232
and inconsistent. Article 18 is illustrative “In order to conserve, protect and restore
the integrity of the Earth’s ecosystem and community of life,” parties are merely
required to “co-operate in good faith and in the spirit of global partnership for the
implementation of the Pact.”
In the opinion of Kotzé and French, “only if the Global Pact were to incorporate
ambitious normative provisions to strengthen … global governance efforts that aim
to halt the deterioration of Earth system integrity, as well as maintain and improve
integrity, will it be able to offer a firm foundation …required to confront head on the
deep socio-ecological crisis...” (French and Kotzé 2019, p. 811). As it fails to meet
this standard, they consider it a stillborn initiative—one which does not provide for
foundational change. Other academic commentary criticises the Pact’s failure to
utilise earth system science and (in particular) the planetary boundaries framework
both of which are foundational to a very different understanding of the complex
global crisis (Fernández and Malwé 2019; Kotzé and Kim 2019; CHH 2019). It is
hard to determine what impact these omissions had on states during consultations.
It was largely left to civil society to champion truly transformative initiatives at
OWEG meetings (e.g.; CCH 2019; Earth Trusteeship 2019). However, the very
absence of a relevant text gave states an easy pass reinforcing a view that no fundamental changes in state behaviour were required.
With this overview of the GPE in mind, this chapter now turns to consider
whether an important opportunity has presented itself. The GPE was a fast moving
civil society initiative developed outside formal UN processes. As we have seen, it
suffered a serious set-back once it entered the UN system. This may or may not be
a good thing, depending on one’s view of its purpose and content. Nevertheless, if a
reformed GPE or other transformative legal initiative arising from civil society is to
avoid a similar fate, it is relevant to ask -what can we learn from legal precedents
that were more successful? This question is posed assuming that the state-centred
international legal system will remain unchanged, in the immediate future. One possible precedent is the responsibility to protect doctrine (R2P).
3 Responsibility to Protect Doctrine
R2P was chosen because it is considered to have radically transformed the preexisting concept of state sovereignty, as applied to humanitarian intervention. In
2000, UNSG Kofi Annan posed this challenge: “if humanitarian intervention is
indeed an unacceptable assault on state sovereignty how should we respond to a
Rwanda, to a Srebrenica – to gross and systematic violations of human rights that
offend every precept of our common humanity?” (Millennium Report 2000, p. 48).
In the current context of massive ecological destruction within the jurisdiction of
states (forest fires in Brazil, Bolivia and Indonesia being some of the most recent
examples), we can restate the same fundamental challenge as follows: ‘if a legal
obligation of responsibility for the Earth’s ecological integrity is an unacceptable
assault on state sovereignty, how should we respond to the gross and systemic
P. Taylor
and inconsistent. Article 18 is illustrative “In order to conserve, protect and restore
the integrity of the Earth’s ecosystem and community of life,” parties are merely
required to “co-operate in good faith and in the spirit of global partnership for the
implementation of the Pact.”
In the opinion of Kotzé and French, “only if the Global Pact were to incorporate
ambitious normative provisions to strengthen … global governance efforts that aim
to halt the deterioration of Earth system integrity, as well as maintain and improve
integrity, will it be able to offer a firm foundation …required to confront head on the
deep socio-ecological crisis...” (French and Kotzé 2019, p. 811). As it fails to meet
this standard, they consider it a stillborn initiative—one which does not provide for
foundational change. Other academic commentary criticises the Pact’s failure to
utilise earth system science and (in particular) the planetary boundaries framework
both of which are foundational to a very different understanding of the complex
global crisis (Fernández and Malwé 2019; Kotzé and Kim 2019; CHH 2019). It is
hard to determine what impact these omissions had on states during consultations.
It was largely left to civil society to champion truly transformative initiatives at
OWEG meetings (e.g.; CCH 2019; Earth Trusteeship 2019). However, the very
absence of a relevant text gave states an easy pass reinforcing a view that no fundamental changes in state behaviour were required.
With this overview of the GPE in mind, this chapter now turns to consider
whether an important opportunity has presented itself. The GPE was a fast moving
civil society initiative developed outside formal UN processes. As we have seen, it
suffered a serious set-back once it entered the UN system. This may or may not be
a good thing, depending on one’s view of its purpose and content. Nevertheless, if a
reformed GPE or other transformative legal initiative arising from civil society is to
avoid a similar fate, it is relevant to ask -what can we learn from legal precedents
that were more successful? This question is posed assuming that the state-centred
international legal system will remain unchanged, in the immediate future. One possible precedent is the responsibility to protect doctrine (R2P).
3 Responsibility to Protect Doctrine
R2P was chosen because it is considered to have radically transformed the preexisting concept of state sovereignty, as applied to humanitarian intervention. In
2000, UNSG Kofi Annan posed this challenge: “if humanitarian intervention is
indeed an unacceptable assault on state sovereignty how should we respond to a
Rwanda, to a Srebrenica – to gross and systematic violations of human rights that
offend every precept of our common humanity?” (Millennium Report 2000, p. 48).
In the current context of massive ecological destruction within the jurisdiction of
states (forest fires in Brazil, Bolivia and Indonesia being some of the most recent
examples), we can restate the same fundamental challenge as follows: ‘if a legal
obligation of responsibility for the Earth’s ecological integrity is an unacceptable
assault on state sovereignty, how should we respond to the gross and systemic
P. Taylor