The Global Challenge for the Courts: Enforcing Intergenerational Equity or Lex Naturalis

Boudreau, Thomas | May 11, 2023 | Leave a Comment

 No single generation claims tyranny over past generations or future ones. –Edmund Burke


“Where There is a Right, There is a Remedy” 

Nation-states within the current international legal order are fundamentally failing in their basic lawful duty to ensure the preservation or perpetuation of their people or the Earth’s ecosystems and biodiversity upon which their very lives depend; in particular, modern nation-states, especially the developed or industrialized ones, are continually failing to protect us from the still legally sanctioned activities initiated or within their jurisdictions that are causing potentially irreversible global climate change [1], thus threatening our self-preservation as individuals, societies, and even as a species. 

In view of this, Lex Naturalis or the Law of Naturewhich seeks to preserve present life on planet Earth, is proposed and developed here as a more minimal, partial, yet more demanding legal principle inherent in the legal duty of ensuring Intergenerational Equity (IE). We must first ensure the continued existence of current life on this planet before we can pass on any sort of ecological inheritance to future generations. 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” [2].

In short, self-preservation is a fundamental instinct and duty of living sapient beings; people have a right and responsibility to live and simply survive. As such, this is a basic human right that other rights are derived and depend upon for full expression. For Hobbes, such self-preservation includes not only the individual but also 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 generally as nature–ranging from local ecologies to vast global commons necessary for life on Earth. So, the word “Nature” as used here includes the totality of global, regional, and local ecologies, biodiversity, species, and the global commons—including the Earth’s atmosphere [3]–upon which human beings and an entire nation fundamentally rely for our mere existence, as your next breath of air attests. 

The state has a supreme duty to protect the nation and nature from threats to survival within its jurisdiction. In particular, if the laws of the state can’t ensure our self-preservation as a nation or as a species, especially from the unprecedented yet largely preventable threat of accelerating climate change, then the state and the rule of law have fundamentally failed [4].

If we ignore this sine qua non Law of Nature–self-preservation–then we may well perish due to climate change brought on mainly by large-scale human activities, such as the extraction and burning of fossil fuels, that are still legally sanctioned and legitimated within state jurisdictions. Our future fate may then find us witnessing traffic law courts merely passing out convictions for parking or speeding tickets till the last day. 

To help prevent this, Lex Naturalis or the Law of Nature requires, first and foremost, that international, regional, national, or indigenous courts enforce, when appropriate, the absolute minimum legal requirements and remedies of IE and thus help preserve current life as well as all the ecological means—including the global commons and the Earth’s ecologies; such action is now absolutely necessary to support and sustain life on this planet. As such, enforcing IE and equitable remedies are paramount yet minimal legal duties of the sovereign state and its courts governed by the rule of law in the Anthropocene Age.

The Most Promising Negative Emission Technologies (NETs): A Tentative List of Equitable Remedies 

The Courts must begin to impose the deployment of Negative Emission Technologies (NETs) as equitable remedies in cases involving the continuing use of carbon-based fuels. The potential of various NETs and carbon sequestration techniques has been extensively studied and proven [5]. The most promising NETs are listed below and are currently being developed [6]. However, each project needs a large infusion of capital now to scale up to the enormous scale required for effective deployment and implementation. (This list is not exhaustive; there are many more NETS and Carbon Dioxide Removal (CDR) methods in development). These promising NETs include:

a) UCLA’S Carbon Management Institute: “Sea Change” 

The “Single-step Carbon Sequestration and Storage” Project was developed in prototype at the Carbon Management Institute at the University of California, Los Angeles (UCLA). This extraordinarily innovative institute at UCLA has developed a variety of proven and patented NETs, including the one with perhaps the most potential to capture CO2 out of the global atmosphere, entitled “Sea Change.” Simply stated, this is one of the two or three most promising NETs in development in the world today [7]. 

b) Heimdal CCU and Karbon X Corp

Two Oxford graduates developed a process similar to the UCLA “Sea Change” but using a different chemical process to remove CO2 from ocean water and permanently capture it as calcium carbonate and other inert but beneficial substances powered by solar energy. They formed a company called Heimdal CCU and deployed the first working pilot project to remove CO2 from the atmosphere in Hawaii in 2021-22 [8]. They then partnered with Karbon X Corp to expand their capacity to remove CO2 in real-time. Heimdal CCU is expected to expand carbon capture in the first quarter of 2023 to 5000 tonnes per year, and by the first quarter of 2025, to  5 million tons of carbon per year [9].

c) Marine Permaculture and The Climate Foundation 

Massive Marine Permaculture and kelp farms have already been developed and deployed by the Climate Foundation in largely indigenous areas in Indonesia and the Philippines, where local people are intensely dependent on the fish protein that healthy coral reefs provide [10]. Drawing up cooler waters to the surface also helps with large-scale kelp farming and harvesting. It is a source of income to local inhabitants (and to potential investors) from Australia to the Philippines on a potentially massive scale, so much so that the directors of the foundations, including highly trained scientists, believe that such Marine Permaculture can suck out gigatons of CO2 from the atmosphere yearly. Their success in CO2 sequestration through kelp farming so far places them at the very top of the most promising NETs in the world today.

d) Carbon Capture and Storage: The Orca Project 

Since so much has already been written and researched about the Orca Project, I refer to the citations and articles listed below in the footnotes for a fuller and more robust description and explanation [11]. This project may be unique to Iceland and its geography, but carbon capture and storage methods are proliferating. They possess enormous potential for growth with proper and adequate funding. As such, this is an opportune area for court-mandated legal remedies now needed to ensure the preservation of life, especially the younger generations, on this planet. 

e) Cutting-edge remedies? The first annual Oxford State of Carbon Dioxide Removal Report 

Oxford University’s Smith School of Enterprise and the Environment issued a report that states in its introduction that: “Carbon Dioxide Removal (CDR) from the atmosphere is crucial to limit global warming, in addition to rapid cuts to emissions–[this] is the stark conclusion of today’s first Oxford-led State of Carbon Dioxide Removal report” [12].

The report is full of the most promising CDR techniques, here also called Negative Emissions Technologies (NETs), that courts from around the world could order national governments to rapidly develop and deploy as remedies in order to close the “large gap” between how much carbon removal is needed, or legally being burned within national jurisdictions.

Conclusion: An Urgent Imperative

The general principle of Lex Naturalis, defined as the first essential element of IE, is the basic Law of Life that recognizes and requires self-preservation as the supreme obligation of the nation-state. If the state fails in this fundamental duty, IE or Lex Naturalis permits the court-mandated application and enforcement of equitable remedies as a relief. This article lists several of the most promising NETs the courts could mandate as equitable remedies. 

Notes and references

[1] See, for example, Carasik, L. (2014). The UN climate change report warns of severe and irreversible effects. Also: Kim, S. K., Shin, J., et al.,(2022). Widespread irreversible changes in surface temperature and precipitation in response to CO2 forcing. Nature Climate Change12(9), 834-840. Or: Bounegru, L., De Pryck, K., Venturini, T., & Mauri, M. (2020). “We only have 12 years”: YouTube and the IPCC report on global warming of 1.5 ºC.; or finally: UN Secretary General’s famous speech, “We are on the highway to hell,” are-on-a-highway-to-climate-hell-un-chief-Guterres-.

[2] Hobbes, Leviathan. It’s interesting to note that Hobbes, who translated many ancient Latin texts into English, translates Lex Naturalis as “the Law of Nature,” not as “natural right.” By doing so, he is making an explicit point—that self-preservation of life and the means of preserving the same” is a basic law of nature that makes life on Earth possible. 

[3] Boudreau, T. (2017). The Earth’s Atmosphere as a Global Trust: Establishing Proportionate State Responsibility to Maintain, Restore and Sustain the Global Atmosphere. Earth Jurisprudence & Envtl. Just. J.7, 39.

[4] Of course, the concept concerning the “Rule of Law” is contested; for our working definition, see Ibáñez, J. G. (2012). International Rule of Law and Human Rights: The Aspiration of a Work in Progress. J. Juris16, 515.

[5] See note 20, supra. (above.)

[6] Based on earlier research and articles at: and Part III:

[7] See UCLA Research Team Proposes Strategy to Reduce Carbon Dioxide in the Atmosphere | CEE; and also see: Could the ocean hold the key to reducing carbon dioxide in the atmosphere? | UCLA.

[8] See Also: Or:

[9] Ibid., Karbon-X-Corp.

[10] See The Climate Foundation; also see a recent Economist article on kelp farming conducted by the Climate Foundation at:

[11] See, for example, World’s biggest machine capturing carbon from air turned on in Iceland | Carbon capture and storage (CCS) | The Guardian; or: The next step towards a climate-positive world: Orca! (

[12] See There is a link to the full Oxford report on this webpage.

Thomas Boudreau obtained his Ph.D. from the Maxwell School at Syracuse University in 1985. Thomas is the author/editor of three books, Sheathing the Sword (1991) and Universitas (1998), and over a dozen articlesHis 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 is already available in the Barry University School of Law Environmental and Earth Law Journal (EELJ), Volume 7, Issue 1.

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.  

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