Examining the Transformational Power of Environmental Law

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By Professor Karen Hulme, Essex Law School

I wanted to share some highlights of last week’s IUCN Third International Environmental Law Conference in Oslo. The title of the four-day conference was ‘The Transformative Power of Law: Addressing Global Environmental Challenges’.

The backdrop of the conference was not lost on the 400+ participants (with more joining online), with the ongoing destruction being inflicted on Ukraine, devastating hurricanes in central and northern America, recent unprecedented heatwaves in Europe and massive floods in Pakistan. Thus, we heard about the importance of the rule of environmental law in the face of such unprecedented and monumental threats to human and environmental security – including the triple threat of climate change, the fastest rate of biodiversity loss on record, and escalating global pollution levels.

Yet, there was also time to celebrate what is, indeed, a monumental anniversary year in environmental circles, with the recently celebrated 50th anniversary of the 1972 Stockholm Declaration on the Human Environment, and its successor landmark instruments (1982 World Charter for Nature, 1992 Rio Earth Summit, 2002 Johannesburg World Summit on Sustainable Development) plus anniversaries of the three 1992 treaties on Climate Change, Biological Diversity and Desertification; and the 1982 Law of the Sea Convention. Finally, in my own area, it is also 45 years since the adoption of the 1977 Additional Protocols to the Geneva Conventions which included provisions for the first time on the protection of the environment in armed conflict. 

One of the best Plenary sessions in my opinion was that composed of the Supreme Court Justices from around the world. They were tasked with answering the conference’s themed question in relation to the ‘transformative power’ of the judiciary. We all know that members of the judiciary have a very difficult job to do at times, and their bravery in the face of Government repression often draws little attention or goes largely unnoticed. While several justices argued that their role on the bench was a rather restrained one, due to their own particular legal systems, others demonstrated a more creative, transformational approach to their role in interpreting the law. Often the need for such creativity stems from Government inaction on existing promises. Fewer are more legendary than WCEL’s former Chair, Dr. Parvez Hassan, who in 1994 argued the landmark public interest litigation case of Shehla Zia vs. WAPDA in the Pakistan Supreme Court, citing similar rulings in the Indian Supreme Court, to expand the human right to life to also include the right to a healthy environment.

Among the many excellent panellist contributions though were the words of Dr. Emmanuel Ugirashebuja, Minister of Justice and Attorney General of the Republic of Rwanda and former President of the East African Court of Justice. He spoke of the wider ripple effects that just initiating a legal case can create. While in some situations, he said, simply the commencement of a legal action might force the Government or other public actor to drop a planned environmentally-damaging project, or at least to mitigate its potential environmental impacts. Yet, Dr. Ugirashebuja also said that such litigation may also give the judges a vital opportunity they can then use to advance legal interpretations to better protect the environment in the future.

The final day also saw an interesting panel covering a wide range of new and emerging norms of international environmental law. Dr. Nick Bryner reminded us that since Covid, many states had rolled back on their environmental promises and reduced their mitigation efforts, arguing that other emergencies now needed to take precedence. Note the timely World Bank Report on just this topic in relation to escalating poverty levels. But, he said, under the norm of non-regression, removing environmental protections should only be done where the science has changed, thus where such measures are no longer scientifically necessary – not due to political expediency. Clearly, with the triple planetary threats facing the planet, now is also not the time to be regressing on environmental protection.

Professor Nicholas Robinson suggested a principle of resilience, notably of building resilience into environmental impact assessments to ensure that planned projects are resilient to such threats as climate change. And finally, Professor Michel Prieur’s words focused on the lack of legal indicators in relation to implementation and compliance. The Sustainable Development Goals, he said, contained only indicators of a scientific or economic nature, and thus legal indicators are much needed to ensure states fulfil their legal obligations.

Prof. Hulme, Chair of the WCEL Specialist Group on Environmental Security and Conflict Law, presenting at the IUCN 3rd International Environmental Law Conference in Oslo (Oct. 2022)

There were plenty more plenary sessions as well as some 34 parallel sessions to choose from covering plastic pollution, nature-based solutions, rights of nature, wildlife crimes, BBNJ and sea-bed mining developments, energy governance, reversing the biodiversity decline, the rights of future generations, and on armed conflict and ecocide. Consequently, the discussion was very rich and varied. There were many mentions of the need to achieve the goal to be nature positive by 2030, as well as for a circular economy, including in relation to UNEA’s plastics pollution treaty currently being drafted, and the need to change consumption and production patterns to meet the biodiversity post-2020 framework due to be discussed (and hopefully adopted) at December’s CBD COP 15.

With July’s adoption by the General Assembly of a resolution recognising the right to a clean, healthy and sustainable environment, Professor David Boyd, the UN Special Rapporteur on the right to a healthy environment advocated the need for the right now to be enshrined in all legal instruments, such as the new plastics treaty, the Post-2020 Biodiversity Framework and in a Protocol to the European Convention on Human Rights, amongst others.

The IUCN World Commission on Environmental Law (WCEL) website will showcase many of these presentations shortly, and for environmental lawyers please note that the WCEL is the legal branch of the International Union of Nature Conservation (IUCN), and you can become a member here – membership is free. There are many specialist groups of WCEL which you may like to join also, including environmental security and conflict law, climate change, biodiversity, oceans law, ethics, water and wetlands, soils, as well as the early career group, and two task forces on the plastics treaty and rights of nature.

IUCN WCEL 2022 Oslo International Environmental Law Conference

Prof. Karen Hulme has particular interests in environmental law, the laws of armed conflict and environmental rights. She is also the Chair of the WCEL Specialist Group on Environmental Security and Conflict Law.

Giving Nature A Voice

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Faith In Nature has become the world’s first company to officially appoint Nature to its Board of Directors. The precedent-setting move gives Nature a vote on key business decisions with Essex Law School academic and Co-Founder of Lawyers for Nature Brontie Ansell joining the Board as the first representative for Nature.

In a fundamental change to their corporate governance structure and in a first for the business world, the decision from the natural hair care and soap company gives the natural world a voice and a vote on the future of the business.

The company has formally amended its constitution, with the result that Nature is now represented on the Board by an individual who is legally bound to speak on behalf of the natural world. The nominated proxy will speak and vote on behalf of Nature, much as a guardian acts on behalf of a child in the courts of law.

This decision extends a growing legal precedent around environmental personhood – the attribution of legal rights to non-human entities – and presents a fresh opportunity for businesses wanting to reduce their environmental impact.

Simeon Rose, Faith In Nature’s Creative Director and driver of the initiative, said: “We’re delighted to be the first to do this but we don’t want to be the last. Our hope is that other businesses who take their responsibility to the natural world seriously will follow suit – and we’re really happy to share details of how and why we did this. We’ve always wanted Nature to be at the heart of what we do and this felt like this is the next serious step we could take to make that a reality. This is much more than spin: by changing our governance structure we are making sure we’re legally accountable and that what’s good for Nature informs our strategy.”

Rose’s vision has been realised by lawyers that helped pioneer the concept of environmental personhood, Paul Powlesland and Brontie from Lawyers for Nature, and Grant Wilson from Earth Law Centre. Earlier this year, the Earth Law Centre assisted with the high profile legal case to attribute legal rights to Nature in Panama. The legal process with Faith In Nature also received significant support and expertise from a pro bono team of corporate experts at international law firm Shearman & Sterling LLP.

In what will be a rotating position, Brontie will be the first board representative for Nature. Brontie is Director and Co-Founder of Lawyers for Nature and is also a Senior Lecturer in Essex Law School at the University of Essex.

Brontie said: “This will hopefully spark a big change in how the business world perceives and acts on its responsibility to the natural world. For too long Nature has been seen purely as an expendable resource: this kind of thinking has led us to the brink of ecological collapse. It can and must change.”

Grant Wilson at the Earth Law Centre, added: “The movement for the Rights of Nature is picking up momentum across the world, but businesses have been slow to recognise that they are a crucial part of this story. Making Nature a Director is a tangible step that businesses can take to ensure that their operations take into account the rights and needs of the natural world.”

The board representative will work in concert with a committee of environmental experts, to make Nature’s case on all major board decisions. Faith In Nature has decided to open-source the legal process to allow other companies to follow its lead.

This story was first published on the University of Essex’s news webpages and is reproduced on the ELR Blog with permission and thanks.

Rethinking International Law from Amazonian Onto-epistemologies: the Kukama People and the Amazonian Waterway Project

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Cristina Blanco, PhD candidate at the School of Law, University of Essex, was awarded the PhD Fieldwork Grant 2021-22 by the Socio-Legal Studies Association (SLSA). Cristina’s research focuses on the interactions between Amazonian onto-epistemologies, international law (IL) and human rights in the context of an investment project.

In the Amazonian rivers, water flow varies significantly with the seasons. During the dry season, low water levels hinder the navigation of large vessels. Although the peoples inhabiting the Amazon rainforest have travelled and traded using these rivers over centuries, the fluctuating navigability prevents uninterrupted large-scale transport. This is the main reason why the Peruvian state is promoting the “Amazonian Waterway”, an infrastructure project that consists of removing sediments from the bottom of the main Amazonian rivers.

The Amazonian Waterway is far from being an isolated project. It rather reflects the neoliberal developmental paradigm favoured by IL (Escobar 2011, Pahuja 2011, Eslava 2019). In addition to generating serious socio-environmental impacts, the project hides a profound conflict of ways of understanding the world.

The Amazonian indigenous peoples conceive the territory as a space inhabited by human and non-human entities, a conception that challenges the very definition of what we call “nature”. The sharp distinction between humans and non-humans that governs the Western world and underlies modern (international) law is not necessarily present in Amazonian cosmologies (Viveiros de Castro 2004, De la Cadena 2010, Descola 2013).

For the Kukama-Kukamiria people, for instance, the territory is inhabited by different “categories of people” living in a “plurality of worlds” (Tello 2014). The river is an (aquatic) world in itself, inhabited by beings endowed with their own subjectivity and intentionality (Rivas 2011). Therefore, thinking from the Amazon means not only standing in a geographically different place but also thinking onto-epistemically different.

In this scenario, the main problem the research seeks to explore is that IL does not take this onto-epistemic diversity seriously. Instead, it frames the issue as a cultural question of relevance to indigenous collective rights. While such rights play an indispensable role in protecting indigenous worldviews, they are insufficient to prevent their elimination.

This, in turn, has important implications in areas as critical as the Amazon. Trying to make sense of IL from the Amazon, this case study provides the opportunity to explore how to move from the impact of IL in the Amazon (historically aimed at its internationalisation) to enable the influence of Amazonian epistemologies on IL. This exercise of “Amazonising IL” enables us to reveal the epistemological richness of the Amazonian cosmovision and explore its potential for rethinking IL.

The research has three main methodological components. Substantively, it is a socio-legal research that takes as the unit of analysis the interactions between IL, human rights and the Amazonian worldview relevant to the case study. In analytical terms, it has an interdisciplinary approach theoretically informed by Amazonian studies and critical approaches to IL. As for the empirical component, it uses a case study method based on qualitative analysis of documentary and visual information, as well as in-depth semi-structured interviews.

The fieldwork was possible thanks to the valuable support of the SLSA.

Bibliographic references

De la Cadena, M. (2010). “Indigenous cosmopolitics in the Andes: Conceptual reflections beyond “politics”.” Cultural anthropology 25(2): 334-370. https://anthrosource.onlinelibrary.wiley.com/doi/abs/10.1111/j.1548-1360.2010.01061.x

Descola, P. (2013). Beyond nature and culture, University of Chicago Press. https://press.uchicago.edu/ucp/books/book/chicago/B/bo9826233.html

Escobar, A. (2011). Encountering development: The making and unmaking of the Third World, Princeton University Press. https://press.princeton.edu/books/paperback/9780691150451/encountering-development

Eslava, L. (2019). The Developmental State: Independence, Dependency, and the History of the South. In: The Battle for International Law: South-North Perspectives on the Decolonization Era. J. von Bernstorff and P. Dann, Oxford University Press: 71-100. https://global.oup.com/academic/product/the-battle-for-international-law-9780198849636?cc=gb&lang=en&

Pahuja, S. (2011). Decolonising international law: development, economic growth and the politics of universality, Cambridge University Press. https://www.cambridge.org/core/books/decolonising-international-law/7E8B4FB0AAECFD08355914EE41DDB5C7

Rivas Ruiz, R. (2011). Le serpent, mère de l’eau: chamanisme aquatique chez les Cocama-Cocamilla d’Amazonie péruvienne, Paris, EHESS. http://www.sudoc.abes.fr/cbs/xslt/DB=2.1//SRCH?IKT=12&TRM=160329019&COOKIE=U10178,Klecteurweb,D2.1,E192cfbd9-1f1,I250,B341720009+,SY,QDEF,A%5C9008+1,,J,H2-26,,29,,34,,39,,44,,49-50,,53-78,,80-87,NLECTEUR+PSI,R95.151.73.225,FN

Tello, L. (2014). “Ser gente en la Amazonía, fronteras de lo humano: aportes del pueblo kukama.” Amazzonia indigena e pratiche di autorappresentazione. Milano, Franco Angeli: 39-48. https://www.francoangeli.it/Ricerca/scheda_libro.aspx?Id=21593

Viveiros de Castro, E. (2004). Perspectivismo e multinaturalismo en la América indígena. Tierra adentro: territorio indígena y percepción del entorno. A. Surrallés and P. Hierro. Copenhague, IWGIA: 37-82. https://www.iwgia.org/images/publications/0331_tierra_adentro.pdf

New Legal Protections for the Environment in Relation to Armed Conflict

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By Professor Karen Hulme (School of Law, University of Essex) and Elizabeth B. Hessami (Johns Hopkins University)

Nature and conservation are inevitably harmed during armed conflict. The laws of armed conflict do provide some measure of legal protection for nature, but these rules are limited and vague. The recent adoption by the International Law Commission (a legal body within the United Nations) of a set of Draft Principles for environmental protection in relation to armed conflict is to be lauded. This post will briefly examine some of the main additions to the law in this area.

Armed conflict pollutes and destroys the environment, often leaving a permanent scar on the landscape and biodiversity of affected states. The Russian conflict in Ukraine, for example, demonstrates the devastation caused to fauna and flora when states engage in warfare on a massive scale in areas rich in biodiversity. It also witnessed a horrifying few weeks as the world saw what happens when warfare takes place in a nuclear-powered state. Thus, from the destruction of targets in forests or protected areas, to collateral harm caused by oil spills in the marine or desert environment, toxic chemical pollution from abandoned munitions, destruction of agricultural lands, and destruction of wildlife – armed conflict inflicts a multitude of harms on the natural world.

The WCEL Specialist Group on Peace, Security and Conflict has, therefore, been following closely the work of the International Law Commission (ILC) on its programme of work on the Protection of the Environment in relation to Armed Conflict. In May 2022 the ILC adopted the final version of its recommended 27 Draft Principles, sending them to the General Assembly for final consideration before adoption. Many of the Draft Principles are already rooted in international law, while some provide best practice guidance.

The culmination of over ten years work, there is no doubt that the Draft Principles represent a significant moment in the advancement of legal protection of the wartime environment. Before the creation of the Draft Principles, the current ILC Special Rapporteur, Ambassador Marja Lehto, opined that there was no “coherent legal framework for the protection of the environment in relation to armed conflict”. The approval of the ILC mandate by states, therefore, reflected an acceptance that the law in this area was inadequate, ill-defined and outdated. Certainly, there are limited treaty rules protecting the war-torn environment, particularly in civil wars – the most prevalent type of conflict. Thus, the Draft Principles draw together an extensive body of rules covering both international armed conflicts as well as civil wars (non-international armed conflicts) and are addressed to a wide range of non-state actors.

Two key dimensions of the ILC’s analysis warrant fanfare. Innovative was the decision to take a holistic approach, ensuring analysis of the legal protections afforded not just during conflict, but prior to the outbreak of conflict and post-conflict. Methodologically unique, this temporal approach allowed for the second innovative approach, namely a focus beyond the laws of armed conflict. Any area of law today is a complex web of interactions between hitherto distinct areas of law. Throwing off the shackles of a pure laws of armed conflict analysis, the ILC undertook a comprehensive analysis of the issues, drawing from areas such as environmental law, human rights law, arms control and business and human rights obligations. Having said that, it is still less than clear how these other legal regimes apply during the combat phase of conflict.

The Draft Principles are, thus, a blend of treaty law, including the laws of armed conflict, and novel guidance or best practice (known as ‘progressive development’) – which states and other actors are encouraged to follow. For example, Draft Principle 16 reiterates the clearly established treaty rule that pillage of natural resources is prohibited (effectively theft during conflict), and Draft Principle 14 the equally clear application of the foundational laws of armed conflict to the environment, such as the principles of distinction, proportionality and precautions. Novel rules are included on cooperation for post-conflict environmental assessments and remedial measures (DP 24) for example. A key one of which is the obligation for removal of toxic or other hazardous remnants of war (DP 26).

The novel structure has certainly helped the Special Rapporteurs to approach the issues from new angles, highlighting novel issues for consideration. One example being the post-conflict part, which analysed obligations of environmental remediation, liability and cooperation – issues which are generally omitted from legal instruments and are proving rather elusive in the current Russia-Ukraine conflict.

The recent humanitarian crisis created by the Russian invasion of Ukraine, when added to the plethora of other events causing people to flee their homes and lands, such as climate-related events, has pushed the number of IDP’s and Refugees above an estimated 100 million people globally according to UNHCR. Thus, displaced people must be considered during armed conflict, as must the environment that they are inhabiting. Environmental protection of lands housing displaced persons is, therefore, a welcome addition to the Draft Principles, particularly in a world where displacement is increasing at a dramatic pace. Draft Principle 8 on Human Displacement takes a novel look at the issue, recommending that states not only ‘protect the environment where they are located’, but also provide ‘relief and assistance for such persons and local communities’. Importantly, environmental protection also extends to areas of transit.

Draft Principles 10 and 11 on Corporate Due Diligence and Corporate Liability respectively require that states ensure business enterprises ‘exercise due diligence and protect the environment and human health’ in conflict-affected areas. These two provisions are an important addition to the field to deter corporate actors from preying on local populations and natural resources during such turbulent times, and preventing conflict financing through the exploitation and trade in such commodities.

Implementation of the Draft Principles will be the final step with states expected to implement them through domestic law and military manuals. They present a concise statement of law in one document, undoubtedly expanding the law on certain issues. Thus, the Draft Principles will undoubtedly serve as a point of dialogue for states to further the discussion of how to protect the environment during the conflict cycle.

Fernando Bordin wrote “Codification conventions and draft articles completed by the International Law Commission are often – and increasingly – invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’.”

The Draft Principles, therefore, represent, an important opportunity to make a tangible, meaningful difference in the lives and environment of people caught in the crosshairs of conflict.

This article was first published on the website of the International Union for Conservation of Nature (IUCN) and is reproduced on the ELR Blog with permission and thanks. You can read the original piece here.

More about the authors:

Professor Karen Hulme, School of Law, University of Essex, UK, specializes in the legal protection of the environment during armed conflict. She has published on environmental human rights, environmental security, post-conflict obligations, the legality of specific weapons, as well as climate change, biodiversity/nature protection, oceans and protected areas. Karen is Chair of the IUCN WCEL Specialist Group on Environmental Security and Conflict Law.

Elizabeth B. Hessami

Elizabeth B. Hessami, J.D., LL.M. (Environmental Law), is a licensed attorney and Faculty Lecturer of International Environmental Policy and Environmental and Natural Resources Security for Johns Hopkins University. She has also served as a Visiting Attorney for the Environmental Law Institute (remote) for several years.

Affordable, Clean Energy and Climate Action in Sub-Saharan Africa

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How can energy policy measures for realizing the UN Sustainable Development Goals (SDGs) 7 (Affordable and Clean Energy) and 13 (Climate Changes and Its Impact) in sub-Saharan Africa (SSA) be framed toward achieving energy justice?

This position is quite challenging for developing countries that seek to resolve the rising inequality of access to modern and affordable energy systems as stipulated in SDG 7, whilst simultaneously working to meet their international obligations towards the attainment of SDG 13.

Both goals highlight interdependent and conflicting interactions that policymakers should be aware of whilst working to realize them.

Godswill Agbaitoro, Lecturer in Law at the University of Essex, and Kester Oyibo, an Associate at Punuka Attorneys & Solicitors in Lagos (Nigeria), aim to resolve this conflict by proposing some viable measures for a synergy between SDGs 7 and 13.

Their article in The Journal of World Energy Law & Business examines the paradoxical situation faced by countries in the SSA region and argues for a contextualization of the two goals within the energy justice framework.

The proposed approach entails a systematic transition from fossil fuels to low-carbon through socio-economic policies that take into account social injustices and further incorporate sustainable actions such as developing renewable energy technologies, diversification of energy options, energy efficiency, and regional alignments and/or cooperation.

The measures outlined in their article aim to help the SSA region achieve energy justice by 2030.

Essex Law School academic joins the UN’s Harmony with Nature expert network

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Dr. Emily Jones, Senior Lecturer in the School of Law and Human Rights Centre at the University of Essex, became a member of the United Nations Expert Knowledge Network on Harmony with Nature.

Dr. Jones offers below her input on the theme of Earth Jurisprudence.

Earth Jurisprudence is a philosophy of law and human governance that is based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole.

What would the practice of Earth-centered Law look like from an Earth Jurisprudence perspective? How is that different from how Earth-centered Law is generally practiced now? And, what are the benefits of practicing Earth-centered Law from an Earth Jurisprudence perspective?

I am an international lawyer so I will comment mostly from within that field. Right now, I don’t think the law accommodates an Earth jurisprudence approach at all. Even international environmental law, the area of international law that is there to protect the environment, is very anthropocentric. We can see this by looking at the principle of sustainable development.

This is arguably the main overarching principle of international environmental law. This principle broadly notes that development needs must be sustainable for the environment. However, as scholars Usha Natarajan and Kishan Kohdy have noted, the principle is seldom used ‘to call for less development.’ Overall, this principle sets up a system whereby the environment is seen as a resource to be exploited, an object, with humans being the only subjects in this paradigm.

An Earth jurisprudence perspective would challenge that paradigm. We need to move from the current legal position which sees the environment as an exploitable object and start challenging human exceptionalism. Humans are deeply connected to their environments, impacting on and being impacted by them. An Earth jurisprudence perspective will push the law to see those relationships as opposed to always seeing humans as distinct from and superior to their natural environments. This shift will be urgently needed if we are to address the pressing environmental challenges of our times.

What promising approaches would you recommend for achieving the implementation of an Earth-centered worldview for Earth-centered Law?

I find a lot of hope in the emerging recognition of the Rights of Nature. The Rights of Nature are increasingly gaining traction and have now been recognized in over 27 countries on all continents. States are increasingly interested in applying Rights of Nature approaches and so this is something I think we need to push for.

Personally, I am interested in how we can start applying the Rights of Nature in international law. So far, the Rights of Nature have mostly been applied in local contexts e.g. to a river or a specific area where the boundaries are legally defined. However, for the Rights of Nature to have a global impact, they need to be applied globally. After all, ecosystems are not bounded entities but are deeply connected to one another. The UN Harmony with Nature Program has been key in getting the Rights of Nature on the international agenda, but there is a lot more work that still needs to be done.

I also think we need to do a lot more work to continue to amplify the voices of Indigenous peoples. There is so much knowledge that has, for centuries, been ignored and silenced. It can also not be forgotten that, while Indigenous peoples have not been involved in all instances of the recognition of the Rights of Nature, and not all Indigenous peoples support the Rights of Nature, with some questioning the Eurocentrism of the term “rights”, Indigenous worldviews instigated this movement. The Rights of Nature, as noted, represent a key shift in re-thinking out currently anthropocentric legal frames, and it is no coincidence that Indigenous peoples have played such a vital role in this moment thus far.

I also find hope in emerging calls for degrowth approaches. This is one way that we may start to challenge some of the dominant economic models and ways of thinking that justify the exploitation of the environment for so-called economic needs.

What key problems or obstacles do you see as impeding the implementation of an Earth-centered worldview in Earth-centered Law?

I think the key challenge, and one that international environmental law as a field has long faced, is getting things done. International law is based on state consent and states, as we know, are not always very forthcoming when it comes to protecting the environment.

There are many factors at play here, including the state’s need to promote its own economic development but also the pressure put on by powerful corporations. Our global order is so focused on neoliberal economics, on profit and on prioritizing the needs of corporations.

Pushing people to think differently, to think beyond those entrenched systems of thought and power, will be difficult, but I think we will get there – we have to!

What are the top recommendations for priority, near-term action to move Earth-centered Law toward an Earth Jurisprudence approach? What are the specific, longer-term priorities for action?

  • Promote the Rights of Nature globally. This means taking local, regional and international actions to get this on the agenda of lawmakers.
  • Engage the public. For us to move towards a legal system based on Earth jurisprudence, we need to ensure people are on board and are calling for this. The Rights of Nature sounds interesting to people when they first hear it but we need to work harder to explain this to people and why it matters.
  • In terms of getting the Rights of Nature on the international legal agenda, I think the next step will be applying the Rights of Nature to case studies. We have some examples from domestic legal systems where the Rights of Nature have been applied but, for the most part, how we can put this into action in international law remains unclear. We need to start doing that detailed work to show states and other stakeholders exactly how it can be done.

This Q&A is available on the UN’s Harmony with Nature Experts’ Library.

Research Seminar: Posthuman International Law and the Rights of Nature

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Dr. Emily Jones, Senior Lecturer in Law, University of Essex, will lead a seminar on the theme of ‘Posthuman International Law and the Rights of Nature’.

The rights of nature are beginning to be recognised in many countries but have yet to be recognised in international law.

Seeking to challenge and re-think the anthropocentrism that permeates International Environmental Law, this seminar will discuss the synergies between posthuman theory and the legal recognition of the rights of nature, reflecting on the application of both to international law.

The lecture will draw on multiple examples of contexts where nature’s rights have been recognised, including in New Zealand, India, Ecuador, the US, and beyond, to think through the similarities and differences between these contexts and the lessons to be learned.

Reflecting on the possibility of the recognition of the rights of nature in international law, the talk will conclude with an evaluation of the ways that posthuman theory can be applied to help inform the rights of nature project, seeking to ensure that the rights of nature live up to their transformative posthuman potential. 

The seminar is organized by Dr. Matilda Arvidsson, as part of the project ‘AI, the social contract, and democracy’, financed by WASP-HS in collaboration with the international law and environmental law groups at the Department of Law of the University of Gothenburg.

The seminar is open to researchers, students at an advanced level, and the public.

No registration is needed.

International Law and Transformation: Environmental Justice

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Dr. Emily Jones, Senior Lecturer in Law at the University of Essex, alongside her colleague, Dr. Marie Aronsson-Storrier, Lecturer in Law at the University of Reading, has been successfully awarded just under £5000 by the Modern Law Review to run a seminar on the theme of International Law and Transformation: Environmental Justice.

The seminar will be held at the University of Essex in May 2022 and will bring a series of experts together to discuss key issues in environmental law.

It will centre around the ability to seek transformative environmental justice by working with and through international environmental law.

Key topics of discussion will include:

  • the epistemic basis of international environmental law;
  • recent attempts to transform international environmental law such as the ongoing negotiations to create a Global Pact for the Environment or the recent recognition by the Human Rights Council of a human right to a healthy environment; and
  • the application of the law in case studies, including in crises and disasters.

Further details will be announced in due course, so keep an eye on our blog for updates.

The Rule of Law: Driving Water and Climate Inequality?

By Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

The rule of law broadly underlies the idea that ‘no one is above the law’ and that the law is created and applied fairly. The dominant liberal-legal narratives on the rule of law often do not go much beyond this. That is, they do not ascribe content about ‘what that law should be’. Rarely does this narrow ‘rule of law’ speak to any right to have law made to protect the planet and realise the needs of marginalised and deprived peoples. As Baxi puts it, there is no theory of ‘the good’ in the rule of law. There are only minimal procedural ideas that inform the dominant narratives on the rule of law.

The narrow conception of ‘the rule of law’ serves particular ideological ends. The last three decades have shown that the rule of law has been a handmaiden of economic growth and capitalism. Growth that has brought about ecological disorder at a planetary scale. For instance, the rule of law has been used as an ideological concept by international development banks – such as the World Bank and the Asian Development Bank – to pursue legal, policy and technical reforms in the Global South. Such use has transformed the reason for the law, as Krever argues, to promote the mantras of economic efficiency and entrepreneurial activity.  

Water and Climate inequality in Jaipur, India

The rule of law and its relationship with climate change can be illustrated by looking at the Global South’s water and climate conflicts. The city of Jaipur in India is a growing city in the northwestern state of Rajasthan. Like many cities in the Global South, its economy has been urbanising and growing, driven by national and international policies.

However, the urbanisation in Jaipur operates in the context of water and climate stress. In India today, 600 million people face extreme water stress, and about 200,000 die every year due to inadequate access to safe water. Climate change is intrinsically woven into this water crisis, with 44 per cent of the country under various degrees of drought in 2019, increasing the intensity of floods, cyclones and grave climate impacts. Last year, massive farmer protests, which gained worldwide attention, were partly driven by the growing water crisis in rural areas.

The ability of Jaipur to grow in deeply unequal ways has been dependent on taking water from rural communities. This has created further climate vulnerability. A key water source for Jaipur is a reservoir outside the city, connected via a pipeline. The pipeline was built in the 2000s, funded by loans from international development banks. As part of the loan conditions, there were reforms, and state utilities were corporatised. Water utilities were to be reformed to operate under market logic, driven by profit and cost-recovery, rather than treating water as a public good that served a broader social and ecological purpose.

The reforms requested by international development banks transformed how water was used and distributed. The state was now incentivised to take water and re-direct to where it earned the most money. This was for city dwellers and industrial users who paid higher tariffs for water and are more likely to pay for greater use. Poorer rural and urban communities, less financially worthy, lose out. Law and policy were central in this reform and transformation.

Law also played a role in ensuring enough water was available for the city. In earlier years, communities living around the river that now supplied water into the pipeline built small earthen dams to capture water for their use and livelihoods. The judiciary consistently upheld a government ban on these dams. This was because of a perceived threat to the sustainability of the river that was now feeding the city.

Meanwhile, groundwater, a significant water source for many, is critically overexploited in the region. Colonial groundwater laws in India have notoriously allowed landowners the right to exploit as much as they wish. While the state can restrict future exploitation in overexploited blocs, it cannot stop existing users. Participatory governance, so often tied up in neoliberal and the rule of law rhetoric, has also failed to shift power structures that depend on who owns land, has water rights, and thus wealth. The rule of law stays silent on these broader questions.

The impacts on rural communities are devastating. Communities that relied on such water for livelihoods, growing food, and day-to-day use, now see pipelines that take water into the city, passing their houses. When construction of the pipeline began, protesters were shot and killed by police. Today, communities struggle with water scarcity and water quality. As climate change intensifies, the city demands more water, and conflicts ensue. With worsening water conditions in villages, people rely on cities’ employment opportunities to migrate to urban areas.

A combination of legal, policy and technical reforms drives this ‘accumulation by dispossession’. Certain actors have benefited (namely urban industries and wealthier urban residents) and profited from the dispossession of water and other resources from the rich.

A Different Rule of Law

The lessons from this small example are that the rule of law acts as either a silent actor or a handmaiden of social and ecological plunder. The perception of objectivity and neutrality of the law masks its deployment by powerful actors. Thus, we should not assume that the ‘rule of law’ is inherently positive in our efforts to have a fairer and more habitable planet.

At the same time, the rule of law is a concept capable of a radically different meaning. Like many other concepts, such as human rights or good governance, its content can be derived and transformed as a result of concrete social, legal, and political struggle. The rule of law should be rooted in democracy. However, beyond merely the procedural, participatory sense, it can include democratic re-commoning of natural resources like water. Indeed, a ‘bottom up’, ‘ecological’, rule of law, would entail supporting the efforts of peoples’ struggles to define an ecologically and socially just law.

This article was originally published in The Rule of Law and Climate Change Blog, run by UCL Centre for Law and Environment. The post is reproduced on the ELR Blog with permission and thanks.

Sustainability as a Legal Principle: Call for Papers

Third YUFE LAW Meeting, Rijeka, 23-24 June 2022

Photo by Headway

YUFE, the Young Universities for the Future of Europe, is an alliance of ten dynamic, student-centred research-based universities and four non-academic partners from the non-governmental and private sector for an impactful European University. Together, the YUFE partners aim to establish one of the first true European Universities.

Essex is part of the YUFE alliance and is working with its partners to shape the future of European higher education by establishing a European University that’s open to all. 

Continuing its recently established YUFE LAW practice, first at the meeting in Maastricht in January 2020 and subsequently, at the meeting in Bremen in May 2021, applications are invited for the Third YUFE LAW meeting which will be held by the Faculty of Law in Rijeka, Croatia on 23 and 24 June 2022.

Following last year’s model, the discussion concerning the past and future cooperation within the YUFE LAW will be held in parallel with the dissemination of research at the international scientific conference dedicated to the topic of Sustainability as a Legal Principle.

The term “sustainable development” started gaining planetary recognition probably with the 1992 United Nations Conference on Environment and Development and the Earth Plan. At the 2002 World Summit for Sustainable Development in Johannesburg, the need for consistency between the three pillars of sustainable development – being social justice, economic growth, and environmental protection – was stressed as crucial thus paving the way for what we understand as sustainable development nowadays.

The 2030 Agenda for Sustainable Development was adopted by all United Nations Member States in 2015 to ensure common values of peace and prosperity for people and the planet, now and into the future. The core of the Agenda is made of the 17 Sustainable Development Goals (SDGs) which recognize that ending poverty and other deprivations must go hand-in-hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve our oceans and forests.

Understanding sustainable development as a development that meets the needs of the present without compromising the ability of future generations to meet their own needs, its initial meaning has been broadened much beyond environmental protection to encompass virtually all aspects of human activities.

Reaching SGDs can thus be done by means of regulating emissions and promoting developments in renewable energy, developing responsible ICT enabled transformation, reducing waste, or fighting extreme poverty just as by eradicating inequalities, empowering women, ensuring full and productive employment, and decent work for all, or promoting peaceful and inclusive societies, providing access to justice for all and building effective, accountable and inclusive institutions at all levels.

Law is a powerful means in achieving SDGs because the underlying policies may be more efficiently achieved if effectively in-built in legal regulation and not just made part of promotional activities or alike. Reinforcement by means of legal norms seems to be one of the key factors in following through the 2030 Agenda.

Indeed, by now, many preambles, pieces of legislation. statements and declarations contain references to sustainable development, international, European or national. In various areas of law, support or justification for certain regulatory solutions is sought in sustainable development concerns. Such concerns are being more explicitly articulated by the courts and tribunals in different countries.

It is increasingly recognised at many levels that bringing together social, environmental and economic rules and regimes is necessary. Gradually, sustainable development has entered the legal sphere and we may ask ourselves to what extent is sustainability a legal principle.

Against this backdrop, recent years have witnessed also intensified academic discussions on the role of law in sustainable development. For legal researchers, this is a daring endeavour since it entails an interdisciplinary approach including deepening the understanding of the sustainable development and SDGs and attempting to gain a broader understanding and wider picture of the researched issues.

At the same time, legal scholars have a huge responsibility to attempt to discover the old laws which are at odds with the SDGs or to unmask the new ones which use the “greenwashing” practices rather than truly contribute to the achievement of one or more SDGs.

The Third YUFE LAW Research Conference welcomes papers from any area of law, with more or less interdisciplinary threads, which would discuss legal regulation in the context of the SGDs. The conference aims to gather experts in various fields of law affiliated with any of the YUFE partners, to discuss different topics under the umbrella of sustainability as a legal principle.

If you are interested and willing to contribute, please send the title and abstract of your proposed topic (1-2 pages) and your short CV (5 lines on current position and relevant publications) no later than 15 March 2022 to yufe.law@uniri.hr.

The conference will be held in hybrid form. The Faculty of Law in Rijeka will be able to provide lunch and refreshments to all onsite participants, but travel and accommodation should be covered from other sources (e.g., Erasmus+ funding or home institutions).

We look forward to meeting you in Rijeka!