International law and the anthropocene

Can international law find a new, holistic, way to approach environmental issues through Earth Systems Science?

Image by Global Water Forum, Sourced: Flickr CC

Tim Stephens is one of 13 University of Sydney academics to be awarded a 2014 Australian Research Council (ARC) Future Fellowship. In this guest post he explains his research project on ‘International Law and the Anthropocene’.

Earth scientists describe the current geological epoch as the ‘Anthropocene’, which acknowledges the reality that virtually every component of the Earth’s environment has felt the influence of humans.

If the scale of our tampering with our planet appears almost too great to fathom, then the idea that international norms could be capable of moderating human influence on the global environment also seems to be beyond our imagining. Is international law really up to the task of maintaining a safe operating space for humanity in the twenty first century?

Over the last century international law has attempted to address almost every area of global significance, from armed conflict, to international trade, to environmental protection, and as a result it has been cleaved into a range of specific fields. International environmental law is one such specialised area.

Since international environmental law emerged it has been consolidated rapidly, with major impetus given by global summits in the 1970s and 1990s. And it has notched up a number of important successes in addressing damaging activities such as stopping almost all oil pollution of the marine environment and preventing the release of ozone depleting substances.

However, as is the case for environmental management within territorial borders, international environmental law has tended to focus on specific problems, rather than promoting environmental management in a systemic and holistic way. And this is a major problem in the anthropocene, which challenges the international community to regulate human activities that are transforming environmental spheres in a proactive and systematic way.

An example of a systemic blind spot is seen in climate change regime. While trying to maintain a habitable climate, by preventing dangerous concentrations of CO2 and other greenhouse gases building up in the atmosphere, climate treaties actually promote another equally serous CO2 problem by encouraging the oceans to be used as a carbon sink. This can help keep the atmosphere cool, but drawing down greenhouse gases in the marine environment will mean that it will become toxic for many marine organisms, and could completely disrupt the oceanic food chain.

This is just one of many illustrations where international law falls short of providing a systemic and holistic approach to a vital Earth system – the carbon cycle. Such limitations are a product of many factors, the dominant being the embedded cultural assumption that environmental issues are akin to other policy problems, solvable by discrete, technical interventions that otherwise maintain the status quo. It is rooted in the Enlightenment view that human society is detached from, rather than part of, the natural world.

Despite considerable examination of alternative ways to conceptualising humanity’s place in the natural world, there are few exceptions to the usual political approaches nationally and internationally. One important but tentative example is the ‘ecosystems approach’, referred to in multiple environmental treaties from the 1980s onwards, which encourages states to manage living and non-living components within a biogeographical area defined by reference to ecosystemic characteristics.

Emphasising the contemporary importance of Earth System Science (ESS), in 2010 the Australian Academy of Science adopted the ‘Australian Earth System Science Strategy’, explaining that:

“ESS is concerned with the planet as a whole. It focuses on the Earth as a single, complex dynamic system in which humans are active agents. It considers diverse time scales, from when humans were an insignificant part of the Earth system, through to the Anthropocene, and into the future. ESS focuses on the interface between the human and biophysical parts of the Earth system, a domain that requires a new range of approaches at diverse spatial and temporal scales.”

But while Earth systems science has been embraced by the natural sciences, it has yet to inform international environmental law-making in a meaningful way. What is needed, and needed urgently, is better knowledge of how international environmental law – the central instrument for global environmental governance – can meet the many challenges that humanity will face in the Anthropocene. Earth System Science may hold a part of the answer.

Tim Stephens is Professor of International Law and Australian Research Council Future Fellow at the University of Sydney. He is President of the Australian and New Zealand Society of International Law. Tim teaches and researches in public international law, with his published work focussing on the international law of the sea, international environmental law and international dispute settlement. His major works include The International Law of the Sea (Hart, 2nd edition, 2016), with Donald R Rothwell, and International Courts and Environmental Protection (Cambridge University Press, 2009). His ARC Future Fellowship research project is examining the implications of the Anthropocene for international law. Tim has a PhD in law from the University of Sydney, an M.Phil in geography from the University of Cambridge, and a BA and LLB (both with Honours) from the University of Sydney. He is admitted as a legal practitioner in the Supreme Court of New South Wales.