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  • Series: Research Handbooks in Climate Law series x
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Jordi Jaria-Manzano and Susana Borràs

Climate change is the most conspicuous phenomenon that illustrates the dawn of the Anthropocene era. The geological transition underlines the creation of an eco-social continuum which effaces traditional physical borders and conceptual fractures, creating a cosmopolis in which nature and society interact seamlessly. The construction of a global community seems to demand a new constitutional discourse which cannot be designed in a traditional way, given the lack of global sovereignty, but should rather provide tools to control power and create inclusive citizenship. In particular, this kind of open and fluent constitutional discourse seems necessary to address climate change, providing tools to mitigate its effects, enable adaptation and enhance accountability, participation and deliberation. To advance in this approach, it is necessary to take into account the reality of the international legal regime on climate change, and to use its fundamental features to extract principles to inform decision-making processes and instruments of accountability based on democracy and rule of law. Accordingly, the constitutionalization of the climate change regime is one of the main challenges in the design of a legal discourse and practice that addresses the transition to the Anthropocene.

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Alf Hornborg

The emergent worldview of the Anthropocene is reorganizing our way of drawing boundaries between the natural and the social. Never has it been so apparent that the economic models and doctrines that guide our politicians cannot be cultivated in isolation from natural science. The Anthropocene prompts us to rethink the modern concept of ‘technology’, which tends to raise expectations of a magical human ingenuity that promises to liberate us from all kinds of limitations, but which involves a less obvious, distributive dimension that is essentially social. This chapter discusses some societal, philosophical and existential implications of Earth System science and the notion of the Anthropocene. It argues that the many commentators on our global predicament fail to seriously consider the idea of general-purpose money, which is arguably the ultimate root of the Anthropocene predicament. This predicament will ultimately force us to acknowledge – contrary to a conventional modern worldview – the natural, physical aspects of what we know as economic growth, as well as the social, distributive aspects of what we know as technological progress. Such a shift of perspective requires that we recognize the aggregate capacity of monetary flows to physically reorganize the Earth System, not least through the accumulation of fossil fuel technologies. Most fundamentally, we shall have to acknowledge that the quintessential artefact of modernity – the meme of general-purpose money – embodies an intrinsic logic that inexorably generates widening global gaps and environmental destruction.

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Jordi Jaria-Manzano

The social metabolism of the capitalist world economy has transformed the biophysical foundation of social reproduction. As we enter the Anthropocene era, hegemonic social processes at a global level are modifying the planet in a comprehensive, irreversible and uncertain way, causing disturbance and social unrest. The geological transition to an era defined by human transformation of the Earth has produced a civilizational crisis in terms of sustainability and justice. This demands a profound debate on the constitutional principles to govern the global socioecological processes that human evolution has arrived at. An exploration of a global constitutionalism to address this socioecological crisis should draw on current legal fundamentals and evolve from principles such as precaution, cooperation and responsibility, moving from the atomistic framework of modernity to an interdependence scheme informed by the holistic perspective required to confront the geological transition. By overcoming modern key political concepts, such as sovereignty and the political utopia that is embedded in the culture of human rights, new approaches to constitutionalism should develop interdependence into a fluent, intertextual and evolving constitutional discourse.

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Louis J. Kotzé

The far-reaching socio-ecological disruptions that characterize the Anthropocene are clearly evident in the context of climate change: a socio-ecological disaster that poses an existential threat to the entire living order. In order to confront head on the Anthropocene’s climate crisis, radical reforms of the global political, economic, social and juridical architecture are urgently required. One possibility through which to creatively accomplish such radical regulatory reforms in an innovative but at the same time familiar way could lie in the global environmental constitutionalism paradigm. This chapter endeavours to answer the following question: what is the potential worth of addressing the Anthropocene’s climate change crisis through a global environmental constitution, and which existing international environmental law instrument could fulfil the role of a substantive global environmental constitution in the present time of climate crisis? The discussion commences with a brief reflection on some of the juridical dimensions of the Anthropocene’s climate crisis, while also outlining why a global environmental constitutional approach could be useful for addressing this crisis. The next part analyses four potential candidates that could serve as a global environmental constitution for the Anthropocene’s climate crisis. These include the World Charter for Nature of 1982; the Earth Charter of 2000; the World Conservation Union Draft Covenant of 2010; and the recent Global Pact for the Environment of 2017. The remainder of the chapter then critically evaluates the potential of each of these instruments to be or to become a global environmental constitution, either in their present or possibly an amended form.

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Klaus Bosselmann

Current climate governance is severely hampered by the dominance of national interests over global interests. The dominance is largely politically motivated, but also has a systemic dimension as manifest in the conventional concept of state sovereignty. Fiduciary obligations of the nation state cannot be restricted to its citizens in areas that affect all humans alike and regardless of their citizenship. Climate change responsibilities will be effective only if understood as legal obligations of the sovereign state. This requires the recognition of the atmosphere as a global commons.

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José Rubens Morato Leite and Patryck de Araujo Ayala

In a society of global risks, caring for nature is just one of the many tasks assigned to the rule of law, which is required to respect plural values. This chapter aims to demonstrate that if nature is indeed one of the relevant values of our plural and global society, and if the protection of nature is and must be a value of global relevance in different legal orders and their constitutional projects, achieving these objectives will require us to address at least three challenges aimed at transforming the established relationship between the law – through a certain model of constitutionalism – and nature. Accordingly, a constitutionalism devoted to protecting nature depends on: (1) a rule of law which considers that people are not paramount; (2) recognition that people, nature and all forms of life have value for the purpose of their protection and; (3) an awareness that the protection of nature is not a moral or ethical goal in global societies, but rather a problem of justice – ecological justice. Faced with these challenges, the so-called ‘constitutionalism of the Earth’ presents itself as an alternative way to approach law and nature within the framework of global constitutional dialogues. This path can be constructed by consideration of the principle of ecological integrity both by the courts and in national and international normative production.

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José Manuel Pureza

The concept of global constitutionalism can serve as either a strategy for the selective reinforcement of the legal pillars of neoliberalism or a strategy for the reinforcement of a comprehensive catalogue of rights and policies of inter- and intra-generational equity. As an empty concept per se, it demands a critical approach to identify the concrete political choices it informs in each concrete situation.

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Karen Morrow

The burgeoning climate change crisis is, understandably, spurring efforts to press human rights law into service to address some of its manifest impacts on people. This approach is, however, subject to inherent limitations – above all, the inevitably anthropocentric nature of human rights law means that, significant as it may prove, it cannot adequately carry the burden of addressing anthropogenic climate change. The shortcomings of existing approaches to law and policy in addressing this ‘super-wicked’ problem mean that a pernicious disengagement with issues must be addressed. In this context, where cumulative human activity is now recognised as posing an existential threat, finding new ways to conceive the human/environment relationship become imperative. Giving effect to the juxtaposition between human rights and human responsibility offers one potential route to do so. Meaningfully progressing human responsibility beyond the conceptual in international environmental law has, however, proven highly problematic. To revivify the debate, this chapter probes the possibilities of applying an eco-feminist-framed, ecologically informed iteration of the responsibility-rooted feminist ethics of care as a foundation for refashioning the human/environment relationship in a grounded, holistic and sustainable fashion, more fit to address the challenges we now face.

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Amy Sinden

Calls for recognition of a human right to security from climate disruption have become more common, from both courts and scholars. But such a right has a far better chance of being effective – substantively and rhetorically – if grounded in the civil and political rights tradition, rather than the second or third-generation rights of the post-Second World War era. This chapter begins to sketch out some arguments that would situate a human right to climate security squarely in the civil and political rights tradition by connecting that new right to the fundamental values and concerns that have always animated that tradition. Whether one views those values as centrally concerned with the maintenance of individual autonomy and dignity or with protecting the integrity of the democratic process, civil and political rights are at bottom a response to power imbalance. While many twentieth century theorists have understandably focused on the power imbalance most emblematic of that century’s central moral challenge (that fuelled by prejudice), in constructing a human right for the twenty-first century, we should broaden that lens to encompass the other forms of power imbalance driving the climate crisis: between wealthy corporate interests and the poor and powerless; between us and future generations or other species; and between the functioning governments of the globe that possess the unique power to tackle this textbook collective action problem and individual citizens.

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Bharat H. Desai and Balraj K. Sidhu

Climate change has emerged as one of the pre-eminent environmental challenges at a global level. Its characterization as a ‘common concern’ of humankind by the United Nations General Assembly (Res A/RES/43/53 of 1988) has brought it to special attention in the international law-making process. Endeavours over the past three decades provide us with some lessons in normative process at work to address this crucial issue. The incorporation of criteria of ‘differentiation’ in the regulatory technique enshrined in the 1992 UN Framework Convention on Climate Change is significant in the climate context. But has the 2015 Paris Agreement diluted this key characteristic of the climate change regime? The uniqueness of the climate change challenge raises questions as regards the largely ‘transboundary’ context in which inter-governmental negotiations on environmental issues take place. The processes at work, as well as the tools, techniques and terminology used and the institutional framework within which these processes take place, provide lessons for the development of a larger corpus of multilateral environmental agreements designed in the ‘framework convention’ mode, and for their utility and effectiveness in achieving their objectives. Can any specific pattern in the international law-making process be discerned? It is in this context that the chapter seeks to examine some legal issues.