Charting

Environmental

Law Futures in the

Anthropocene

Michelle Lim Editor

Charting Environmental Law Futures

in the Anthropocene

Michelle Lim

Editor

Charting Environmental Law

Futures in the Anthropocene

123

Editor

Michelle Lim

Adelaide Law School

University of Adelaide

Adelaide, SA, Australia

ISBN 978-981-13-9064-7 ISBN 978-981-13-9065-4 (eBook)

https://doi.org/10.1007/978-981-13-9065-4

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Foreword

Earth system scientists suggest we might be entering the Anthropocene, a new

geological epoch, where humans have become a global geophysical force, domi-

nating and changing the Earth system. While the Anthropocene must still be ofﬁ-

cially designated as such, it has since become a useful discursive framework that

now occupies a central position in the sustainability discourse. In fact, the

Anthropocene has become an important, if not enti rely uncontentious, issue per-

meating the many multidisciplinary conversations that grapple with the place and

future of humans as part of the Earth system. Originally emanating from the d omain

of natural sciences, the Anthropocene has now also become a focus of social

sciences and the humanities, evidenced in particular by its recent inclusion as one

of the four contextual conditions of the new Science and Implementation Plan of the

Earth System Governance Project (the others are transformations, inequality and

diversity).

Curiously, however, when compared to the geosciences and the Earth system

governance research agendas , the Anthropocene remains largely underexplored in

the juridical domain, with only a few lawyers having interrogated its implications

for law and legal scien ce generally, and for environmental law speciﬁcally. Those

of us that are investigating the relationship between the Anthropocene and law

broadly agree that law is a critical element of the human–political–social system,

and an important part of those social regulatory institutions that humans con-

sciously design to establish and maintain a speci ﬁc type of desir ed social order.

This is increasingly an order that is being destabilized by Earth system changes, as

the impacts of climate change on societies across the globe clearly suggest. The

Anthropocene is therefore critically relevant to law and legal science, while con-

versely, law has an important role to play in contemplating and ensuring Earth

system integrity and future life on Earth.

The intimate link between law and the Anthropocene will ask of us to consider

among others, how and the extent to which the Anthropocene is changing our

perceptions of law as a regulatory institution, including our trite perceptions of

law’s content, purpose, objectives and design. It will also require of us to re ﬂect on

human agency and the role of law in governing human actions in the Anthropocene,

including the impacts of these actions on the Earth system and the impacts of other

Earth system processes on human existence. The Anthropocene in this sense allows

for an opening up of hitherto prohibitive epistemic ‘closures’ in the law, of legal

discourse more generally, and of the world order that the law operatively seeks to

maintain, to a range of other understandings of, and cognitive frameworks for,

global environmental change. It further reveals the context to contemplate possible

ways to more innovatively mediate this change through the law.

Embracing many of the foregoing considerations, this book is squarely aimed at

addressing the underexplored role of law and legal science in relation to the

Anthropocene. Edited by Michelle Lim, one of Australia’s leading environmental

lawyers, the book offers an impressive collection of critical reﬂections on the

myriad of emerging challenges for environmental law in the Anthropocene, while at

once also describing the importance of, and critically urgent need for, developing

strategies to deal with the Anthropocene’s mounting socio-ecological crisis. To this

end, the bo ok very speciﬁcally focuses on the role of environmental law in shaping

sustainable futures. But the book also aims to do more than this: representing an

impressive collection of jurisdi ctions from around the globe, it provides rich cos-

mopolitan perspectives from an emerging generation of environmental lawyers to

voice their concerns and views in relation to environmental law futures in the

Anthropocene, while it also seeks to foster intergenerational dialogue through

contributions from established scholars. To this end, contributors to the volume

broadly reﬂect on a range of burning questions including: critically redeﬁning the

human–environment relationship in the Anthropocene; the imperative of main-

taining planetary order while improving international collaboration; ways to

implement transformative law and governance for sustainable and equitable futures;

and ﬁnally, a forward-looking research agenda that must further interrogate the

place and role of environmental law in the Anthropocene.

While one can easily become despondent in the face of the seemingly insur-

mountable challenges that the Anthropocene throws up for humanity, this book is

proof that there is an alternative, more sanguine narrative out there that speaks of

hope and that encourages us to resolutely confront the socio-ecological crisis of the

Anthropocene in innovative and creative ways through the art and craft of envi-

ronmental law.

Louis J. Kotzé

Research Professor of Law

North-West University

Potchefstroom, South Africa

vi Foreword

Contents

1 Securing Equitable and Sustainable Futures

in the Anthropocene—What Role and Challenges

for Environmental Law?

................................. 1

Michelle Lim

Part I Re-deﬁning Human-Environment Relationships

2 Rights of Nature in the Anthropocene: Towards

the Democratization of Environmental Law?

................. 21

María Valeria Berros

3 Moving Towards “Ecological Civilization” in the Anthropocene:

The Future of Environmental Law in China

.................. 33

Di Zhou

4 International Environmental Law in the Anthropocene:

Addressing the Gaps Towards ‘Sustainable Development

Law’

................................................ 45

Fabiano de Andrade Correa and Marina Demaria Ven âncio

5 Ecological Restoration as a Legal Duty in the Anthropocene

..... 59

An Cliquet

6 Governance for Protected Areas “Beyond the Boundary”—A

Conceptual Framework for Biodiversity Conservation

in the Anthropocene

.................................... 71

Toshinori Tanaka

Part II Planetary Order and International Collaboration

7 The Ocean-Climate Nexus in the Unfolding Anthr opocene:

Addressing Environmental Challenges Through International

Law and Cooperation

................................... 83

Stephen Minas

vii

8 Consequences of the Recognition of Forest Protection

as a Common Concern of Humankind for the Anthropocene

..... 95

Maša Kovič Dine

9 International Water Law in Multi-scale Governance of Shared

Waters in the Anthropocene: Towards Cooperation, no t

“Water Wars”

........................................ 107

Remy Kinna

10 Rising China and Antarctic Futures in the Anthropocene

....... 121

Nengye Liu

11 The International Environmental Court—A Necessary

Institution for Sustainable Planetary Governance

in the Anthropocene

.................................... 129

Alexander M. SoIntsev

12 Global Assessment and Review: The Importance

of a Transparency Turn in International Environmental Law

.... 139

Naﬁseh Jafarzadeh

Part III Implementing Transformative Law and Governance

for Sustainable and Equitable Futures

13 Indigenous Rights and Universal Periodic Review:

A Conﬂuence of Human Rights and Environmental Issues

....... 151

Jonathan Liljeblad

14 Constitutional ly Shackled: The Story of Environmental

Jurisprudence in India

.................................. 159

Nupur Chowdhury

15 Liability for Environmental Harm as a Response

to the Anthropocene

.................................... 171

Jacob Phelps, Carol Adaire Jones and John Pendergrass

16 On the Hypot actic Imperative for a Transition

from the Anthropocene to the Sustainocene

.................. 181

Benjamen Franklen Gussen

17 Municipal Solid Waste Management in India: Why Judicial

Activism and Legislative Interventions Have Failed to Effectively

Address This Issue?

.................................... 191

Maneka Kaur

18 Can South African Planning Law and Policy Promote Urban

Sustainability in the Anthropocene?

........................ 203

Angela van der Berg

viii Contents

Part IV Research Agenda for Sustainable and Equitable

Environmental Law Futures in the Anthropocene

19 Pathways to Equitable Sustainability in the Anthropocene:

An Agenda for Legal Research

............................ 221

Michelle Lim

Contents ix

Chapter 1

Securing Equitable and Sustainable

Futures in the Anthropocene—What

Role and Challenges for Environmental

Law?

Michelle Lim

Anthropocene

Anthropo- = human (from Ancient Greek anthr¯opos;

¥νθρωπoς);

-cene = new/recent (from Ancient Greek kainos; καιν´oς).

“The Anthropocene epoch i s a new geological interval that

intimately fuses two major components—Earth itself and the

human population which thrives upon it.

This epoch marks the apex of our hegemony on Earth. It

highlights the permanent changes humanity has imposed on

planetary operating systems. And it emphasizes the point that we

are now the authors of our own destiny.

Do we shape our future by considered choice or have we been

victimized by an innate propensity to maximize … everything.”.

– Stephen Purdey (2018) Masters of our fate?

Abstract This introductory chapter sets out the emerging challenges for environ-

mental law in the Anthropocene. It highlights the importance of developing strategies

to deal with a range of plausible futures. The chapter identiﬁes the role of environ-

mental law in shaping sustainable and equitable futures. It also highlights the short-

comings of and obstacles for contemporary legal and institutional frameworks which

might limit the potential of legal instruments to address the challenges of the Anthro-

pocene. The chapter concludes by introducing each of the subsequent chapters and

demonstrating how the multifaceted issues explored in the book address the role for

law in shaping sustainable and equitable futures amidst signiﬁcant uncertainty.

Keywords Sustainable legal futures

· Anthropocene · Equitable sustainability

M. Lim (

)

Adelaide Law School, University of Adelaide, Adelaide, Australia

e-mail: [email protected]

M. Lim (ed.), Charting Environmental Law Futures in the Anthropocene,

https://doi.org/ 10.1007/978-981-13-9065-4_1