Enhancing International Rule of Law through a Global Pact for the Environment
Central to the states’ survival in the face of the accelerating climate crisis will be their enhanced commitment and decisive actions to protect the environment that is necessary to preserve life on the planet Earth. Such protection can be in the form of a variety of actions taken, including first and foremost the negotiation of the Global Pact for the Environment (GPE) in 2022.
Renegotiating and adopting the Global Pact for the Environment in 2022 presents a unique opportunity for states to strengthen the Rule of Law in international environmental affairs.
In an earlier article, we made the argument that the social construct of state-sovereignty is rapidly changing due to the distinctive challenges and dangers of the Anthropocene Age. Specifically, given the increasing ravages of climate change, states will have to acknowledge their explicit duty to preserve nature if they wish to continue as functional political and legal entities in the near future. Some states have already been ravaged by civil disturbances, and even civil war, due in part to global climate change.[i] Already there are nation states literally disappearing beneath the waves in the Indian and Pacific Oceans, and this is simply the beginning.
The Rule of Law and State Sovereignty
Central to the states’ survival in the face of the accelerating climate crisis will be their enhanced commitment and decisive actions to protect and preserve the environmental that makes life on Earth possible. Such protection can be in the form of a variety of actions taken, including first and foremost the negotiation of the Global Pact for the Environment in 2022, as well as the recognition of the right of everyone to a healthy environment in international law.[ii]Also, states must work quickly to end carbon-based economies and switching over to reusable energy sources; plus, the education and empowerment of women needs to be accelerated so that they can take a more active role in family plan education and local or state planning to preserve the environment.
Finally, one of the most important steps that governments can take, if they are dedicated to the rule of law, is to reconfigure the relationship between the executive, legislative and judicial powers. More precisely, the powers of the domestic judiciary must be expanded immediately through legislative action or custom to include original jurisdiction over environmental issues as a precondition of a state legitimate sovereignty.
Specifically, based on existing legal principles and doctrine, the international norms, principles and treaties dealing with the protection of the environment must become self-executing within the sovereign jurisdiction of each state. These include the internationally recognized legal norms of “No Harm”, “Prevention”, “Polluter Pays”, and the “Precautionary Principle.”[iii]
In view of the unprecedent global environmental emergency that we are facing, such increased and self-executing powers of the courts are based on traditional legal concepts including: a) “Necessitas,” or the absolute necessity now of legally protecting and preserving what is left of the natural systems that support and sustain life on this planet; b) Lex Naturalis, or the Law of Nature which the English philosopher Thomas Hobbes describes as the basic duty of the state to insure the self-preservation of nature and the nation; c) and Jus Publicum, which is defined as “legal rights enjoyed by all citizens.”[iv] In the past, it has been used in reference to the right of the public to access shorelines, water, air and public lands; in view of the global climate crisis, these legal principles and doctrines must be expanded to include placing the right of everyone, everywhere, to a healthy environment under the rule of law. So, we briefly review each of these below.
- Necessitas or Necessity, as expressed in the legal axiom: Necessitas est lex temporis et naturae prima. To paraphrase Hale, “Necessity is the first law of time and nature—1 Hale P.C. 54 – and specifically used here to mean preserving through what it absolutely necessary for the self–preservation of the global environment and living beings that includes present and pending humanity.[v]
- Lex Naturalis, which Hobbes recognized when he first distinguished in his writings between the rights of nature, or natural rights, which he defined as jus naturale, and the law of nature or lex naturalis which he called the Law of Nature;[vi] In turn, such a Lex Naturalis, or the Law of Nature is based on the necessity that all living beings have a basic right to self-preservation; as such, the Lex Naturalis of self-preservation is presented here as a necessary general principle of international environmental law that is, in turn, inherent in the Rule of Law. Another name for such a Law of Nature is or could be a Global Pact for the Environment.
- Jus Publicum, or Public Law, especially the international environmental law of public trusts: Justinian was the first in the civil law tradition to define a public fiduciary duty, or a “public trust,” consistent with the Law of Nations, as described in his Institutes, and elsewhere in his Corpus Civilis.[vii] Due to this legal innovation of Justinian, the doctrine of public trusts as Res Communis including the seas as well as “water, waterways and shorelines” — have been legally recognized in a variety of domestic jurisdictions around the world since ancient times.”[viii]
These three concepts, taken together, provide a historic jurisdictional basis for the legal recognition by states and courts of a “general obligation by all states” concerning the “essential interests” of “whole of humankind” in preserving the ecological balance of the Earth; as such, these “essential interests” concerning the self-preservation of the “ecological balance” necessary to sustain and support all of life on Earth should also be recognized in the pending Global Pact for the Environment as a general obligation of states and domestic courts to observe and enforce.
In particular, the human right of current and future generations to a healthy and inhabitable natural environment must be recognized as a fundamental issue of intergenerational equity and fairness that simultaneously guides current state policies in urgent attempts to preserve what is left of natural ecologies; such a human right must also be actionable in international, regional, national courts as part of the Jus Publicum, meaning rights belonging to everyone, including the present and future generations.[ix]This right is also found in the Justinian doctrine of Public trusts, which prohibits the private use or destruction of resources that belong to everyone.
The present generation simply doesn’t have the right to destroy the last great ecosystems on Earth for our own private use; this is not a new idea since the courts in Germany and the Netherlands recently cited intergenerational equity as a key consideration in their decisions favorable to the plaintiffs and to the global environment. Finally, the human right to a clean and healthy environment can be found in the more recent legal doctrine of the Common Heritage of Humanity that has been recently and eloquently argued as part of a legal condominium that requires the safeguarding of those systems that are absolutely necessary to sustain all of life, including our own, on Earth.[x]
The Global Pact – Now or Never
Let us be clear. Neither states nor their governments will survive long in their current configuration if their peoples suffer catastrophic loss of food, habitats and the ecologies that support and sustain them, beginning with all the great coastal cities around the globe, now threatened by rising sea levels.
So, the time to act is now; decisive action can no longer be postponed or even delayed. Fortunately, decisive action is still possible, especially if we assert, strengthen and enforce the international, indeed global, rule of law by acting swiftly to negotiate and adopt the Global Pact for the Environment.
[i] See, for example: Parenti, C. (2011). Tropic of chaos: Climate change and the new geography of violence. Bold Type Books; Medeiros, E. (2019). The Most Critical Resource: How Climate Change Fuels the Crisis in Syria and the Implications for the World at Large; Welzer, H. (2015). Climate Wars: what people will be killed for in the 21st century. John Wiley & Sons.
[ii] In this regard, it might be useful in terms of facilitating its passage that, at the diplomatic drafting meetings for the Global Pact for the Environment now scheduled for the spring of 2022, a more versatile draft of the Pact be presented that contains possible new phrasing and powers. It would invite greater participation and ownership by state diplomatic delegations that will then become co-authors, advocates and defenders of the final text. Currently, the draft seems like a “thumbs up” or “thumbs down” proposition, which is certainly not the intent of the original drafters.
[iii] See: Dupuy, P. M., & Viñuales, J. E. (2018). International environmental law. Cambridge University Press.
[iv] See my paper, Promoting the Rule of Law in the Global Environment: A Legal Precis for the March Nairobi Conference, the second Substantive Session on GPE, UNEP, Nairobi 2019. Also see: https://definitions.uslegal.com/j/jus-publicum/
[v] To paraphrase Hale, “Necessity is the first law of time and nature—1 Hale P.C. 54. See: Sir Matthew Hale (1800), The History of the Pleas of the Crown: In Two Volumes (Vol. 2). Payne. “Necessity” is, of course, a two edged sword to argue in law. So, the argument here for the international legal recognition of the a priori necessity of the global ecology to sustaining and perpetuating life on Earth as a biological fact is not the same legal argument concerning the legal “necessity,” say, to obey or justify absolute monarchy, which is among the first time it seems to appear in the Anglo-American legal tradition; for An in depth discussion of this latter issue see the excellent volume by Glenn Burgess (1997) Absolute Monarchy and the Stuart Constitution, Yale University Press, New Haven and London; see also the book review entitled: Davis, J. C. (1997). “GLEN BURGESS, Absolute Monarchy and the Stuart Constitution” (Book Review). Parliamentary History, 16(2), 234.
[vi] Thomas Hobbes, See: The English Works of Thomas Hobbes of Malmesbury; Now First Collected and Edited by Sir William Molesworth, Bart., (London: Bohn, 1839–45). 11 volumes. Reprint London, 1939-–; reprint: Aalen, 1966 at: Hobbes, T. (1839). The collected works of Thomas Hobbes. See, in particular, Leviathan, Chapter XIV and II. De Corpore Politico, or the Elements of Law. Hobbes is referring, of course, to natural law; since this terms carries multiple meanings, we will be referring to it as the Law of Nature, and using the two terms interchangeably, to signify the a priori necessity of legally recognizing the rights of nature to self-preservation as a necessary precondition to recognizing the rights of human beings to a healthy environment—as argued here, both are necessary to our self-preservation.
[vii] The origins of the public trust can be traced back to Roman law, and to a famous maxim in the Corpus Iuris Civilis of Emperor Justinian I. (533 AD), based in turn on the earlier writings of a learned jurist, Aelius Marcianus (c. 220 AD): “So surely by the law of nature, the atmosphere, watercourses, the sea and hence the seashores, are common to all. See: English translations by T.C. Sanders, The Institutes of Justinian (London: Longmans Green, 4th edn. 1903), p. 90; and C.H. Monro, The Digest of Justinian vol. 1 (Cambridge: Cambridge University Press, 1904), at 39-40. Quoted in: Sand, P. H. (2014). The rise of public trusteeship in international environmental law. Envtl. Pol’y & L., 44, 210. Finally, see: Boudreau, T. E. (2012). The Modern Law of Nations: Jus Gentium and the Role of Roman Jurisprudence in Shaping the Post World War II International Legal Order. Dig.: Nat’l Italian Am. B. Ass’n LJ, 20, 1.
[viii] Ibid., Andrei. Also see: The Trail Smelter Case (United States v. Canada) (1938 and 1941) 3 R.I.A.A. 1905.
[ix] See: Boudreau, T. (2016). Paradigms Lost and Found: The Emergent International Legal Order. J. Juris, 30, 65.
[x] See: Magalhães, P., Steffen, W., & Bosselmann, K. (Eds.). (2016). The safe operating space treaty: A new approach to managing our use of the earth system. Cambridge Scholars Publishing.