Earth System Law for the Anthropocene

Abstract

Law has failed to address the ever-deepening socio-ecological crisis of the Anthropocene. In the light of, and as a response to, law’s failures in this respect, this paper argues in support of developing a new legal paradigm for the Anthropocene epoch called Earth system law. It does so first by briefly describing the Anthropocene trope and the extent and dimensions of its socio-ecological crisis. The paper then specifically focuses on international environmental law as an example of how and why law has become incapable of, and inappropriate for, addressing this crisis, and for being unable to respond to the Anthropocene’s regulatory demands. By drawing on three Earth system-related regulatory implications of the Anthropocene trope (i.e., inclusivity, interdependencies and complexity), the final part of the paper makes out a case in support of reforming law and creating a new Earth system oriented legal paradigm that is fit for purpose in the Anthropocene epoch.

A transition to sustainable ocean governance

“…The governance mechanisms for managing both adaptive and transformative change require radical shifts if a more responsive global ocean governance system is to be established 10 , 30 , 67 , 68 . Reconfigured nation-state authority 69 would occur by introducing principles such as reflexive, iterative governance (for example the voluntary national review process established for implementation and review of the UN Agenda 2020 70 ) (Glossary in Table 1 ), by including polycentric modes of governance (nested scales of governance from local to national or global scales, demonstrated by the Belize and Chilean examples, Table 2 , Boxes 2 and 3 ), and by creating meta-governance frameworks (such as the regime in Antarctica (Antarctic Treaty System 71 ).…”

“…The scale and scope of the contemporary transition required now is similar to that of the transition from hunter-gatherers to agrarian societies, and from agrarian societies to industrial societies 33 , 73 . In order to navigate the myriad complexities of this ocean transition, a balancing of economic, social and environmental objectives is required 5 , 10 . For example, the transformative approach of the United Nations’ 2030 Agenda and the Sustainable Development Goals (SDGs; specifically SDG 14—life below water) weaves together the numerous strands of sustainable development into an integrated set of ambitious goals that provides “coherence between policies and sectors, in all contexts—local, regional, national, transnational and global” 26 .…”

“…The increasing prevalence and dominance of transnational corporations is also challenging the central role of governments in governance. Ocean governance thus needs a transformative shift from a state-centric approach to a global approach 9 that takes into account the embeddedness of the ocean and associated actors in the wider planetary system 8 , 10 . It is therefore best seen as a commons (see Glossary in Table 1 )—a non-state, non-private shared resource that can only be protected if stakeholders who depend on it take collective responsibility for preservation and restoration 11 with self-devised protocols, values and norms 12 .…”

“…Here we argue that a purposeful transition to a more sustainable ocean system requires a profound departure from business-as-usual to a global regulatory effort to pursue ocean sustainability. Transformation to a thriving ocean system requires changes in governance across sectors and scales, with effective and inclusive participation by multiple actors 10 , 30 . The end result would be a form of “polycentric governance” (see Glossary in Table 1 ) that can manage shared resources and ocean space 31 .…”

“…The end result would be a form of “polycentric governance” (see Glossary in Table 1 ) that can manage shared resources and ocean space 31 . Ocean polycentricism may require a rule-setting global institution (such as an Ocean Agency, Box 1 ), to support multiple governing bodies by establishing a shared vision, and creating principled guiding frameworks and processes to facilitate coherent systems-oriented regulation ( 10 . In a complex world characterized by nationalist resistance to multi-lateralism on the one hand and the unviability of centralized control on the other (eg.…”