248
appropriate institution to strengthen and expand so as to develop trusteeship governance. There is a question, though, as to the extent of legal recognition of the
environment that would need to take place before such commitment could be conceded by states. Options to overcome this are wide-ranging, including grundnorms
of ecological integrity, rights of nature and future generations, and legal personhood
of individual ecosystems. These will be discussed further below.
Currently missing from mainstream discourse around international environmental law is an appropriate theory of the state. This can be forwarded through more
scholarship to demonstrate that the state inherently has a trusteeship function. An
important part of such a theory is the recognition of two types of land ownership.
i.e. property and the commons, or res communes under Roman law. This latter type
ensures permanent use of all through effective mechanisms of protection.
Historically, the commons have been vulnerable to overuse (Hardin 1968), but this
was due to the lack of effective trusteeship governance. Without it, property rights
will take over and the commons will eventually suffer. This phenomenon was
greatly accelerated in the age of capitalism where property rights have virtually
replaced any trusteeship governance of the commons (Bosselmann 2015, p. 107;
Bosselmann 2016, pp. 129–136).
By returning to the various political theories that describe how the state gains its
legitimacy, trusteeship obligations become apparent and indeed a key function of
the twenty-first century state. Essentially, the democratic state comes into being
through election by its people, meaning that in order to retain its authority it must
uphold the fiduciary obligations through which those same people can hold it
accountable. These can also be derived from social contract theory, in particular if
associated with the public trust doctrine of North America and other notions of
trusteeship, such as guardianship or, in the case of New Zealand, the tikanga Māori
concept of kaitiakitanga. The assumption that ultimately humanity aims to survive
can be safely made (Bosselmann 2016, p. 53) requiring states to adopt a position as
agents of humanity as a whole (Benvenisti 2013).
This theory of the state therefore concludes that redefining the concept of state
sovereignty to include trusteeship obligations is possible due to democracy. Its normative basis is the grundnorm of ecological integrity in the same vein as the existing
grundnorm of human rights. Both not only legitimize the state as the law enforcing
authority, they also necessitate it as a guarantor and trustee. Without trusteeship
obligations to protect human beings and the integrity of ecological systems, the
state lacks any legitimacy.
On this basis, we can turn to the means by which Earth trusteeship may be institutionalized in international environmental law. It should be noted that trusteeship
governance is inherent in documents such as the Earth Charter which can be considered an ethical framework for Earth governance. However, to remain in that nascent
status it needs to be defined and translated into (constitutional) law. Drawing from
the democratic theory of the state, the starting point for this is recognizing the active
interests of citizens and making value-based decisions from these. A variety of
options have been proposed or attempted, from a weak ‘greening’ of decisionmaking, through to systemic transformation. What has been established in the
K. Bosselmann
appropriate institution to strengthen and expand so as to develop trusteeship governance. There is a question, though, as to the extent of legal recognition of the
environment that would need to take place before such commitment could be conceded by states. Options to overcome this are wide-ranging, including grundnorms
of ecological integrity, rights of nature and future generations, and legal personhood
of individual ecosystems. These will be discussed further below.
Currently missing from mainstream discourse around international environmental law is an appropriate theory of the state. This can be forwarded through more
scholarship to demonstrate that the state inherently has a trusteeship function. An
important part of such a theory is the recognition of two types of land ownership.
i.e. property and the commons, or res communes under Roman law. This latter type
ensures permanent use of all through effective mechanisms of protection.
Historically, the commons have been vulnerable to overuse (Hardin 1968), but this
was due to the lack of effective trusteeship governance. Without it, property rights
will take over and the commons will eventually suffer. This phenomenon was
greatly accelerated in the age of capitalism where property rights have virtually
replaced any trusteeship governance of the commons (Bosselmann 2015, p. 107;
Bosselmann 2016, pp. 129–136).
By returning to the various political theories that describe how the state gains its
legitimacy, trusteeship obligations become apparent and indeed a key function of
the twenty-first century state. Essentially, the democratic state comes into being
through election by its people, meaning that in order to retain its authority it must
uphold the fiduciary obligations through which those same people can hold it
accountable. These can also be derived from social contract theory, in particular if
associated with the public trust doctrine of North America and other notions of
trusteeship, such as guardianship or, in the case of New Zealand, the tikanga Māori
concept of kaitiakitanga. The assumption that ultimately humanity aims to survive
can be safely made (Bosselmann 2016, p. 53) requiring states to adopt a position as
agents of humanity as a whole (Benvenisti 2013).
This theory of the state therefore concludes that redefining the concept of state
sovereignty to include trusteeship obligations is possible due to democracy. Its normative basis is the grundnorm of ecological integrity in the same vein as the existing
grundnorm of human rights. Both not only legitimize the state as the law enforcing
authority, they also necessitate it as a guarantor and trustee. Without trusteeship
obligations to protect human beings and the integrity of ecological systems, the
state lacks any legitimacy.
On this basis, we can turn to the means by which Earth trusteeship may be institutionalized in international environmental law. It should be noted that trusteeship
governance is inherent in documents such as the Earth Charter which can be considered an ethical framework for Earth governance. However, to remain in that nascent
status it needs to be defined and translated into (constitutional) law. Drawing from
the democratic theory of the state, the starting point for this is recognizing the active
interests of citizens and making value-based decisions from these. A variety of
options have been proposed or attempted, from a weak ‘greening’ of decisionmaking, through to systemic transformation. What has been established in the
K. Bosselmann