246
somewhat reflective of the first cosmopolitan reaches of environmental law, they
have also been critiqued as a lost opportunity where a paradigm shift to an ecocentric model of commons governance could have occurred (Montini and Volpe
2015, p. 142).
Another downfall of the operation of the legal international environmental system is its obsession with procedure. This, in addition to the fragmented and individualist characteristics of that system, means that urgent action is difficult to
implement, and longer-term solutions become diluted. Because only nation-states
can voluntarily enforce the law against other states, the system is also overwhelmingly political which overshadows actual environmental goals and tends to exclusively advance human interests. Essentially this means that instead of humans
evolving within the Earth system, we are evolving the system ourselves (Bosselmann
2016, p. 26).
It is therefore established that, given planetary limits, the current system of international environmental law is inadequate. It focusses on economic and social systems rather than ecological systems and has resulted in the continuous deterioration
of the Earth system as a whole. Such failure can be summarized as, “a mismatch
between global systems and the different interests of diverse states. In such a context, the sum of national interests is not always sufficient to meet systemic requirements” (Bosselmann 2016, p. 144). The different interests of diverse states are
upheld over the systemic requirements of the global system, maintaining a weak
approach to sustainability based on the lowest common denominator. In contrast, a
‘strong’ approach would model action around Earth system needs, resulting in a
‘safe operating space’ for humanity (Raworth 2012; Magalhaes et al. 2016).
However, state-centrism is unlikely to be dissolved in the near future. Instead, it
needs to be connected to a real concern for future generations and legal recognition
of the global commons including Earth. This new, more nuanced concept would
include the state as a trustee, imposing inalienable normative duties under a rationale that combines state sovereignty with the preservation of the integrity of Earth’s
ecological systems. This would include powers to resolve disputes through an
enforcement branch independent of the United Nations and as such incurring wider
and stronger accountability without relying on the assent of states.
3 The States as an Environmental Trustee
State sovereignty is too robust a pillar in international law to be disrupted in the near
future. Consequently, states’ governance mandates should be expanded so that their
actions appropriately reflect global and intergenerational concerns of their citizens
based on ecological values (Bollier 2008). In this way, the state is the only body
available to act as trustee in what is already primarily a trust relationship (Benvenisti
2013). Benvenisti premises this under the idea that state sovereignty is an exercise
of personal and collective self-determination and that as such states contract to act
as agents of humanity as a whole (Benvenisti 2013, pp. 301–305). There are also
K. Bosselmann
somewhat reflective of the first cosmopolitan reaches of environmental law, they
have also been critiqued as a lost opportunity where a paradigm shift to an ecocentric model of commons governance could have occurred (Montini and Volpe
2015, p. 142).
Another downfall of the operation of the legal international environmental system is its obsession with procedure. This, in addition to the fragmented and individualist characteristics of that system, means that urgent action is difficult to
implement, and longer-term solutions become diluted. Because only nation-states
can voluntarily enforce the law against other states, the system is also overwhelmingly political which overshadows actual environmental goals and tends to exclusively advance human interests. Essentially this means that instead of humans
evolving within the Earth system, we are evolving the system ourselves (Bosselmann
2016, p. 26).
It is therefore established that, given planetary limits, the current system of international environmental law is inadequate. It focusses on economic and social systems rather than ecological systems and has resulted in the continuous deterioration
of the Earth system as a whole. Such failure can be summarized as, “a mismatch
between global systems and the different interests of diverse states. In such a context, the sum of national interests is not always sufficient to meet systemic requirements” (Bosselmann 2016, p. 144). The different interests of diverse states are
upheld over the systemic requirements of the global system, maintaining a weak
approach to sustainability based on the lowest common denominator. In contrast, a
‘strong’ approach would model action around Earth system needs, resulting in a
‘safe operating space’ for humanity (Raworth 2012; Magalhaes et al. 2016).
However, state-centrism is unlikely to be dissolved in the near future. Instead, it
needs to be connected to a real concern for future generations and legal recognition
of the global commons including Earth. This new, more nuanced concept would
include the state as a trustee, imposing inalienable normative duties under a rationale that combines state sovereignty with the preservation of the integrity of Earth’s
ecological systems. This would include powers to resolve disputes through an
enforcement branch independent of the United Nations and as such incurring wider
and stronger accountability without relying on the assent of states.
3 The States as an Environmental Trustee
State sovereignty is too robust a pillar in international law to be disrupted in the near
future. Consequently, states’ governance mandates should be expanded so that their
actions appropriately reflect global and intergenerational concerns of their citizens
based on ecological values (Bollier 2008). In this way, the state is the only body
available to act as trustee in what is already primarily a trust relationship (Benvenisti
2013). Benvenisti premises this under the idea that state sovereignty is an exercise
of personal and collective self-determination and that as such states contract to act
as agents of humanity as a whole (Benvenisti 2013, pp. 301–305). There are also
K. Bosselmann