Global Public Law and Climate Change: Evolve or Die

  “The law must be stable but it must not be still.” – Roscoe Pound

 

Introduction

As an outgrowth of the Stockholm Conference that established the United Nations Environmental Programme, the Rio Earth Summit (1992), the Paris Agreement (2015) as well as other legal principles or norms discussed below, Global Public Law (GPL) is the progressive application and enforcement of the rule of law to the entire Earth and its biodiversity. In essence, GPL, in the first instance, is based upon the fundamental necessity for an international legal order that ensures the self-preservation of nations and nature in the Anthropocene. In this regard, the English Philosopher Thomas Hobbes declared that self-preservation is the first Law of Nature, stating:

“A Law of Nature (Lex Naturalis) is a precept or general rule, found out by reason, by which a man is forbidden to do that which is destructive of his life or taketh away the means of preserving the same”.

In short, self-preservation is a fundamental instinct and duty of living sapient beings.  

For Hobbes, such self-preservation includes not only the individual but the necessity of securing the “means of preserving the same.” As living beings, we are inevitably and intimately connected to the natural world – hereafter referred to as nature – ranging from local ecologies to vast global commons necessary for life, as your next breath of air attests. So, the Law of Nature demands that, first and foremost, we preserve life as well as all the ecological means—including the global commons and Earth’s ecologies, that are necessary to support and sustain life on this planet. 

The Problem

Global Climate Change Now Threatens Self-Preservation

The current international legal order is failing to protect us from largely human-caused global climate change, thus threatening our self-preservation as individuals, societies, and as a species. If the law can’t do this, and thus ensure our self-preservation as a nation or as a species, especially as the unpreceded threat of climate change accelerates, then the rule of law has failed. Our future fate may then find us witnessing traffic courts merely passing out convictions for parking or speeding tickets till the last day. 

To avoid this fate, GPL requires the nation-state to ensure the self-preservation of the nation and nature (defined very generally here as the Earth’s rich biodiversity and ecologies) as its primary duty and raison d’être for its legal existence; in short, Lex Naturalis makes all other laws, liberties, and rights possible. If we ignore this fundamental Law of Nature, then we may well perish due to climate change brought on largely by large-scale activities, such as the extraction and burning of fossil fuels, that were legally sanctioned and legitimated in state jurisdictions.

Yet, the rule of law should ensure life, not take it away. So, protecting the self-preservation of the natural world is a basic legal precondition for legitimate state sovereignty; this needs to be quickly asserted and achieved through the rule of law ensured and enforced by the appropriate legislation and judiciary. If the state fails in this supreme duty, then it merely becomes a lawless Leviathan intent on devouring all the planet’s resources and biodiversity, destroying the Earth’s ecologies that all life depends upon to survive in the Anthropocene. 

The Law Evolves, Grows or Dies – Possible Solutions:

• Extending the rule of law to the entire Earth. GPL regards the nations and natural world that sustain and support all of life on the planet as intimately connected living realities on the planet Earth as an indivisible whole, including the global trusts such as the Earth’s atmosphere, as your next breath of air attests.
  
• The changing scope and meaning of state sovereignty. In this regard, it should be obvious – though it is not to statists of simplified realism – that state sovereignty is a social and legal construction and not an absolute and fixed fact of nature, like the Grand Canyon or the craters on the moon.
  
• The accelerating existential threat of climate change. Due to this emerging and accelerating climate emergency, which increasingly represents an existential threat to life on the planet, the basic legitimation of a state’s integral sovereignty must become the self-preservation and perpetuation of the nation or people as well as the essential biological systems that make life possible on Earth.
  
• Judicial and legislative recognition of already existing legal principles and norms. The state, ultimately through its own courts, must legally and politically recognize that it exists only as part of a greater natural world that makes all of life, including human societies, possible. (Courts are the lawful guardians to safeguard the “nation,” which in Latin means “natio” or birth). So, the steps that the courts can take when the appropriate cases present themselves, are to adjudicate and act upon: 

1. 1. the strict enforcement of intergenerational equity;
   2. the recognition of human rights possessed by current generations to a clean and natural environment; 
   3. ensuring the independence of the judiciary; and
   4. enforcement of the general principles of domestic, international, and environmental law.   

• General principles that are necessary for the best practice of the courts. The general principles of law can be found in most legal systems and thus are “common” to humanity. Courts around the world have already adjudicated and used such recognized general principles, including the international ecological ones, that are essential and common to any legal system or jurisdiction that employs best practices within its own judiciary, and thus operates within the global rule of law. In short, the procedural recognition of general principles of law, either domestic or international, is essential for the operation of any legal system and, as such, the proper functioning of the national courts.
  

As the jurist Prof. M.C. Bassiouni [1] astutely notes:

“[The] judicial application of ‘General Principles’ is not a form of judicial legislation if a correct empirical approach is followed in the ascertainment of a given principle and if its judicial application is in accordance with similarly ascertained ‘principles’ of judicial practice. In the final analysis, it is not the theoretical function of ‘General Principles’ that is outcome-determinative, but rather the manner in which ‘General Principles’ are judicially identified and applied”.

In view of this, the courts can, when appropriate, recognize and rigorously enforce, as self-executing, common general principles of domestic and international law, including general principles of environmental law such as the No Harm, Prevention, and the Precautionary Principles of international law. These principles also fulfill the basic legal obligation of states, via the courts, to protect what is necessary for self-preservation and perpetuation of life on this planet. Such judicial enforcement, when necessary and appropriate, is the only legal basis for legitimate state sovereignty in the Anthropocene.

• The law evolves, grows, or dies. We must build and enlarge the meaning and scope of the integrated sovereignty of the state through legislative and judicial rulings to encompass an explicit acknowledgment and obligation to protect the nations’ means of self-preservation found, first and foremost, in the natural world.
  

Conclusion: Now or Never  

Under GPL, the self-preservation of the nations and nature – defined as the Earth’s ecologies that support and sustain life and all biodiversity – is the supreme duty of integrated state sovereignty that is the only basis for legitimate and legal statehood in the Anthropocene.  

Due to the continuing failure of international law to protect the natural world upon which our entire existence as human beings depends, an enlarged and now necessary definition of the international legal order is presented here based on the evolving nature of state sovereignty. 

So, national courts must define and apply, when appropriate, intergenerational equity, human rights to a clean and healthy environment, and the general principles of law mentioned above as an essential aspect of the emerging and evolving best practices of the judiciary. This requires the robust reality of judicial independence to be fully recognized and respected by governments and other political actors. Government and the state must ultimately be based on the rule of law, and not merely upon a privileged economic theory or model that endorses the continuing plundering of the Earth and its ecologies – now under continuous assault by states and private interests legitimated by current law. 

Given this, GPL must extend the rule of law to the entire Earth. This includes the global commons and the Earth’s ecology in cooperation with existing states and courts exercising their fiduciary duties and obligations to ensure the self-preservation of the nation (peoples) and nature so that human beings, as well as all of life, can continue to exist and flourish into the distant future. 

[1] Bassiouni, M. C. (1989). A functional approach to general principles of international law. Mich. J. Int’l L., 11, 768. 

Thomas Boudreau obtained his Ph.D. from the Maxwell School at Syracuse University in 1985.

Dr. Boudreau is the author/editor of three books, Sheathing the Sword (1991) and Universitas (1998), and over a dozen articles. His third book, Advances in International Law and Jurisprudence: Enhancing the Role of the Judiciary in the Rule of Law, is co-edited with Juan Carlos Sainz-Borgo, Dean at the Universidad de Paz in Costa Rica. The book contains contributions from leading international legal scholars, including Judge Garzon, the Spanish magistrate who successfully indicted General Pinochet in the 1990s, and is available on Amazon. 

He is also a Signatory of Jurists call for Action For the adoption of a Global Pact for the Environment.

Dr. Boudreau is currently working on a fourth book, The Law of Nations: A Pluralistic Legal Order in a Violent World, with one chapter, The Earth’s Atmosphere As A Global Trust: Establishing Proportionate State Responsibility To Maintain, Restore And Sustain The Global Atmosphere already available in the Barry University School of Law Environmental and Earth Law Journal (EELJ), Volume 7, Issue1.

Dr. Boudreau taught international relations, international law, and conflict analysis at Syracuse and American Universities and the University of Pennsylvania. Currently, he is an Interdisciplinary Professor in the Department of Conflict Analysis and Dispute Resolution at Salisbury University in Salisbury, Maryland.  

The MAHB Blog is a venture of the Millennium Alliance for Humanity and the Biosphere. Questions should be directed to joan@mahbonline.org