Where is ‘Earth’ 50 years after Stockholm?
There are many gaps in international environmental law, but the largest and most worrisome exists between the reality of one Earth and a world of competing States. To narrow the gap, international law needs to be ‘constitutionalized’ through fiduciary, or trusteeship, duties of States toward the Earth. The Stockholm 2022 Declaration should call for an Earth system approach to international law-making and for institutionalizing Earth trusteeship.
The 1972 United Nations Conference on the Human Environment adopted the Stockholm Declaration which marked the beginning of international environmental law. Its first Principle proclaimed the interrelatedness between humans and nature: “Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth”. The next four principles describe various responsibilities that humans have towards the Earth.
Ten years later, the United Nations General Assembly adopted the World Charter for Nature “aware that man is part of nature” and “convinced that every form of life is unique, warranting respect regardless of its worth to man” (Preamble). The first three principles state: “Nature shall be respected and its essential processes shall not be impaired” (1), “the genetic viability of the Earth shall not be compromised” (2) and “all areas of the Earth, both land and sea, shall be subject to these principles of conservation” (3).
Fifteen years later, the Brundtland Report observed in its opening statement that the sight of our planet from space may have “a greater impact on thought than did the Copernican revolution of the 16th century” as this allowed us to “see and study the Earth as an organism whose health depends on the health of all its parts”.
Remarkably, these early documents of international environmental law highlighted the uniqueness and vulnerability of the Earth, the interconnectedness and intrinsic value of all life forms, and a duty of caring for the Earth.
Twenty years later, the 1992 Rio Summit adopted the first global environmental treaties. They declared the “Earth’s climate” and “biological diversity” a common concern of humankind but reaffirmed the sovereign rights of States to exploit their own resources. In this way, any global responsibilities appeared as derivative and secondary reflecting the lowest common denominator among States. As a result, environmental treaties have always focussed on specific fragments of the Earth, with obligations dictated by feasibility rather than by urgency and further compromised by signatory States deciding for themselves how they should be implemented. Despite the Brundtland Report’s call “From One Earth to One World”, States have done very little to narrow the gap.
Fifty years after Stockholm, it is only too obvious that international environmental law has failed. Some “trees” have been saved, but the “forest” is disappearing.
Fifty years after Stockholm, it is only too obvious that international environmental law has failed. Some “trees” have been saved, but the “forest” is disappearing.[1] The reason is that States have kept their proclaimed responsibilities toward the Earth non-committal and not binding. What may be less obvious is that this carelessness is not just a lack of political will, but a repercussion of habitual state sovereignty. States and their representatives, some more than others, have used sovereignty as a shield against global action.
The biggest stumbling block has been the resistance against “new kinds of institutional arrangements and novel procedures of decision-making, on both national and international levels”. The person who wrote this was Maurice Strong, initiator, and Secretary-General of the 1972 Stockholm conference. A year after Stockholm, he observed that the State’s “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction” (Principle 21 Stockholm Declaration) is “a far more revolutionary matter than has yet been generally acknowledged or comprehended.”[2] Principle 21 reappeared as Principle 2 in the Rio Declaration adopted at the 1992 Earth Summit, again under the leadership of Maurice Strong as Secretary-General. Probably the most significant provision of both Declarations is this “no-harm” rule now widely recognized as a principle of customary international law whereby a State is duty-bound to prevent environmental harm to other States.[3] The problem is that the no-harm rule does not include “areas beyond national jurisdiction”, the global commons, or Earth as a whole. A conventional understanding of state sovereignty would not allow for this. An obligation erga omnes to safeguard the Earth does not exist. It may be emerging though[4] considering the many initiatives, declarations, and agreements that have since been produced by civil society, professional bodies; and international organizations.
Maurice Strong himself was instrumental for the Earth Charter that the 1987 Brundtland Report had called for, but was rejected by States during the 1992 Earth Summit. As a cross-cultural, cross-religions consensus of global values, the 2000 Earth Charter gained recognition among governmental agencies, several States, UNESCO, IUCN, and other global organizations. Its key principles are Respect and Care for the Community of Life (Part I) and Ecological Integrity (Part II).
Both principles directly address what international environmental law was and is in urgent need of, i.e., an overall objective and obligation to protect the integrity of the Earth’s ecological system. Its ethical core is our belonging to the “community of life” rather than long-standing Western anthropocentrism that has shaped traditional, ineffective environmental law. The Earth is not an assembly of natural resources for human consumption, but a living whole that humans are part of and need to respect.
The credibility of the Earth Charter stems from its completion of “unfinished business” that States were left with in their response to the Brundtland Report. The Report’s key message was to define social and economic development within the limits of the Earth’s life-supporting capacity and accept that we cannot grow forever on a finite planet.. Instead, States took sustainable development as a policy of an unspecified balancing of environmental, social and economic concerns[5] and consistent with business-as-usual ignored the fundamental importance of ecological sustainability. The Earth Charter’s principles 1 and 2 aim for rectifying this (deliberate?) ignorance.
Ecological integrity was also referred to in the Rio Declaration. Its Preamble recognized “the integral and interdependent nature of the Earth, our home” and Principle 7 postulates that “States shall co-operate in a spirit of global partnership to conserve, protect and restore health and integrity of the Earth’s ecosystem”. The overarching concern for the protection and restoration of the integrity of Earth’s ecological systems is expressed in more than 25 global agreements – from the 1982 World Charter for Nature right through to the 2015 Paris Climate Agreement. This gives ecological integrity fundamental importance, at least, potentially and akin to the grundnorm character of human rights.[6] Conceptually and institutionally, this requires States to act as trustees.[7] It is the only way to ensure that the State exercises sovereignty to the benefit and in the interest of its citizens.
Stockholm+50 offers yet another opportunity to focus on the Earth, but it may be the last. We are destroying Earth, our home, arguably because all talk about caring for the Earth remains empty.
Recent developments have made the concept of Earth trusteeship a stronger prospect than at the time of the 1992 Rio Summit or even the 2012 Rio+20 Summit. A key development has been the dramatically increased deterioration of the atmosphere (climate change), the hydrosphere (oceans, freshwater systems), the lithosphere (soils) and the biosphere (biodiversity loss). All four spheres are interrelated and hence require a much stronger focus on the Earth System. Climate change, for example, is closely connected with ocean acidification and biodiversity loss and none of these problems can ever be solved in isolation from the others. Most recently, the global pandemic has reminded us that nature is in charge, not governments merely exercising crisis management. Now more than ever before States need to acknowledge the urgency of an Earth System approach to decision-making and define obligations accordingly.
Several recent declarations and agreements have a greater focus on fundamental obligations toward Nature and Earth as a whole. One is the 2016 World Declaration on the Environmental Rule of Law. Principle 1 postulates the “Obligation to Protect Nature. Each State, public or private entity, and individual has the obligation to care for and promote the well-being of nature, regardless of its worth to humans, and to place limits on its use and exploitation.” Further, the 2017 Draft Global Pact for the Environment says in Article 2: “Every State or international institution, every person, natural or legal, public or private, has the duty to take care for the environment. To this end, everyone contributes at their own levels to the conservation and restoration of the integrity of the Earth’s ecosystem.” And the 2018 Hague Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship states in Principle 1: “All human beings, individually and collectively, share responsibility to protect Nature, of which we are an integral part, the integrity of Earth’s ecological systems and Earth as a whole, home of all living beings. Each State individually, and the international community of States collectively, acknowledge that they have, and share, responsibilities for Nature, in cooperation and in alliance with their citizens as equal trustees of Earth and the integrity of Earth’s ecological systems.”
The Hague Principles represent a consensus derived from the Earth Charter, the World Declaration on the Environmental Rule of Law, the Draft Global Pact for the Environment, and further 15 international agreements defining responsibilities that humans have for each other and for the natural environment that they are part of.[8]
Stockholm+50 offers yet another opportunity to focus on the Earth, but it may be the last. We are destroying Earth, our home, arguably because all talk about caring for the Earth remains empty. Enforceable responsibilities would change this. Legally, stewardship means trusteeship. A trustee acts to the benefit of those who cannot speak for themselves and is accountable to them. Trusteeship responsibilities of States are not new as the (now defunct) trusteeship system under Art. 75-91 of the UN Charter demonstrates and could be administered through a World Environmental Agency or UN Trusteeship Council, for example.[9] Earth trusteeship would be codified and institutionalized through a process of constitutionalizing environmental law at national and international levels.[10] What matters now is a commitment expressed in the Stockholm+50 Declaration – a commitment to a legally binding Global Pact that follows an Earth system approach,[11] includes Earth trusteeship and hence more appropriately should be named Global Pact for Earth.
[1] K. Bosselmann, Losing the Forest for the Trees, Sustainability 2(8), 2010, 2424-2448.
[2] M. Strong, One Year After Stockholm, Foreign Affairs Magazine 51(4), 1973, 690-707.
[3] UNEP Law and Environment Assistance Platform.
[4] N. Robinson, Environmental Law: Is an Obligation Erga Omnes Emerging?, 2018.
[5] K. Bosselmann, The Principle of Sustainability, Routledge 2nd ed. 2017, 25-32.
[6] R. Kim and K. Bosselmann, “Operationalizing Sustainable Development: Ecological Integrity as a Grundnorm in International Law”, Review of European, Comparative and International Environmental Law, 24:2, 2015, 194-208.
[7] E. Benvenisti, “Sovereigns as Trustees of Humanity”, American Journal of International Law 107:2 (2013); see also E. Benvenisti https://www.ejiltalk.org/why-should-states-be-viewed-as-trustees-of-humanity-and-what-could-be-the-implications/; K. Bosselmann, Earth Governance, Edward Elgar 2015, 113-197; see also K.Bosselmann The Next Step: Earth trusteeship, 2017.
[8] Listed as Annex to the Hague Principles.
[9] Bosselmann, FN 7, 226-267; B. Desai, “On the Revival of the UN Trusteeship Council with a New Mandate for the Environment and the Global Commons”, Yearbook of International Environmental Law, 2018, 1-25.
[10] K. Bosselmann and M. Botrel, “Constitutionalizing International Environmental Law”, Sciences Po Law Review, 8, 2020, 11-16.
[11] P. Magalhaes, P. Steffen, K. Bosselmann, A. Aragao and V. Soromenho-Marques (eds.), SOS Treaty – Safe Operating Space Treaty: Managing Earth systems use, Cambridge Scholars Publ., 2016.
