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‘very disappointing’, ‘weak’ and a ‘clear retreat from the original proposal’ (GPE
Newsletter, 27 May 2019; ENB 2019c, pp. 3 and 11).
What are we to make of this failure? Specifically, what are we to make of such
failures at a time of clear crisis for international environmental governance? Is it
possible that this ‘failure’ may be helpful if we can make positive use of the opportunities created? This framing is not intended to disrespect the hard work of GPE
proponents, OEWG participants and many others. Rather the intention is to utilise
the GPE experience in a positive way. Much academic analysis to date has focused
on renovating the existing draft GPE or on replacing it altogether with a document
more fit for purpose (Biniaz 2019; Kotzé and French 2018; Kotzé and Kim 2019).
The focus here is different. This chapter asks; what can we learn from the emergence and state acceptance of other transformative concepts of international law
that might be useful for (a) a reformed GPE (or alternative document) or (b) other
transformative legal initiatives emerging from civil society such as Earth Trusteeship
(Bosselmann 2015), Ecological Law (Oslo 2016) and Earth System Law (Kotzé and
Kim 2019; Fernández and Malwé 2019)?
More specifically, what can we learn from the emergence and acceptance of a
radical legal norm which emerged some 15 years ago and transformed state sovereignty and international law on humanitarian intervention? This legal norm is
known as the ‘responsibility to protect’ doctrine (R2P). This doctrine could be relevant to international environmental law and governance in a number of significant
ways. For example, it may be extended to apply to grave ecological harm within
state jurisdiction. This was part of R2P’s original scope (Report 2001, art 4.20).
Support for this approach may have strengthened in recent years due to enhanced
legal recognition of environmental human rights (Axworthy and Rock 2009; Fishel
2018). Another approach could be to analyse and utilize R2P’s original reconceptualization of ‘sovereignty as responsibility’ to reform permanent sovereignty over
natural resources (Deng 2010). These approaches all merit further investigation but
they are not the focus of this chapter which is primarily on the process by which
R2P emerged and what lessons this might hold for the GPE or other civil society
initiatives.
This chapter begins with an overview of the GPE; what it is, its ambition and
brief consideration of why it failed. It then uses selected factors central to the success of R2P and considers the extent to which these are present or absent in the case
of the GPE. This preliminary analysis indicates that more in depth research is merited. Much can be learnt from a process that was more bottom up, utilised very
broad consultation processes to build support and legitimacy, embraced normative
change and was explicitly embedded in both European and non-European legal systems. A further conclusion is that all future transformative legal initiatives must pay
much more attention to the processes by which legal initiatives evolve and develop.
Failure to do so puts the legitimacy of international law at risk.
P. Taylor
‘very disappointing’, ‘weak’ and a ‘clear retreat from the original proposal’ (GPE
Newsletter, 27 May 2019; ENB 2019c, pp. 3 and 11).
What are we to make of this failure? Specifically, what are we to make of such
failures at a time of clear crisis for international environmental governance? Is it
possible that this ‘failure’ may be helpful if we can make positive use of the opportunities created? This framing is not intended to disrespect the hard work of GPE
proponents, OEWG participants and many others. Rather the intention is to utilise
the GPE experience in a positive way. Much academic analysis to date has focused
on renovating the existing draft GPE or on replacing it altogether with a document
more fit for purpose (Biniaz 2019; Kotzé and French 2018; Kotzé and Kim 2019).
The focus here is different. This chapter asks; what can we learn from the emergence and state acceptance of other transformative concepts of international law
that might be useful for (a) a reformed GPE (or alternative document) or (b) other
transformative legal initiatives emerging from civil society such as Earth Trusteeship
(Bosselmann 2015), Ecological Law (Oslo 2016) and Earth System Law (Kotzé and
Kim 2019; Fernández and Malwé 2019)?
More specifically, what can we learn from the emergence and acceptance of a
radical legal norm which emerged some 15 years ago and transformed state sovereignty and international law on humanitarian intervention? This legal norm is
known as the ‘responsibility to protect’ doctrine (R2P). This doctrine could be relevant to international environmental law and governance in a number of significant
ways. For example, it may be extended to apply to grave ecological harm within
state jurisdiction. This was part of R2P’s original scope (Report 2001, art 4.20).
Support for this approach may have strengthened in recent years due to enhanced
legal recognition of environmental human rights (Axworthy and Rock 2009; Fishel
2018). Another approach could be to analyse and utilize R2P’s original reconceptualization of ‘sovereignty as responsibility’ to reform permanent sovereignty over
natural resources (Deng 2010). These approaches all merit further investigation but
they are not the focus of this chapter which is primarily on the process by which
R2P emerged and what lessons this might hold for the GPE or other civil society
initiatives.
This chapter begins with an overview of the GPE; what it is, its ambition and
brief consideration of why it failed. It then uses selected factors central to the success of R2P and considers the extent to which these are present or absent in the case
of the GPE. This preliminary analysis indicates that more in depth research is merited. Much can be learnt from a process that was more bottom up, utilised very
broad consultation processes to build support and legitimacy, embraced normative
change and was explicitly embedded in both European and non-European legal systems. A further conclusion is that all future transformative legal initiatives must pay
much more attention to the processes by which legal initiatives evolve and develop.
Failure to do so puts the legitimacy of international law at risk.
P. Taylor