character,compounded in their severity, and they could lead to irreversible change.'^The 2012 Clobal Environment Outlook 5 (GEO5) is the latest global surveyto reiterate that the earth and its systems are moving dangerously closeto critical tipping points, which, if crossed, will alter life on earth.^'' GEO5emphasises that as an aggregated response to anthropogenic impacts, the

29 Will Steffen et al, 'The Anthropocene: Conceptual and Historical Perspectives' (2011)369 Philosophical Transactions of the Royal Society 842, 847-849.

30 See, more generally, Raupach and Canadell, n 9 above, 210.31 Steffen et al, n 29 above, 848.32 Population growth, especially to the extent that it increases demands for economic

development, is considered to have a multiplier effect on environmental pressures. Itis estimated that the current world population of seven billion people will reach tenbillion by 2100. UNEP, 'GEO5-Global Environment Ouüook: Environment for theFuture We Want' (2012), www.unep.org/geo/pdfs/geo5/GEO5_report_full_en.pdfaccessed 4 September 2012.

33 Oran R Young, 'Land Use, Environmental Change, and Sustainable Development: TheRole of Institutional Diagnostics' (2011) 5 International Journal of the Commons 66, 67.

34 Ola Uhrqvist and Eva Lövbrand, 'Seeing and Knowing the Earth as a System: Tracingthe History of the Earth System Science Partnership', www.earthsystemgovernance.org/ac2009/papers/AC2009-0107.pdf accessed 8 August 2012. Some of these impactsare highlighted and expanded in detail in the 2005 Millennium Ecosystem Assessment. Seethe Millennium Ecosystem Assessment, 'Synthesis Report', www.maweb.org/en/synthesis.aspxaccessed 13 August 2012.

35 Richard J Lazarus, The Making of Environmental Law (University of Chicago Press 2004),12-13.

36 UNEP, n 32 above, viii.


earth system has been mostly able to dampen these impacts through itsinherent resilience, which buffers disturbances. This, however, is set to changedramatically.'^ While the ecological crisis and its manifestation in biodiversityloss, species extinction and climate change, for example, are important, theAnthropocene very specifically indicates the loss of resilience and functionalintegrity of the earth and its systems.̂ ^ Notably, recent predictions suggest thatglobal-scale state shifts (similar to the last glacial-interglacial transition, the'Big Eive' mass extinction and the Cambrian explosion) might occur in theearth's biosphere, which could lead to new mean conditions outside the rangeof fluctuation evident in the previous state, and where it would be 'difficult oreven impossible for the [earth] system to return to its previous state'.-̂ ^ Today,anthropogenic 'forcing mechanisms' such as population growth, resourceconsumption, habitat transformation and energy production are exceedingearlier forcing mechanisms (such as the last glacial-interglacial transition) inrate and magnitude.*" It is the loss of this resilience, functional integrity andthe possibility of state shifts occurring that some fear will plunge the earthand its systems into an irreversibly unsustainable state that could ultimatelylead to another mass extinction*' resembling the critical planetary-scaletransitions and state shifts of earlier hallmarks.*^

The Anthropocene therefore suggests far more than the unprecedentedecological changes that we are witnessing today; it focuses on the very essenceof life on earth in its greatest totality. It is an epoch that actually recastsenvironmental problems as 'clear and present dangers' by highlightingthat those conditions that 'give true quality and dignity to human life aredeteriorating across much of this planet in ways that reduce the survivalvalue of our species to a matter of mere biological necessity'.*' While theecological impacts of the foregoing are self-evident, the myriad concomitantsocio-economic, political and legal challenges arising as a result will be equallysevere. Droughts, flooding and rising sea levels as a result of climate change,the displacement of people and armed conflict over scarce natural resourcesare only some examples of emerging socio-political stresses resulting fromglobal environmental change. Eor example, climate change has beendescribed as a 'threat multiplier' and the 'cascading effects of climate change

37 Ibidl97.38 Woodwell, n 1 above, 432-436.39 Anthony D Barnosky et al, 'Approaching a State Shift in Earth's Biosphere' (2012) 486

Nature 52. See also Marten Scheffer et al, 'Gatastrophic Shifts in Ecosystems' (2001)413 Nature 591.

40 Barnosky, n 39 above, 53.41 Zalasiewicz et al, n 3 above, 2229.42 Barnosky, n 39 above, 53.43 Lamont G Hempel, Environmental Governance: The Global Challenge (Island Press 1996), 4.


- its ability to inflame social, economic and political dilemmas - make it acore threat to international peace and security'.** No doubt global financialstability, political security (for example, as a result of the need to ensureenergy security) and social order will be deeply influenced by thepervasive ecological crises of the Anthropocene. To avoid the criticaltipping points in the earth system that might lead to rapid and irreversiblechange, the Anthropocene thus goes to the heart of efforts to survive andcontinue life on earth.*^ These efforts must be accomplished througha range of preventive, mitigation and adaptation strategies in society'stechnological, economic, political, cultural, religious, broader socialand legal structures. While the Anthropocene will in all likelihood exerttremendous strain on our existing normative systems, it is neverthelessan urgent call for dramatic regulatory interventions of a kind hithertounseen, if we are to avoid crossing these tipping points. In addition tohighlighting the urgency of global political, legal and governance reform,the Anthropocene emphasises that the response must be sufficient to dealcomprehensively with a whole scope of continuously changing issues thatare ecologically rooted but that have severe social (including political,legal and economic) repercussions.'^

A new label for an old problem?

Apart from perhaps suggesting that it will be particularly severe, thisdescription of the Anthropocene may be thought not to introduce anythingreally revolutionary or different from what we already know. It is trite thatecological change is caused by people; that the impacts are global; thatthe impacts affect politics, economics and social life; and that we will haveto respond to these through whatever means we have at our disposal (bethey technological and/or normative). Is the Anthropocene thereforesimply another fashionable term that, like other terms of our times such as'sustainable development', will prove to have a disappointingly insignificant

44 Trina Ng, 'Safeguarding Peace and Security in our Warming World: A Role for theSecurity Council' (2010) 15 Journal of Conflict and Security Law 275, 283.

45 Biermann et al, n 16 above, 1306.46 In the words of Richardson: 'The disparate corollaries of these environmental changes

and stresses for humankind will include food shortages, poisoned food chains,dissemination of pathogens, intense physical damage from storms and other climaticchanges, conflicts over water and other increasingly scarce natural resources, as well aspoverty and a widening gulf between the rich and the poor.' Benjamin J Richardson,'A Damp Squib: Environmental Law from a Human Evolutionary Perspective' (2011)Osgoode CLPE Research Paper 08/2011, Osgoode CLPE Research Paper Series Vol07(3), http://ssrn.com/abstract=l760043 accessed 13 August 2012.


effect on our vision and on the design and implementation ofthe socio-legalconstructs that seek to mediate the human-environment interface? Is thenotion of the Anthropocene sufficiently radical to provide a paradigm shiftin our thinking about the human-environment interface? Put differently,what are the distinct and novel features of the Anthropocene that could influence

our perceptions ofthe social interventions that we would use to respond to the myriad

challenges to be faced in the Anthropocene? It would after all be these features

and the socio-political, economic, legal and ecological challenges they raisethat render the Anthropocene 'different' from the Holocene and that makeit interesting, and at the same time urgent and pertinently challenging, topolicy-makers, scientists, economists and for lawyers.

The new 'global' context and nature ofthe Anthropocene

Global change science busies itself with the Anthropocene and globalenvironmental law and governance and their focus is on the global context.The term 'global', however, has various different meanings for differentpeople. As Paterson, Humphreys and Pettiford^^ indicate:

'it is in the conflict over how we understand "global" that most differencesof interpretation [of global environmental governance] arise... this rangesfi"om the use of "global" in lieu of international... through to the use of"global" to mean deterritorialized... These differences reflect a range of usesmore general in academic and popular usages of the term, where globalis variously taken simply as a synonym for international (the sum of thingswhich occur across state borders), or as a description for those things whichoccur everywhere, through to more coherent conceptualizations of globalas a distinct phase of capitalist development, or a spatial reorganization ofpolitics involving a decline in the relevance of territory.'

Amidst this confusing terminological malaise, the Anthropocene offers thepossibility of formulating a new and possibly more uniform understandingof the 'global'. Why is this so?

The Anthropocene highlights the interconnectedness of natural earthprocesses or, put differently, the interconnected nature ofthe environment,the reciprocity of its processes and the many linked cause-and-effectrelationships that exist on a global scale. It is concerned with the totalityof the entire earth system that, notably, also includes humans. Rockström*^et al helpfully define earth systems in the context of the Anthropocene as:

47 Matthew Paterson, David Humphreys and Lloyd Pettiford, 'Conceptualizing GlobalEnvironmental Governance: From Interstate Regimes to Counter-hegemonic Struggles'(2003) 3(2) Global Environmental Politics 1, 4.

48 Rockström et al, n 6 above, 23.


' the integrated biophysical and socioeconomic processes andinteractions (cycles) among the atmosphere, hydrosphere, cryosphere,biosphere, geosphere, and anthroposphere (human enterprise) in bothspatial - from local to global - and temporal scales, which determinethe environmental state of the planet within its current position in theuniverse. Thus, humans and their activities are fully part of the EarthSystem, interacting with other components.'^^

The interconnectedness that the earth system represents raises particularchallenges for global environmental law and governance because theseresponses would ideally need to address all of these issues simultaneously,in an integrated or holistic way; not only in single countries individually,but also in all parts of the world collectively, now and in the future. Thegbbal challenge of the Anthropocene is thus geographical, temporal andcausal, and a proper response might very well be a holistic one, or forpresent purposes, a more holistic global environmental law and governanceeffort that is sensitive to time, scale and its subject. The global nature of theAnthropcene in the context of the earth systems concept also challengesus to factor in the predominant role of humans as ecological agents thatare participants in the biophysical and socio-economic processes. TheAnthropocene thus shifts the focus from the immediate and local to theglobal and it brings humans into the global paradigm.

Also, the result of anthropogenic impacts has taken on spatial-temporal-causal dynamics where, for example, present automobile emissions in acity cause not only respiratory diseases in that city but also contribute togreenhouse gas concentrations that fuel global climate change, which, inturn, could affect unborn future generations across the globe for years tocome. These impacts and effects are not distinctly local, national, regionalor international (they are all of these collectively at the same time); and thesocio-legal institutional framework that has been designed to deal with themalso cannot be solely local, national, regional or international. Neither do theimpacts affect only biodiversity and water resources, for example; they affectthe entire earth system. In this way the 'globid' is not only international andfocused solely on distinct environmental issues, but it includes all of theseconsiderations simultaneously in a causal and reciprocal setting characterised

49 Boyd explains that understanding of the earth as a single integrated system thatrequires certain forms of global environmental governance is not entirely novel:'What is new about this late twentieth and early twenty-first century approach toproblems of Earth system disruption, however, is the imperative of globalism thatinheres in the basic framing, the notion that human and biogeophysical systems aretightly coupled, [and] the recognition that human activity is pushing the Earth systemoutside of its "natural" operating state.' Boyd, n 8 above, 484-485.


by recurrent cause-and-effect relationships that affect the entire earth system.This 'global' feature of the Anthropocene would not only require localsocietal responses and interventions but also supranational ones, which areoblivious to borders, sensitive to cause-and-effect relationships, and thattranscend brief timescales to extend well into the future. This is not to saythat the local, because it is not 'international', will become less significant;^"the local dimension is part of the global setting because the Anthropocenechallenges the orthodox view of the global that sees it as relating only to theinternational. Rather, the 'global' nature of the Anthropocene is a contextand a temporal and reciprocal space that includes many geographies, aholistic environment, all governance levels (from the local to the regionalto the international) and all governance actors (state and non-state) nowand in the future.*'

A human focus

With its predominant emphasis on humans and human-induced globalecological change, the Anthropocene neatly brings into focus the centralityof people as the primary cause of the global ecological crisis and, ironically,as the only victims of this crisis that could conceivably do anything aboutit. In doing so, it removes any uncertainty (much of which is being createdby, for example, climate sceptics) that people and their socio-economicactivities are responsible for the ecological disaster. The Anthropocenetherefore re-emphasises the vagaries of anthropocentrism, which isunderstood in the present context as 'the attitude that presents the humanspecies as the centre of the world, enjoying hegemony over other beingsand functioning as masters of a nature which exists to serve its needs'.^^ Bydenoting human beings as a force of nature (as opposed to their being atthe mercy of forces of nature), the Anthropocene identifies people as thecause of the global ecological crisis because humans are considered theprincipal environmental determinants, global scale forcing mechanisms orecological agents.*' Phenomena such as climate change are exemplary ofthe types of anthropogenic ecological changes in the Anthropocene, and

50 Richardson highlights that because of the difficulties humankind faces in cooperatingat a large scale, and because globalisation allows human civilisation to lose sight oflocal environmental constraints, it is necessary to invoke the proximity principle. Thisis an approach that 'asks us to think globally while acting locally when addressing theenvironmental impacts of our decisions'. Richardson, n 46 above.

51 LouisJ Kotzé, Global Environm£ntal Governance, Law and Regulation for the 21st Century(Edward Elgar 2012), 17-19, 187-191.

52 Ewa Domanska, 'Beyond Anthropocentrism in Historical Studies' (2010) 10 Historein 118.53 Chakrabarty, n 7 above, 209.


while considerable doubt has been erased regarding human responsibilityfor these and other global ecological disasters, the Anthropocene nowprovides a conceptual collective that centres responsibility for the crisisand for designing ameliorative interventions solely on people. In doing so,the Anthropocene conveys the human dimension of global environmentalchange and brings it starkly to the fore. This could have profound moralimplications for society, especially insofar as people will now have to questiontheir centrality in the human-environment relationship, the prevailingpredominance of neo-liberal consumerism that is based on the overbearingprominence and false promises of anthropocentrism, and (hopefully) thepotential and reformative possibilities that other environmental ethics suchas ecocentrism may hold, as the counterpoint of anthropocentrism.^* At thesame time, we will have to rethink the moral values that our environmentallaws and governance constructs are based on and the moral values they seekto espouse. While environmental law and governance could assist in instillinga changed morality, they have to themselves become morally reorientatedin order to do so.

The Anthropocene also heralds the 'public death of the modernunderstanding of Nature';^^ it signals 'the demise of particular imaginingsof Nature, of a set of symbolic inscriptions that inferred a singularNature, at once external and internal to humans and human life'.*® Alsoexpressed as the 'end of nature', such a vision affects the social contextthat determines the relationship between people and the environment,or the human-environment interface. To be sure, a changed vision of theenvironment (nature) in the context of the Anthropocene heralds many'Earth-shaking historical moments that have sequentially redefined therelationship between humans and the rest of nature'.^' Together with achanging understanding of the environment, people will have to rethinktheir own place in the Anthropocene and their relationship with and in theenvironment. In legal terms, the human-environment interface is mediatedor regulated by environmental law and other social institutions such asenvironmental governance through which societal order and commonobjectives are achieved. If the Anthropocene heralds the public birth of anew understanding of the human-environment interface, there would also be

54 If ecocentrism were to become more prominent as a result, the shift in an ethicalparadigm could eventually be facilitated through the social institutional structuresof global environmental law and governance, but only if these structures themselvesbecome more ecocentric.

55 Jamie Lorimer, 'Multinatural Geographies for the Anthropocene' [2011] Progress inHuman Geography 1, 14.

56 Swyngedouw, n 25 above, 71.57 Robin and Steffen, n 21 above, 1710.


a need to rethink the law-governance-environment relationship; to questionthe continued dominance of people, the state and their interests in thisrelationship; and to rethink the impoverished rhetoric of anthropocentrism,which has been used hitherto to understand and justify unimaginative andineffective socio-institutional intervention strategies.

Rocking the sustainability boat

Following from the last point, we could expect the Anthropocene manifestlyto alter society's view of sustainability (or sustainable development) in thecontext of the human-environment interface.'** Sustainability has been atthe centre of the environmental law, policy and governance architecturefor the greater part of the 20th century, and in many ways it has beenand continues to function as the guiding principle for all socio-legaland political interventions and reforms that seek to govern the human-environment interface. A generous interpretation of the concept suggeststhat sustainability does not aim for a 'singular "steady state", but ratherthe best possible dynamic for dwelling in the world taking into accountthe needs of economy, society and environment'.^^ Herein, however, liesthe greatest political fallacy of sustainability, namely its disingenuousnessand its complacent promise of sufficient resources in a time of globalecological crisis and resource scarcity, which it promotes through deepsocially entrenched rhetoric and (corporate and state) practices. The earthcan possibly sustain a small numher of people in some parts of the worldfor a short span of time, but it cannot extend this sustenance to an ever-growing population all over the world until the proverbial end of time.Another fallacy of sustainability is that it is based on false assumptions. Oneof these is that it accepts as correct the fact that humans are capable ofassuming how much ecological capital is needed to satisfy socio-economicdemands of present and, more worryingly, future generations. Anotheris that sustainability assumes that the earth and its systems are in a steadystate and are generally stable.®" The very nature of the Anthropocene,however, suggests that the earth and its systems are highly unpredictable,uncertain and erratic. In doing so, the Anthropocene exposes sustainabledevelopment for the fraud that it is, including its naive fallacies andinappropriateness in times of unpredictable socio-ecological upheaval.

58 David Griggs et al, 'Sustainable Development Goals for People and Planet' (2013) 495Nature 305.

59 Robin and Steffen, n 21 above, 1965.60 Robin K Craig and Melinda H Benson, 'Replacing Sustainability' (2013) Akron Law

Review 841-880.


The Anthropocene instead demands from society acting through its

social institutions, not to continue to be 'blinded by ideological palliatives

such as "sustainable development" that help us rationalize our continuing

encroachments upon the planet'.*"' What would be necessary is a paradigm

shift in either discarding or reimaging sustainability as the orthodox and

hitherto failing fulcrum of global environmental law and governance.*"'̂ A

new vision of sustainability in the Anthropocene, or a possible substitute, is

needed, which could arguably have a profound effect on our perceptions

and design of global environmental law and governance. At the same time

a re-envisioned and redesigned global environmental law and governance

effort may be able better to achieve the objectives of a 'different' (possibly

a strong as opposed to a weak) sustainability paradigm.*"^

Uncertainty and complexities

The Anthropocene is a relatively young epoch.**"* While we are generally

better acquainted with the history of earlier epochs, the Anthropocene has

just begun, thus leaving us without the wisdom of hindsight:

'by almost any measure, the effects of the human perturbation will

continue for centuries and millennia... [T] he long term extent of this

"built-in" future change is currently unknowable, as it largely depends

on the interplay of feedback effects that will either amplify or diminish

the effects of anthropogenic change.'^^

But because the Anthropocene has barely begun, we are unable to base presen

and future interventions on reliable predications from our past experiences

in the Anthropocene (our only experience is based on the relative harmony

ofthe Holocene) .''*' It might very well be the case that our current governance

61 Richardson, n 46 above.62 Robinson, n 14 above, 181.63 Beyerlin and Marauhn argue that from an ethical perspective, sustainable development 'is

by its very essence an anthropocentric concept', which, in this weak guise, entrenches dieimpoverished sustained human development rhetoric. Ulrich Beyerlin and Thilo Marauhn,Intemational Envinmmmtal Law (Hart 2011 ), 77. Yet, it is possible to view sustainability throughan ecological lens, which would transform it to strong sustainability. Some commentators,stich as Bosselmann, favour the latter because in their view, strong sustainability acknowledgesand realises the ecological core of sustainable development: ' [t]here is only ecologicalsustainable development or no sustainable development at all.' Klaus Bosselmann, ThePrindple of Sustainability: Transforming Law and Govemance (Ashgate 2008), 23.

64 Although it has existed for several centuries now, when considered against the largergeological time scale, it is still very young.

65 Zalasiewicz et al, n 3 above, 2230.66 William Boyd, Douglas A Kysar and Jeffrey J Rachlinski, 'Law, Environment, and the

"Non-dismal" Social Sciences' (2012) University of Colorado Law School Legal StudiesResearch Paper Series: Working Paper 12-01, 28, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1991258 accessed 13 August 2012.

t

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and law arrangements will not be able to halt ecological change to allowthe environment naturally to adapt to this change through evolutionaryprocesses. Part of this inability could be ascribed to law and governance'sdifficulty to keep pace with increasingly rapid global environmental change.''^Glearly, present and future uncertainty and unpredictability are fundamentalfeatures of the Anthropocene, where they do not only relate to the scope andseverity of environmental impacts, but they also have temporal dimensions.This uncertainty is exacerbated by the fact that the earth and its systems haveproven to be much less structured, ordered, regulated and in a steady statethan we have hitherto assumed, or blindly believed.''** It is an unpredictableand complex system with diverse externalities that are shrouded in muchuncertainty and it renders an informed, consistent and effective regulatoryresponse very difficult, or even impossible.^^ It stands to reason that: '[a]sthe defining characteristic of the cause and effect underlying ecologicalinjury, the ecosystem's dynamic complexity supplies the context for anyregime of law that seeks to govern human activity that transforms the naturalenvironment.'™ Unfortunately, uncertainty usually has the frustrating effectthat it prevents strong, responsive and comprehensive social institutionsfrom coming about and affecting the changes they were designed to achieve.While scientific uncertainty has always bedevilled the achievement of properenvironmental outcomes through social institutions such as environmentallaw and governance, this is set to worsen considerably in the future. In this waythe pressures on and expectations of our social institutions of environmentallaw and governance, as interventions to live with and in the Anthropocene,will increase exponentially as they will now have to deal with considerablymore uncertainty while attempting to mediate the human-environmentinterface in a non-linear, unpredictable and unstructured reality. In addition,because ecosystems are dynamic in space and time, global environmentallaw and governance, which themselves have limited planning horizons, willhave to reconcile the spatial and temporal scales of a continuously changingenvironment with the short-spanned spatial and temporal scales of people.'^

67 Lazarus, n 35 above, 11.68 Robin and Steffen, n 21 above, 1710.69 It is now accepted that: 'The complexity of the Earth System is associated with its

countless interacting processes, at many scales and levels of system organization.Importandy, these interactions mean that changes rarely occur in linear andincremental ways. Instead, the dominant behaviour when the various systems onEarth undergo change is for it to happen in a non-linear way, driven by feedbacksthat either dampen change (negative feedbacks) or reinforce it (positive feedbacks).'UNEP, n 32 above, 196.

70 Lazarus, n 35 above, 15.71 Ibid 8.


Global environmental law and governance: the status quo

To know if and to what extent global environmental law and governancewould play a mediating role and better accommodate the problems ofthe Anthropocene requires us to determine what the status quo of globalenvironmental law and governance is in mediating the human-environmentinterface. Simplistically viewed, law and governance are social institutions''^that humans have designed to regulate society, human behaviour andhuman interactions inter se and between people and non-human objects.^'Richardson'* states: '[l]aw is a tool that helps direct humans to behave inways they otherwise would not, if left to their own devices. It works to modifyaspects of the human environment in order to modify human behaviour.'Law is therefore an institution and normative social intervention thatseeks to change human behaviour; it is considered a solution to diversesocial problems,'^ and one of the primary modes of or vehicles for socialregulation.™ To fulfil its regulative functions, law is based on an ideologythat prescribes what is acceptable and not acceptable, what type of behaviourmust be rewarded, and what type of behaviour must be punished to avoidfuture repetition.

Governance, like law, is focused on the broadly defined commoninterests of society where ' [c] ommon interest is not merely an aggregationof particular interests. It is formed at the intersection between the ideal

72 'Institutions' are understood here in terms of Young's broad description: 'Institutions...are sets of rules of the game or codes of conduct that serve to define social practices,assign roles to the participants in these practices, and guide the interactions amongoccupants of these roles... all institutions are social artefacts created by human beings -consciously or unconsciously - to cope with problems of coordination and cooperationthat arise as a result of interdependencies among the activities of distinct individualsor social groups.' Oran R Young, International Governance: Protecting the Environment in aStateless Soäety (Cornell University Press 1994), 3.

73 Kotzé, n 51 above, 51-99, 150-184. While the object of law is human behaviour, lawis not exclusively concerned onlyvmh human behaviour; it is also concerned with theobjects of human behaviour and the results or effects of human behaviour on animateand inanimate objects. In other words, law could be seen as mediating the interactionsvdthin society and between society and non-human objects. Nathan Pelletier, 'OfLaws and Limits: An Ecological Economic Perspective on Redressing the Failure ofContemporary Global Environmental Governance' (2010) 20 Global EnvironmentalChange 220, 221.

74 Richardson, n 46 above.75 Alan Hunt, 'Legal Governance and Social Relations: Empowering Agents and the

Limits of Law' in Neil Michael Mac, Neil Sargent and Peter Swan (eds). Law, Regulationand Governance (Oxford University Press 2002), 56.

76 Neil Walker and Gráinne De Burea, 'Reconceiving Law and New Governance' (2007)13 Colum J Eur L 519, 522. Bronwen Morgan and Karen Yeung, An Introduction to Lawand Regulation: Text and Materials (Cambridge University Press 2007), 5.


and the real, as society responds to its current and potential situation... Itis an idea of society's enlightened self-interest formed in society's publicmind'.' ' Governance is also centrally concerned with human agency inthe institutional context, which means that it has to do with the ability ofpeople to choose and to make decisions and to impose these decisions onthemselves and other people by means of a normative process of rule setting,rule interpretation, rule application and rule enforcement.™ Governanceis about people steering or piloting activities or behaviour and having theability to steer and pilot their own and other human activities and behaviourwith the purpose of achieving some goal or other (often a common goal). Inother words, governance is about people 'acting more or less deliberately in afairly durable concert for the attainment of a considered complex of ends','^especially insofar as it embodies 'the purposeful generation of influence onthe behaviour of actors to collectively improve sub-optimal outcomes'.^" Thisgoal or complex of ends has also been described as the 'overall process ofregulating and ordering issues of public interest'.**'

In the environmental context, law and governance seek to regulate thehuman-environment interface and the effects of human activities on theenvironment as a common area of public interest or concern; they are'institutional filters mediating between human actions and biophysicalprocesses'.^- Put differently, environmental law and governance are classicsocio-institutional phenomena through which we regulate the activities ofpeople and the effects of these activities on the environment,^^ and they areconstructs that would seek to mediate the human-environment interface,also in the Anthropocene.

77 Philip Allot, 'The Goncept of International Law' in Michael Byers (ed), The Role of Lawin International Politics: Essays in International Relations and International Law (Oxford

University Press 2000), 73.78 Anne Mette Kjaer, Governance (Polity Press 2004), 10.79 Herman Finer, Theory and Practice of Modern Government (Rev ed, Henry Holt 1949), 4.80 Thomas Gehring, Dynamic International Regimes: Institutions for International

Environmental Governance (Peter Lang 1994), 481.81 Anne Peters, 'Global Gonstitutionalism in a Nutshell' in Klaus Dicke et al (eds),

Weltinnenrecht: Liber amicorumjost Delbrück (Duncker & Humblot 2005), 537.82 Matthew J Kotchen and Oran R Young, 'Meeting the Ghallenges of the Anthropocene:

Towards a Science of Goupled Human-biophysical Systems' (2007) 17 GlobalEnvironmental Ghange 149, 150.

83 Or as Nagan and Otvos state: ' [t] he law is meant to respond to the flow of problemsthat emerge from social process.' Winston P Nagan and Judit K Otvos, 'Legal Theoryand the Anthropocene Ghallenge: The Implications of Law, Science, and Policy forWeapons of Mass Destruction and Glimate Ghange - the Expanding and GonstrainingBoundaries of Legal Space and Time and the Ghallenge of the Anthropocene', http://works.bepress.com/cgi/viewcontent.cgi?article=1001&context=winston_nagan accessed6 August 2012.


Environmental governance in the global context manifests as globalenvironmental governance, which could be described as a normativeinstitutional regulatory intervention and social construct that ispredominantly based on law and that aims to influence how people interactwith the global environment. Global environmental governance entailsa pluralistic, dynamic, multilevel, multi-actor response and process ofchange, which pragmatically aims to change human behaviour vis-à-vis theglobal environment, and idealistically to optimise environmental benefitsand use, while at the same time seeking to protect and preserve sufficientenvironmental capital for present and future generations."* In this respectglobal environmental law is a critical component of global environmentalgovernance. It plays a constitutive, legitimising, regulative and steering rolein, of and through global environmental governance. It resolves conflictsin, of and through global environmental governance, and provides thejuridical architecture of global environmental governance and the rulesthat determine who must govern, what to govern and how to govern.While scholarship on the conceptual field and the legal taxonomy of globalenvironmental law are underdeveloped, it is generally seen as includinga variety of coexisting and mutually reinforcing (mostly) state and to alesser extent, non-state laws that seek to mediate the human-environmentinterface.^' It includes national environmental laws of states; the collectionof multijurisdictional, inter-national environmental laws between states; andsupranational (including regional and international) environmental lawsbeyond states that are made, interpreted, implemented, adjudicated andenforced by a variety of state and non-state actors variously situated at multiplelevels of governance in the global context. With their focus on addressingcollective societal problems and their aim of changing human behaviourwith respect to the environment, global environmental law and governanceare prominent social institutional responses that people would use in theirefforts to try and regulate the effects of their anthropogenic impacts andthe corresponding (yet deceivingly delayed and often unobservable) globalecological backlash.

Our current environmental law and governance responses to the globalecological crisis are unfortunately mostly ineffective, as commentators

84 Kotzé, n 51 above, 294-304.85 For some definitions, see Jonathan B Wiener, 'Something Borrowed for Something

Blue: Legal Transplants and the Evolution of Global Environmental Law' (2000/2001)27 Ecology L Q 1295; Yang and Percival, n 18 above, 615; David M Ong, 'From"International" to 'Transnational" Environmental Law? A Legal Assessment of theContribution of the "Equator Principles" to International Environmental Law' (2010)79 NordJ Int'l L 35-74; Jonathan M Verschuuren, 'Global Environmental Law' (2012)17 Tilburg L Rev 222.

142 JOURNAL OF ENERGY & NATURAL RESOURCES LAW Vol 32 NO 2 2014

have pointed out.̂ ^ One of the reasons for their ineffectiveness is becausethe characteristics of ecological crises tend to overwhelm our institutionalresponses to these crises. The principal problems mostly lie in the discordbetween law and governance (social processes) on the one hand and naturalor ecological processes on the other, as well as the inability of environmentallaw and governance properly to respond to global impacts of highly complexnatural systems of the earth that are being disrupted by an ever-increasingnumber of people. Eor example, there are challenges related to causalityin the earth's systems, where decisions must be made now to avoid orameliorate future problems;^' ecological demise is irreversible and socio-legalinstitutions cannot replace lost ecological resources; the earth and its systemsare themselves highly complex and there is no easy way to accommodate thiscomplexity in the socio-legal institutional response; and the North-Southdivide raises legal and governance issues of equity and justice in relationto the equal distribution of environmental benefits and impacts and theresponsibility for addressing these impacts.̂ **

In addition to these, there is a range of other challenges and deficienciesrelative to global environmental law and governance that have beenextensively documented in the literature.*® For example, states and theorganisations they act through (such as the United Nations EnvironmentProgramme (UNEP) and other intergovernmental organisations) remain thepredominant role players in global environmental governance, and they aremainly responsible for the creation and enforcement of global environmentallaw. Beyerlin and Marauhn^" argue that states will remain the primary actorsin global environmental law and governance for several reasons:

86 Biermann et al state that: ' [i] t is apparent that the institutions, organizations andmechanisms by which humans currently govern their relationship with the naturalenvironment and global biochemical systems are not only insufficient - they are alsoinadequately understood.' Biermann et al, n 16 above, 202.

87 As Dalby states: '[t] he effect of one [environmental] change often interacts with anotherenvironmental factor in a non-linear way which will produce surprises in future. Wesimply do not know where the critical thresholds are'; and later in the same article,' [m]any of humanity's changes to the biosphere have yet to show dramatic manifestations,but they are coming as a consequence of past human activities'. Dalby, n 5 above, 157,160.

88 Steffen et al, n 29 above, 856.89 See, eg, Bradnee W Chambers and Jessica F Green (eds). Reforming International

Environmental Governance: From Institutional Limits to Innovative Reforms (United NationsUniversity Press 2005); Frank Biermann and Steffen Bauer (eds), A World EnvironmentOrganization: Solution or Threat for Effective International Environmental Govemance?(Ashgate 2005); Colin I Bradford and Johannes F Linn (eds). Global GovemanceReform: Breaking the Stalemate (Brookings Institution Press 2007); Daniel C Esty,'Toward Optimal Environmental Governance' (1999) 74 NYU L Rev 1495; and morerecently, Kanie Norichika et al, 'A Charter Moment: Restructuring Governance forSustainability' (2012) 32 Public Administration and Development 292.

90 Beyerlin and Marauhn, n 63 above, 247-248.

GLOBAI. ENVIRONMENTAL LAW AND GOVERNANCE IN THE ANTHROPOCENE 143

'Eirstly, states enjoy a comprehensive legitimacy as actors in publicinternational law. Secondly, states still bear primary responsibility alsoas addressees of those norms and - insofar as the behaviour of private[non-state] actors is concerned - they remain the primary implementingagents of such rules. Thirdly, comprehensive democratic legitimacyand accountability can be best safeguarded within states. Thus, stateslegitimately are and remain the primary authors of internationalenvironmental law.'

While we must accept that the demise of the state and the orthodoxWestphalian concept of the all-powerful state are highly unlikely in thenear future, the reluctance of states to include non-state actors in globalenvironmental regulatory efforts is worrying. Non-state actors such as non-governmental organisations (NGOs), while playing an increasingly importantrole, remain on the outer perimeters of global environmental governance andthe creation, revision and enforcement of environmental law, and there seemsto be some state-led resistance to countenancing more inclusive multi-actorglobal environmental governance. Eurthermore, if global environmentalgovernance remains driven by a UNEP, instead of being guided by a morepowerful organisational unit or specialised agency, then the weakness ofUNEP will remain a difficulty, and the urgency of global environmentalgovernance will remain incidental to other global concerns.^'

It is also worrying that states remain reluctant to endorse a stronger formof sustainability, as the continued failures of global climate negotiationsillustrate. Striving for short-term political and economic benefits at the costof ecological concerns seems the order of the day, and state sovereignty is alltoo frequently invoked as an easy justification for increased socio-economicdevelopment at the expense of the environment. Related to concernsabout the continued predominance of states is the persistent reliance forthe purposes of behavioural change on a silo-based framework of 'hard'law (mostly derived from treaties) instead of deliberately incorporatinginto the more formal regulatory toolkit 'softer' forms of law such as theEquator Principles, the Global Gompact and the ISO 140001 EnvironmentalManagement Syst

91 Speth and Haas, n 15 above, 134-136.92 See www.equator-principles.com; www.unglobalcompact.org; www.isol4000-isol4001-

environmental-management.com (accessed 3 February 2014).


Some considerations for rethinking glohal environmental lawand governance in the Anthropocene

Glearly, environmental law and governance are products of a stable Holocenewhere an understanding of the human-environment interface and theconstructs of environmental law and governance themselves has been lesssophisticated, decidedly localised and manifestly anthropocentric andstate-centric. The new globalised reality of the Anthropocene entails thatenvironmental lawyers will have to revisit these orthodox, and often archaic,social constructs that have been designed as institutional responses to lesscomplicated or complex regulatory issues that existed during the Holoceneepoch, which in turn might require a wholesale review of current regulatoryinterventions leading to proposals to reconceptualise and redesign our lawand governance constructs.^^ What are some of the reformative considerationsthat environmental lawyers could consider when rethinking the place androle of global environmental law and governance in the Anthropocene?

Moving beyond the state, becoming global

The complexities of the Anthropocene require a paradigm shift whencontemplating the role and status of the all-powerful, sovereign Westphalianstate and the global institutions it acts through; the status, role and legitimacyof global non-state actors and global state-sanctioned governance agents; therole of non-state law-like rules; and the global application and enforcement ofstate-based legal rules. Notably, the complex socio-legal, political, economicand ecological realties of the Anthropocene fundamentally militate againstorthodox conceptions of global environmental law and governance thatderive their authority from and steadfastly seek to maintain the primacy ofthe state as the sole actor in and creator of global environmental law andgovernance. The world will thus have to reimagine a new place for the state ina disaggregated, multi-level and multi-polar global environmental governancesetting where global environmental law and governance cannot continue toderive their moral and legal authority solely from traditional manifestations

93 More than a mere redeclaration of existing norms and undertakings will be needed.As Robinson suggests, 'declaring agreed norms is so welcome that it often relieves thesocial pressure to act further promptly and masks a correlative inactivity in actions toperform'. Robinson, n 14 above, 184. What would probably be required is to 'identify,design and... build new principles and mechanisms of law to address the consequencesof globalized interdependence in fields such as environmental protection, food safety,biodiversity conservation, and forest degradation'. Francesca Spagnuolo, 'Diversityand Pluralism in Earth System Governance: Contemplating the Role for GlobalAdministrative Law' (2011) 70 Ecological Economics 1875.


of the Westphalian and all-sovereign state. As Boyd, Kysar and Rachlinski''''recently suggested:

'Under circumstances of deep environmental interconnectivity,the state risks much by choosing to go it alone... The state insteadmight profit by perceiving itself as a subject that stands in relationsof responsibility and dependency with other significant actors on thegeopolitical stage.'

In tandem with a re-visioning of the state, global environmental lawand governance will in all likelihood have to 'move beyond the state'.Gonceptually, this could happen by environmental law and governancebecoming transnational; by more deliberately shifting the loci of powerfrom states to somewhere between state and non-state actors (also referredto as the hybridisation of private-public authority) f'" by disaggregatingand expanding the different levels (local, national, regional andsupranational) where environmental law and governance occur, as itwere; and by expanding and diversifying state and non-state rules relatedto global environmental law and governance. In short, to 'move beyondthe state', global environmental law and governance will have to becomemore multi-levelled, multi-actored and normatively plural, where statesand their governments are only some of the role players and where thefocus is shifting to the important contribution of non-state actors thatoperate on different levels and in other non-coercive ways. In 'becomingglobal' the term 'global' is used as much for its geographical connotationas it is used for conveying the idea that the state is not the sole role playerin global regulation any longer;^^ for referring to the interconnectedeffects of globalised processes as responses to causal and temporalenvironmental problems; for indicating transnationality; and for referringto the disaggregation of global environmental law and governance. Itthus becomes possible to employ the term 'global' to describe a wholerange of multi-level, reciprocal and interconnected environmental issues,governance levels and state and non-state actors and their many rules,which manifest in a multi-level spatial (geographic), temporal and causalsetting that could be described as a complex, intertwined global mass.As one commentator puts it:

94 Boyd, Kysar and Rachlinski, n 66 above, 35.95 See further Manuel Gastells, 'The New Public Sphere: Global Givil Society,

Gommunication Networks, and Global Governance' (2008) March, The Annals of theAmerican Academy 78; Philipp Pattberg and Johannes Stripple, 'Beyond the Publicand Private Divide: Remapping Transnational Glimate Governance in the 21st Gentury'(2008) 8 International Environmental Agreements 367.

96 Heba Shams, 'Law in the Gontext of "Globalisation": a Framework of Analysis' (2001)35 Int'l Law 1589, 1626.


'if we look at how glohalization is actually proceeding and what scholarsof globalization outside of the environmental field are telling us; that is,if we accept as fact the fragmented, plural nature of the internationallegal and political order, we must look to new and different (andmuch messier) architectures for coordinating efforts across differentjurisdictions. In doing so, we would need to move away from thesimplified notion of the state as a unitary actor... towards a morenuanced appreciation for the ways in which global projects are made,inserted into, and reworked.'^'

While 'moving beyond the state' should include a more centralised andpowerful global environmental governance organisation (for example, astrengthened UNEP), the disaggregated effects of globalisation on globalenvironmental law and governance are likely to emphasise the need for suchan organisation to be supported by deliberately inviting and more closelyinvolving global non-state actors in the global environmental regulatoryeffort. In terms of their normafive character, global environmental law andgovernance 'beyond the state' could, for example, consist of norms made bystate and non-state actors with the explicit and implicit purpose of influencinghuman behaviour towards a holistically conceived global environment. Theserules would aim to change human behaviour in the global arena and the effectof human behaviour on the entire global environment, which is holisticallyconstrued to be an intransigent, interconnected and interacting whole, or a'mulfilinear, multi-loop interactive feedback system'.̂ * As determined by thiscontext, environmental law specifically will have to become global horizontally(between the different local, nadonal, regional and supranational levels),vertically (ranging between nations inter se and between regions inter se); interms of its sources of authority, to the extent that it is both private and publicdue to the numerous state and non-state actors involved; and with respect tothe global nature of a holistic environment.

It is also entirely likely that the need for reflexivity will increase as globalenvironmental governance further disaggregates into multi-level and multi-actor constellations that must mediate the human-environment interfacein the Anthropocene. Reflexive law and governance are less coercive,prescriptive, and 'regulatory' than repressive and regulatory or coercive law:

'The legal control of society under a regime of reflexive rationality becomesindirect as the legal system attempts only to set out the organizational andprocedural basis of future action rather than to dictate or plan the outcomeof future action. The role of law, therefore, is no longer the aggressively

97 Boyd, n 8 above, 466.98 Lynton K Caldwell, 'Is World Law an Emerging Reality? Environmental Law in a

Transnational World' (1999) 10 ColoJ Int'l Envtl L & Pol'y 227, 228.


instrumental one typified by command-and-control regulation; rather,law is limited to providing forms of organization, procedures andcompetencies for relationships within and between organizations.'^^

The implication of reflexivity for global environmental law and governanceis that 'law should stand further back and specify the procedures to allowinterested participants to work out the content of rules and policies';""*consequently, law assumes a less prominent coercive or direct regulatory role.Reflexive law only 'aims at using legal procedures to establish a communicativestrategy for the disclosure of information and for the provision of greateraccountability'"" to the extent that one might be able to speak of deliberativegovernance. ""2 in this way a more reflexive global environmental law andgovernance regime could be more sensitive and responsive to the manydiverse challenges and uncertainties ofthe Anthropocene.

A holistic response

It was argued above that the central tenet of the Anthropocene is one thatbears on holism and integration. Notably, 'in the Anthropocene no singleenvironmental concern matters. It's the cumulative totalities that are beginningto interact in all sorts of unpredictable synergies that matters [sic]. In that sensetiie environment as a simple category of concern has also been transcended'.'"^In other words, because we are not only provoking changes in isolated systemsany longer, the Anthropocene now requires a view of the environment in itsmost comprehensive totality (the global earth system) instead of dividing itinto separate issue areas, such as biodiversity conservation, climate change,fi-esh water protection and so forth.'"^ As Caldwell"*^ states:

99 David J Schneider, 'Radical or Rational? Reflexive Law as Res Novo in the CanadianEnvironmental Regulatory Regime' in Neil Michael Mac, Neil Sargent and Peter Swan(eds). Law, Regulation and Govemance (Oxford University Press 2002), 101.

100 Peter Swan, 'Democratic Environmental Governance and Environmental Justice' inNeil Michael Mac, Neil Sargent and Peter Swan (eds). Law, Regulation and Governance(Oxford University Press 2002), 122.

101 Ibidi24.102 Ibid 129. Examples of reflexive environmental law in the global context are voluntary

environmental management systems (EMS) such as ISO 14001, and its Europeanequivalent, the Eco-management and Audit System (EMAS). For a comprehensivetreatment of reflexive law and self-regulation in the environmental context, see GüntherTetibner, Lindsay Farmer and Decían Murphy (eds), Environmental Law and EcolopcalResponsibility: The Concept and Pradice ofEcobgical Self-Organization (John Wiley 1994).

103 Ursula Oswald, Hans Gunter Brauch and Simon Dalby, 'Linking Anthropocene, HUGEand HESP: Fourth Phase of Environmental Security Research' in Hans G Brauch et al(eds), Eaáng Global Environmental Change: Environmental, Human, Energy, Food Health,and Water Security Concepts (Springer 2009), 1277, 1279.

104 Bo Kjellén, 'The Anthropocene Era and the Evolution of International Law andGovernance' (2011) 41 Environmental Policy and Law 247, 248.

105 Caldwell, n 98 above, 229.


'At the end of the 20th century, the world is in unprecedented transition.The adaptability of present institutions to emerging challenges is beingwidely questioned. In a broadly encompassing context, these areasof challenge - social, ethical, economic, and technological - haveenvironmental implications. However, this assertion is credible only ifthe environment is understood in its holistic dimensions - comprisingcomplex dynamic interrelationships from cosmic to microcosmic,extending beyond ordinary perceived human experience, yetnevertheless interacting with humanity, and thus shaping the parametersof life on Earth.'

It is in this context that the Anthropocene seeks to replace a fragmentedand singular vision of the environment with an integrated and holistic visionof the earth system, which includes 'the whole earth [and its] landscapes,not species alone, not hot spots, however endangered, not locales, but theentire earth'.""'

While earth system governance, for example, has been developed as aconceptual strategy or vision to facilitate some aspects of global environmentalgovernance in the Anthropocene, the role of environmental law in thisparadigm is less clear. Biermann et aP"' define earth system governance as:

'the interrelated and increasingly integrated system of formal andinformal rules, rule-making systems and actor-networks at all levels ofhuman society... that are set up to steer societies towards preventing,mitigating and adapting to global and local environmental change and,in particular, earth system transformation, within the normative contextof sustainable development.'

Thus described, earth systems governance is clearly meant to be a holisticand integrated response to the complex problems in the Anthropocene.Environmental law, understood in its widest sense, arguably provides someof the informal and formal rules for this integrated system and, in keepingwith the holistic foundation of earth system governance, environmentallaw will have deliberately to discard the silo-based approach that it has longfollowed. While separate issues such as biodiversity conservation and waterpollution will remain important, environmental law will have to become moregeneral, it will have to take a broader view and it must adjust to accommodatebroader notions of the environment.^"* This could occur, for example, byincorporating broader and more inclusive definitions of the environment

106 Woodwell, n 1 above, 434.107 Biermann et al, n 16 above, 202.108 Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory

Dimensions (Oxford University Press 2010), 6.


in environmental legislation, treaties and covenants, or by developinggeneral framework environmental laws situated nationally, regionally andinternationally that contain generic and broadly applicable environmentalprinciples, liability provisions and provisions requiring ecological duties ofcare across all environmental media, issue areas and concerns.'"^

As an integral part of global environmental governance, all efforts toreform environmental law must recognise that:

'We are presented not with discrete natural environments connectedonly by certain global common substrates, nor with discrete politicalcommunities connected only by certain channels of internationalcommerce and environmental impact. Rather, we are presented with a"complicated tissue of events," both biophysical and sociolegal, in whicheven conventionally domestic environmental problems must be viewedas global in scope and in which politics and law accordingly must adaptto the challenge of ineradicable interdependence among states.'""

The challenge of hohsm that the Anthropocene presents to globalenvironmental law and governance will require lawyers to reconsider avariety of issues that currently prevent a holistic response and it will furtherrequire solutions to remedy these. These issues include, for example,competing developmental objectives in environmental law and policy andcompeting international legal regimes (such as trade vis-à-vis environment) ;geographical fragmentation and segmentation of the physical environment(or habitat fragmentation); the lack of a progressive and influential centralworld environmental authority; and divisions caused by state sovereignty.

A responsive and adaptive approach

The temporal challenges and the (often diffuse) nature of ecological disastersin the Anthropocene evidenced by climate change, for example, will requireglobal environmental law and governance to be increasingly dynamic,sensitive and welcoming to change, and responsive themselves to changingexternal conditions while they provide opportunities for adaptation. Indoing so, they 'cannot dispel the dynamic iind complex nature of the Earth'secosystem... [or] ignore the closely related spatial and temporal featuresof ecological injury'.'" Moreover, whereas the predominant traditionalfocus of global environmental law and governance has been on the extent

109 An example is South Africa's National Environmental Management Act 107 of 1998and possibly even the Earth Charter.

110 Kysar Douglas, Regulating from Nowhere: Environmental Law and the Search for Objectivity(Yale University Press 2010), 147.

111 Lazarus, n 35 above, 14.


to which law and governance could change human behaviour vis-à-vis theenvironment (a mitigatory response), a new paradigm in the Anthropocenemight require greater emphasis on the role that law and governance couldplay in helping humans adapt to an environment they are responsible forchanging (an adaptive response). Global environmental law and governancewill thus have to become more flexible, be more adaptive and at the sametime become increasingly focused on adaptation."^

A new ethic and vision of sustainability

Today people have increasingly become disconnected from theenvironment in the prevailing climate of anthropocentrism that underliesa consumer-driven society. It is a society, as Ayestaran"^ suggests, whichuses 'the global (world-technologies) to exploit the real (raw materials,environmental resources) to obtain the virtual (financial speculation)'. Itis in the context of this culture that some argue: '[c]urrent perspectivesand worldviews mentally disconnect human progress and economic growthfrom the biosphere... and the life-supporting environment, if not simplyignored, has become external to society with people and nature treated astwo separate entities.'"* If one accepts as credible that the collapse of anydistinction between humans and nature should force humanity to modifyethical codes or political aspirations,"^ then the Anthropocene will requireof us to revisit the expectations we have in terms of the future relationshipwe will have with the biosphere and of the ethical vision we have of globalenvironmental law and governance that must contribute to make this futurepossible. A réintégration of people into the environment (ie, bringingpeople from 'out there' into the earth system), or reconnecting peoplewith ecological considerations will ultimately require a more ecologicallyorientated regulatory perspective that is grounded on an ecocentric ethicgeared towards the primacy of holistically conceived earth system care inthe Anthropocene.

But a new vision of sustainability will also require new forms of, andattitudes towards, power and authority:

112 Adaptiveness and adaptation should be generously interpreted to include bothadaptation to changing ecological conditions (most usually invoked in theclimate governance context), and 'adaptation to social-ecological change as wellas the process of change and adaptation within governance systems'. Biermann etal, n 16 above, 204.

113 Ayestaran, n 24 above, 146, 153.114 Garl Folke étal, 'Reconnecting to the Biosphere' [2011] Ambio 719, 720.115 Dalby,n5above, 160.


'self-regulation of humankind as a whole can only come aboutthrough... institutional change patterning human action globallyin ways that will create a good form of power. It is to live as a citizen

seeking to make humankind's form of power wholly satisfy our moraland ethical responsibilities to far future generations, the globally pooror vulnerable, and to non-human beings or entities with natural value.Certainly, this is not such a citizen's only goal, but it is the primary goalwe all ought to have, against which all other goals should be checkedfor soundness and against which any trade-offs should be justified andexplained carefully.'"^

This ecocentric and inclusive ethic is one that takes up responsibility for thevarious different forms of power (political, legal and economic, for example)that 'global citizens' would use every day that inevitably affect other peopleand the environment. It also requires of us to keep in check these forms ofpower so that we do no moral wrong to present and future generations andto non-human entities in the earth system with natural value."^ It would beup to global environmental law and governance, among other institutions,to instil this ecocentric ethic; to be themselves based on such an ethic; and tocreate 'good forms of power' that global citizens would be able to exercise.

A new ethic in and through global environmental law and governancewill probably have to occur in tandem with a re-visioning of sustainability,which, as was argued above, has been the bedrock of global environmentalregulation for over half a century."^ Sustainable development, at leastin its present form, simply will not do. The Anthropocene neither allowsdevelopmental issues to be characterised as being economic, social and/orenvironmental (the World Summit on Sustainable Development approach),nor does it tolerate decisions with a potential ecological impact to be madebased on the impoverished 'environment versus development' rhetoric(the 1992 United Nations Conference on Environment and Developmentapproach)."-' In fact, these orthodox approaches of weak sustainability canremain tenable only if they are cast in ecological language that strives forthe equal maintenance of ecological, social and economic capital in a worldwhere development is subject to ecological integrity; the Anthropocene

116 Jeremy D Bendik-Keymer, 'How goodness itself must change in the new world of theAnthropocene: Moral identity and the form of power', www.cwru.edu/artsci/phil/How%20goodness%20must%20change.pdf accessed 6 August 2012.

117 IM.118 Robinson also suggests that ' [e]mergent conditions in the Anthropocene require

rethinking the various definitions of sustainabihty'. Robinson, n 14 above, 185.119 /fed 185-186.


calls for a stronger form of sustainability that 'requires that both naturaland human-made capital have to be maintained'.'^" More generally, strongsustainability in the Anthropocene will also require of global environmentallaw and governance to extend their focus from the traditional three pillars,and revise their tendency to emphasise socio-ecological considerations, tobroader, incidental, but no less important issues such as ecological integrity,human security, peace and political and social stability and resilience.'^' Eorexample, the international biodiversity regime should continue to focus onbiodiversity conservation issues, but to be more suitable for the purpose oftheAnthropocene, should more comprehensively and directly address issues ofthe earth system's biological integrity, peace, security, stability and resiliencein the context of global biodiversity loss and species extinction. In this way,the Anthropocene is likely to revitalise marginalised pleas for strongerforms of sustainability, which are cast in ecological terms and which are tobe instilled in society by means of global environmental law and governancearrangements, which are oriented towards an ecocentric ethic.'^^

Yet, simply pleading for a universally applicable ecocentric-orientated visionof strong sustainability is easier said than done, and it would probably beunfair towards developing countries in the global South. Our approach to theexploitation/economic growth equation will have to be much more nuancedand it must consider that the global South will in all likelihood approach thisequation very differently than countries situated in the global North. Despitethe wishes of many for sustainability, the reality is that resources are typicallyused and exploited as a country moves its way up from being a resources-basedeconomy, such as those found in developing countries, to a services-basedeconomy, such as those found in developed countries.'^'^ Most countries in theglobal South hover at the bottom of economic development scales, and, moreimportantly, poverty (including monetary and social poverty and poverty ofopportunity, among others) is the main concern on the continent, resultingin the bulk of regulatory arrangements focusing on poverty alleviationthrough measures to promote socio-economic growth. As Du Plessis states:'the state of being poor and its inescapable impact on people's health, well-being and the surrounding environment are inevitably part ofthe regulatory

120 Ivo Slaus and Garry Jacobs, 'Human Gapital and Sustainability' (2011) 3 Sustainability97; 106.

121 Craig and Benson, n 60 above.122 See generally Klaus Bosselmann, Ökologische Grundrechte: Zum Verhältnis zwischen

individueller Freiheit und Natur (Nomos Verlaggesellschaft 1998); Bosselmann, n 63above.

123 See generally, Bill Hopwood, Mary Mellor and Geoff O'Brien, 'SustainableDevelopment: Mapping different Approaches' (2005) 13 Sustainable Development38-52.


domain established by environmental law in the countries of this region.''^^Major regional and international developmental policies also explicitly seekto steer development in an anthropocentric direction that focuses attentionon global environmental injustices concentrated in the global South. Forexample, the New Partnership for Africa's Development (NEPAD), an AfricanUnion strategic framework for pan-African socio-economic development,seeks 'to address critical challenges facing the continent [including] poverty,development and Africa's marginalisation internationally'.'^^ While 'GlimateGhange and Natural Resource Management' is a thematic objective of NEPAD,activities and plans predominantly focus on environmental protection for thesake of poverty alleviation and socio-economic development.'2*' Therefore,ecocentric limitations to the use of natural resources that would promotesocio-economic growth, could be considered unjust and unfair, not only to theimmediate plight of local disenfranchised communities, but also vis-à-vis theglobal North that actually has the resources to better justify the incorporationof ecocentric approaches to environmental law and governance. Thus, anyeffort to turn towards a more ecocentric approach to sustainability will haveto be sensitive to global environmental justice issues between the North andthe South. This could be done, for example, by rethinking ways to ensuresubstantive and formal equity between the global North and South througha more concerted and dedicated application of the principle of commonbut differentiated responsibilities.'^'

Are there examples that could move towards an ecologicalformulation of sustainability while being sensitive to North-Southglobal environmental justice issues? In their own recent reappraisal ofsustainabihty in the context of the Anthropocene, Graig and Benson'̂ **argue that policy discussions remain framed by the goal of sustainability,despite sustainability not having been able meaningfully to change

124 Anél du Plessis, 'South Africa's Constitutional Environmental Right (Generously)Interpreted: What is in it for Poverty?' (2011) 27(2) South African Journal of HumanRights 279-307 at 280.

125 New Partnership for Africa's Development available at www.nepad.org/about, accessed26 November 2013.

126 For example, a key focus of the 'Environment' sub-programme is to '[p]romote theintegration of environmental issues into poverty reduction strategies'. See http://nepad.org/climatechangeandsustainabledevelopment/climatechange/about, accessed26 November 2013. Likewise, this human development approach is also followed bythe Millennium Development Goals. See www.un.org/millenniumgoals/environ.shtmlaccessed 26 November 2013.

127 Philippe CuUet, 'Common but Differentiated Responsibilities' in Malgosia Fitzmaurice,David M Ong and Panos Merkouris (eds), Research Handbook on InternationalEnvironmental Law (Edward Elgar 2010), 161-181. See also Principle 7 of the RioDeclaration, 1992.

128 Craig and Benson, n 60 above.


human behaviour that has led to the Anthropocene. Also, 'the continuedinvocation of sustainability in international talks, development goals,and other policy discussions ignores the emerging scientific realities ofthe Anthropocene'.'^' The authors emphasise that the world needs newpolicy directions, orientations and regulatory perspectives and goals thatbetter accommodate unprecedented complexity, profound uncertaintyand a discomforting loss of stationarity.'^" They offer 'resilience thinking'as replacement for sustainability as a new metric to formulate ecologicalgovernance objectives. Resilience thinking copes with constant changeand thus rejects status-quo-based thinking; it allows for values to dictatedecision; it allows for self-organisation; and it is sensitive to adaptivecapacity and flexibility, among others. A more concrete example ofsustainability reimagined in the Anthropocene comes from Griggs etal'^' who believe that 'definitions of sustainable development must berevised to include the security of people and the planet'. They proposeto revise the Brundtland definition of sustainable development to'development that meets the needs of the present while safeguardingEarth's life-support system, on which the welfare of current and futuregenerations depends'.'^^ This definition is notably more ecocentricallyorientated (strong as opposed to weak) through its explicit inclusionof care for the holistically conceived earth system as a concern that hasecological value in its own right and as a paramount precondition forthe survival of humans, now and in future. In short, thinking aboutsustainability around the issues of security and resilience could behelpful to accommodate a more ecocentric approach as well as beingmore sensitive to issues of global environmental injustice.

While these are examples of theoretical possibilities to reimaginesustainability, it would be difficult to tell who should be the principalchange agent(s) to instil an ecocentric ethic and to facilitate this processof re-envisioning. It would be even more difficult to describe the process bymeans of which it could or should occur. However, while these are some ofthe issues that will have to be fleshed out in future, the Anthropocene nowprovides the point of departure for debates that must seek to determinethe new vision and its change agent(s). Concomitantly, the Anthropocenealso has the possibility to inform the design and operation of any newarchitecture for global environmental law and governance in a newsustainability paradigm.

129 Ibid.130 Ibid.131 Griggs et al, n 58 above, 305.132


Conclusion

The 'signals of change''^^ in the Anthropocene are such that they re-emphasisewith great urgency what we have known (but often ignored or neglected)for the greater part of the 21st century: the future of life on earth dependson modes of immediate preventive, mitigatory and adaptive interventionthat are so comprehensive in geographical reach, normative diversity andtemporal scale, that they would at least provide marginal future options forlife to continue on earth. It may therefore not be going too far to suggest thatthe human-environment interface is the most decisive issue of our time. Keyto this issue is the question of what the arrival of the Anthropocene meansfor environmental law and governance. Today the idea of the Anthropoceneepoch is yet to capture the attention of the mainstream academic and scholarlycommunity in law and governance. However, even if the Anthropocene isnever forinally accepted as being a term of reference for geology, law andgovernance, and even if it is to be buried in the big academic graveyard, it isclear that the term and the concept it invokes provide a powerful metaphor foran important normative and analytical engagement with questions of humanresponsibility for radical global environmental crises; a responsibility that hasnow become two-pronged to the extent that it requires responsibility for theentire earth system and a responsibility to take action to maintain this system.

Humanity needs to understand that as a collective force it simply weighs onearth and its systems. This realisation has been gradual and incoherent withsome sceptics remaining doubtful as to the actual extent of anthropogenicimpacts on earth. Yet, as this article has argued, during earlier geologicalepochs such as the Holocene, people were far less central and influentialdeterminants in the biosphere. While people have always been at the mercy ofthe environment and natural forces, we have now 'graduated from adaptingto our environment to making it adapt to us'.'^* It is in this continuouslydeepening period of global ecological decay characterised by anthropogenicecological disruptions and changes to earth and its systems that we will haveto rethink our own place in nature and the manner in which we will respondto the ecological, socio-political, legal and economic crises that await us. Ifscientific predictions hold true, these crises will only deepen as the humanimpact on the earth and its systems further intensifies in the Anthropocene.'''^

How must we respond to these crises? In the Anthropocene we have todeal with 'a new situation and it calls for new perspectives and paradigms

133 Slaughter, n 23 above, 121.134 James Syvitski, 'Anthropocene: An Epoch of our Making' (2012) 78 Global Ghange 15.135 Indeed, 'the Anthropocene represents a new phase in the history of both humankind

and of the Earth, when natural forces and human forces became intertwined, so thatthe fate of one determines the fate of the other'. Zalasiewicz et al, n 3 above, 2231.


on human development and progress - reconnecting to the biosphere andbecoming active stewards of the Earth as a whole'.'"' With the former comesthe realisation that global environmental law and governance also need tomature to be truly focused on planetary and collective developments ratherthan a series of silo-based, reactionary, anthropocentric compromises. Assuch, the idea and logic behind the Anthropocene epoch has the potentialto have significant impacts on the global socio-legal and political agenda.

Additionally, the term Anthropocene has the potential, irrespective ofits precise formal status as a term of art, to serve as a powerful discursivetool in the production of a new and ground-breaking juridical imaginaryand to capture important ground in related public debates concerningthe response of global environmental law and governance to humanenvironmental behaviour. Central to the implications of the Anthropoceneis the need to place a powerful new emphasis upon reimagined forms ofhuman environmental responsibility and responsiveness. The arguments forcomprehensive reform, in other words, require a strong theoretical basis (aradical theory of human responsibility for the Anthropocene) as well as clearsuggestions for redesigning environmental law and governance processes,practises, priorities and values.

Reimagining the legal and governance constructs that people havedesigned to mediate the human-environment interface in the Anthropocenemight arguably be tantamount to a second Copernican revolution thatwill have to resituate people and their law and governance constructs inthe human-environment interface. In the words of Ayestaran: '[t]he firstCopernican revolution placed our planet in its correct astrophysical context.A second Copernican revolution is underway that places humanity in itsappropriate environmental nexus.''^'

While we will not live to tell the outcome of this second Copernicanrevolution, our children and their children will. This entails a tremendousmoral obligation that makes it incumbent on us to lay the foundations for moreeffective socio-institutional interventions that must ultimately seek to mediatemore successfully the human-environment interface in the Anthropocene.

136 Folkeetal,n 114 above, 719.137 Ayestaran, n 24 above, 146, 154.

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Rethinking Global Environmental Law and Governance in the Anthropocene

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