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Nexus governance recognises that sustainability concerns such as water, energy, and food security are interlinked and provides an alternative to fragmented governance. Although it has been applied mostly in the domestic context, the need for nexus governance is also apparent at a planetary scale, as highlighted by interacting planetary boundaries, global telecoupling, and global tipping cascades. However, international environmental law is unable to facilitate what we call ‘planetary nexus governance’. This is mainly because international environmental law lacks an ecological Grundnorm and because its primary rules of conduct remain fragmented in the absence of effective secondary rules on how primary rules should relate to each other. Recognising this challenge, scholars have recently proposed earth system law as a new framework to rethink, in an integrated way, law in an Anthropocene context. Building on this framework, we suggest that international environmental law should adopt a unifying Grundnorm such as planetary integrity. We also suggest that international institutional law, as a body of secondary rules, has an important role to play in facilitating planetary nexus governance by bringing together fragmented bodies of international law. We briefly discuss ways in which international environmental law could reorientate itself to better facilitate planetary nexus governance.

In this article we argue that international environmental law cannot continue to exist in its present form for the purpose of the Anthropocene. We show that analytically, international environmental law and its lawyers are unable to fully understand and respond to the complex governance challenges arising from a complex Earth system. Normatively, international environmental law has failed to provide appropriate norms to prevent humans from encroaching on Earth system limits. In a transformative sense, international environmental law has not been sufficiently ambitious to achieve the type of radical transformations necessary to ensure planetary integrity and socio-ecological justice. We need a new legal paradigm that is better suited for the purpose of the Anthropocene that must address international environmental law’s analytical, normative and transformative concerns. We call this new paradigm earth system law. Building on our recent work, we offer here some preliminary thoughts about what we think the analytical, normative, and transformative dimensions of earth system law could and should entail, and why they would be more appropriate for the purpose of governing a complex Earth system in the Anthropocene.

Scholarship increasingly reveals the distinct interplay between international environmental law and domestic legal systems, and the important role of courts the world over in fleshing out this relationship. Africa, however, seems to be underrepresented in these discussions, despite its being a key stakeholder in the development of international environmental law. As a contribution to this debate, we offer here an analysis of the relationship between international environmental law and domestic African legal systems, by focusing on how domestic courts in Kenya and South Africa have been engaging with the precautionary principle, the principle of public participation and the principle of sustainable development. Our analysis of a range of judgments shows that these courts have been exceptionally innovative in their growing support of these principles that they seem to embrace in their efforts to strengthen domestic environmental protection and to contribute to a nascent transnational judicial dialogue.

In this paper, we focus on the structural complicity of international environmental law (IEL) in causing and exacerbating climate injustices. We aim to show that although the intentions behind IEL may be well-meaning, it often inadvertently, but also deliberately at times, plays a role in creating, sustaining and exacerbating the many paradigms that drive climate injustice in the Anthropocene. We focus on three aspects: IEL’s neoliberal anthropocentrism; its entanglement with (neo)colonialism; and its entrenchment of the sovereign right to exploit energy resources. We conclude with a call for thoroughgoing, and urgent, reform of IEL. En este artículo, nos centramos en la complicidad estructural del derecho ambiental internacional (DAI) en el origen y la exacerbación de injusticias climáticas. Pretendemos mostrar que, pese a que las intenciones detrás del DAI puedan ser buenas, frecuentemente de forma inadvertida, pero a veces también deliberadamente, desempeña un papel en el origen, el mantenimiento y el agravamiento de muchos paradigmas que dirigen la injusticia climática en el Antropoceno. Nos centramos en tres aspectos: el antropocentrismo neoliberal del DAI; su implicación con el (neo)colonialismo; y su reforzamiento del derecho soberano a explotar recursos energéticos. Concluimos con una llamada a una reforma integral y urgente del DAI. Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-1140

Despite its noble intentions and some victories, environmental law has been and continues to be complicit in driving the processes and paradigms that give rise to the Anthropocene. Environmental law is also unable to respond to the regulatory challenges that arise from the Anthropocene’s complex Earth system. We need a new legal paradigm that is better fit for purpose in the Anthropocene called Earth system law. A key reason for environmental law’s failures and an obstacle preventing its transformation, is its reluctance to embrace and respond to the notion of the Earth system. My hypothesis is that the Earth system metaphor should be key in rethinking environmental law with the ultimate view to constructing Earth system law for the Anthropocene. The primary purpose of this paper is to explore what the Earth system metaphor entails and what it might imply for environmental law’s transformation to Earth system law.

The need to address climate and environmental change becomes ever more urgent as climate harms and ecological destruction intensify and become more frequent. The articles in this issue emerged from a workshop in 2019, and they explore the multi-faceted nature of climate justice against the backdrop of the Anthropocene trope. The articles address specific issues such as corporate responsibility, the plight of farmers in India, climate displacement, and gender justice. In doing so, they reveal common themes such as the limitations and failings of business as usual and law as usual, the centrality of human rights and vulnerability theory in the pursuit of climate justice, the indivisibility of justice, and alternatives ways of achieving it.

We need a new legal paradigm for the Anthropocene. This paradigm is called earth system law. Building on ongoing earth system law-related research, this chapter uses the city as a ‘laboratory’ to interrogate the deficiencies of current law and governance arrangements that mediate the place of humans in, and their impacts on, the Earth system. It then seeks to reimagine these law and governance arrangements through an urban lens, with the view to proposing thoroughgoing legal reforms alongside an Earth system perspective. The potential of cities to steer the development of earth system law for the Anthropocene is highlighted throughout the discussion.

This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.

Despite important victories, human rights have been unable to respond effectively to the many deeply intertwined socio-ecological injustices in the Anthropocene. In particular, human rights have failed to practically address, in a meaningful way, the plights of billions of oppressed human beings (and failed to address the vulnerability of non-human beings), while conceptually human rights are proving to be ill-suited for the epistemic demands of the Anthropocene. As a trope, the Anthropocene presents an opportunity to re-interrogate the role of human rights as key mechanisms in the state's regulatory mix to address socio-ecological injustices arising within the context of a vulnerable Earth system. This article reflects upon whether a re-interrogation could be accomplished by utilizing vulnerability theory, which is an alternative approach to ethical evaluation. As a heuristic, vulnerability has the potential to inform an ontological change of stance away from a human-centred, neoliberal, and impregnably Western understanding of human rights, towards an altogether more porous and contingent understanding of the vulnerability of the entire living order as a starting point from which to critique the epistemological closures and regulatory challenges confronting the human rights paradigm in the Anthropocene.

In the Anthropocene the loss of biodiversity is set to become increasingly critical. Our law and governance institutions have been unable to halt this worrying trend. One of the reasons for this regulatory deficiency is that global law and governance pertaining to biodiversity are fragmented. In response to the need for a greater integration of law and governance directed at the protection of an integrated biosphere and as a measure to counter fragmentation, we argue that global biodiversity law and governance should be based on the connectivity conservation approach. While the debate about connectivity could occur in various geographical contexts, we focus for our present purposes on regional biodiversity governance in Southern Africa. It is our central hypothesis that adopting a holistic approach to biodiversity conservation in this region might go a long way towards preventing the human encroachment on biodiversity that typifies the Anthropocene.

Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law in which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.

Review of Comparative and International Environmental Law

Environmental law in South Africa has developed in a rapid fashion since the inception of the new constitutional dispensation in 1994. This development is evident from, inter alia, the constitutionalisation of the environmental right in section 24 of the Constitution of the Republic of South Africa, 1996. Section 24 contains amongst other provisions, directive principles that impose duties on government to protect the environment for present and future generations through reasonable legislative and other measures. It is apparent from section 24 that these measures should ensure environmental governance practices that are aimed at the achievement of sustainable results. The South African environmental governance regime is, however, characterised by fragmentation that may negate the achievement of sustainable environmental governance. It is argued in this article that, for environmental governance to become sustainable, it is necessary to integrate environmental governance efforts, possibly by way of a holistic approach to environmental governance. In light of the above, this article: investigates the nature and extent of fragmentation; explores reasons for fragmentation; discusses disadvantages of fragmented governance efforts in South Africa; investigates the concept of integration and holistic governance as means to achieve sustainable environmental governance results; and makes recommendations regarding the eventual achievement of integrated, holistic and sustainable environmental governance.

Administrative law, and more specifically administrative justice, is becoming increasingly important in the context of environmental law. The enforcement of environmental law depends to a large extent on administrative decision-making by environmental authorities. A developer who whishes to undertake a development activity that may have a detrimental effect on the environment, will require an environmental authorization that must be granted by the relevant environmental authority. There may be certain instance where the application for such an authorization is unduly delayed, or where there are mala fides on the part of the relevant authority. This may inevitably infringe the right of the developer to, inter alia, administrative justice. It is argued in this article that the developer has certain constitutional rights which can be invoked when dealing with environmental authorities. Hence, the discussion in this article focuses on the relationship between administrative justice and environmental governance; the constitutional rights of the developer; and recent case law that supports the proposal that the developer has legal recourse when her right to administrative justice has been infringed.

Against the backdrop of the content and specific obligations arising from the right to water in international law, this article compares how the legal regimes in Finland and South Africa protect the right to water. The discussion shows that both countries provide two extensive and very different constitutional frameworks to regulate the right to water. Variances in approach at the domestic level is attributed to differences in legal cultures, hydrological circumstances and stages of socioeconomic development. It is argued that diverse development challenges may justify the need for different legislative and other measures to realise the right to water at the domestic level.

Today, numerous constitutions provide for a rights-based approach to environmental protection. Based as they are on an instrumentalist rationality that seeks to promote human entitlements to nature, the majority of these rights remain anthropocentric. Although there are growing calls within academic and activist circles to reorient rights alongside an ecocentric ontology, only one country to date has taken the bold step to bestow rights on nature in its constitution. The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric orientation to an ecocentric position by recognizing enforceable rights of nature. This article critically reflects on the legal significance of granting rights to nature, with specific reference to Ecuador’s constitutional experiment. It first provides a contextual description of rights in an attempt to illustrate their anthropogenic genesis, and then explores the notion of environmental rights. The following part traces the discourse that has developed over the years in relation to the rights of nature by revealing aspects of an ecocentric counter-narrative. The final part focuses specifically on the Ecuadorian constitutional regime and provides (i) a historical-contextual discussion of the events that led to the adoption of the rights of nature; (ii) an analysis of the constitutional provisions directly and indirectly related to the rights of nature; and (iii) a critical appraisal of whether those provisions, so far, measure up to the rhetoric of constitutional ecocentric rights of nature in that country.

In this chapter, we investigate African regional human rights law, with specific reference to the environmental right in the African Charter on Human and Peoples Rights, 1981 (ACHPR) and corresponding jurisprudence that might reveal the manifestation of standards related to a) the environment envisaged in this right, and b) the manner in which this right must be respected, protected, promoted and fulfilled. Where appropriate, we also refer to domestic environment-related rights provisions in some African countries in order to contextualise the analysis of African regional law and to illustrate, briefly, how its plays out at the domestic level.

Law has failed to address the ever-deepening socio-ecological crisis of the Anthropocene. In the light of, and as a response to, law’s failures in this respect, this paper argues in support of developing a new legal paradigm for the Anthropocene epoch called Earth system law. It does so first by briefly describing the Anthropocene trope and the extent and dimensions of its socio-ecological crisis. The paper then specifically focuses on international environmental law as an example of how and why law has become incapable of, and inappropriate for, addressing this crisis, and for being unable to respond to the Anthropocene’s regulatory demands. By drawing on three Earth system-related regulatory implications of the Anthropocene trope (i.e., inclusivity, interdependencies and complexity), the final part of the paper makes out a case in support of reforming law and creating a new Earth system oriented legal paradigm that is fit for purpose in the Anthropocene epoch.

International environmental law (IEL) has been unable to respond effectively to the Anthropocene’s global socio-ecological crisis, which is critically existential and requires radical interventions and regulatory reform. This article explores the potential of the recent United Nations (UN)-backed initiative to adopt a Global Pact for the Environment as an opportunity to reform IEL. It does so by (i) reflecting on the Anthropocene’s demands for a constitutionalized form of IEL through the lens of global environmental constitutionalism; (ii) investigating the extent to which the Global Pact could contribute to such a vision; and (iii) suggesting ways in which to strengthen the constitutional potential of the Global Pact in this endeavour. To this end, the article revisits the World Charter for Nature of 1982, which seems to have slipped off the radar in academic as well as policy circles. A case is made for renewed support of the Charter – which already enjoys the backing of the majority of UN General Assembly member states, and which has constitutional qualities – to serve as a ‘best-practice’ example during the ensuing negotiation of the Global Pact.

While the right to water is recognized as a human right, its precise legal implications remain unclear. This article discusses obligations related to the right to water in the constitutional contexts of Finland and South Africa by using a specific framework of obligations. It argues that the right to water first and foremost obligates public authorities to realize the right as best they can and not to lower the level achieved. Despite different legal systems, cultures, levels of development and contexts, the right to water can be sufficiently realized in various ways unique to a specific country.

In this article we explore the extent to which the South African mining industry can contribute to realising positive obligations stemming from socio-economic rights, and in particular, the right of access to water. Our hypothesis is that government, as the primary addressee of socio-economic rights obligations, is unable fully and on its own to realise the right of access to water in South Africa. Because of the ecological impact of mines on water resources and resultant socio-economic externalities that are passed on to society, we argue that mines must contribute to the South African transformative constitutional agenda by realising, albeit in a limited way, positive obligations related to the right of access to water. Our analysis is situated at the interface of three conceptual frameworks within which we theoretically embed the inquiry: the movement from government to governance and the involvement of non-state actors in governance tasks, corporate social responsibility, and human rights obligations ...

The word Anthropocene describes a new geological epoch that follows the Holocene epoch. It is the signifier of the period in which people have a devastating and overwhelming impact on the earth and its systems. The Anthropocene also describes the new context in which we are going to have to consider how we should deal with the effects of global anthropogenic ecological change, including how we think about natural resources and energy security. This will require new perspectives on and reimagining orthodox social institutional constructs such as global environmental law and governance, among others, and their ability to successfully mediate the human-environment interface. This article reflects on how we will have to rethink global environmental law and governance as a result of the Anthropocene. It specifically attempts to identify a host of considerations that environmental lawyers, including those who focus on natural resources and energy law, will have to contemplate if global environmental law and gov...

The current global environmental law and governance regime has been designed primarily to attend to the worsening ecological crisis. Evidence, however, suggests that the regime is far from achieving its goal and it is failing in its efforts to solve what people perceive to be pervasive global environmental problems. There is little doubt that this regime is in need of urgent reforms and/or re-situation in a decidedly different paradigm. This article proposes that global constitutionalism, while no panacea, could contribute to these paradigm-shifting reforms by providing a new perspective through which to view the current deficient global environmental law and governance regime and, in real terms, ameliorating some of the deficiencies of the regime through a normative process of constitutionalization.

South Africa is a water-stressed country where scarce water resources are unequally available to South Africans. It seems inevitable that climate change will in future severely affect the availability of water resources and the ecological and socio-economic aspects of water uses in the country. It is especially the poor, indigent and marginalized sectors of the population that have inadequate access to water and it is these people who would also be most severely affected by the impact of climate change on water resources. While South African constitutional and statutory provisions guarantee everyone access to sufficient water, an environmental right and other laws simultaneously aim to protect water resources. There is accordingly a very real possibility for sustainability conflicts to arise where difficult decisions have to be made with respect to providing people access to sufficient water on the one hand and protecting water resources for the benefit of present and future generations on the other. The latter conflict was recently illustrated in the Constitutional Court judgment of Mazibuko v City of Johannesburg 2009 JDR 1030 (CC). For the first time, South Africa’s highest Court was required to provide content to the constitutionally entrenched right of access to sufficient water. Against a general discussion of the state of water resources in South Africa, the predicted impact of climate change on these resources and the prevailing socio-economic conditions in the country, this article analyses the Court’s decision in Mazibuko and argues that its restrictive interpretation of the right to access to water could be considered ecologically responsible and conducive to achieving inter-generational equity.

The 1996 Constitution of the Republic of South Africa explicitly provides for a comprehensive environmental right. The environmental right is part of the supreme law of the country and the entire environmental law regime. South Africa also has a vigilant judiciary, which has had various opportunities to interpret and give meaning to the environmental right. This article explores the manner in which the environmental right has been interpreted, translated and applied by the judiciary over the past 10 years. The article briefly analyses the environmental right, investigates recent judgments that reflected on the right, and concludes with a critical survey and suggestions as to future developments in this regard.

This study brings the debate upon environmental protection in the Republic of South Africa since the 1996 Constitution enactment which conformed it as a justifiable human right. The contribution begins with some considerations about (in) the development of the environmental right. The more pertinent constitutional provisions related to the environment are discussed, and there are some remarks about future developments in this field.

The gradual rise of ‘environmental constitutionalism’ in scholarly debates suggests a deliberate, albeit (still) hesitant, attempt to view anew the human rights–environment debate through a constitutional lens. While this reignited interest seems to depart from a more environment-focused and tailor-made constitutional approach (i.e., environmental constitutionalism), one has to ask: is environmental constitutionalism merely a new label for an old phenomenon (i.e., constitutionalism); or does it actually bring something new to the table? More importantly: is this new scholarly term of art useful to the human rights–environment debate? In an effort to contribute to the young but evolving discourse on environmental constitutionalism, this Chapter seeks to commence a normative-conceptual enquiry focused on answering these questions.

Acid mine drainage (AMD) is arguably one of the most serious environmental concerns in South Africa. AMD is a legacy left behind by abandoned, derelict and defunct mines, and is a continuing by-product of existing mining activities. In addition to its environmental impacts, AMD will also impact on all the parameters of sustainability, including ecological, social and economic concerns. In particular, AMD is set to affect infrastructure, displace people and affect their livelihoods, influence economic activity, impact on the resource extraction industry, and affect South Africa's policies and actions in relation to climate change and its efforts to move towards a low carbon economy; and it will test the efficiency of regulatory interventions emanating from both the private and the public sector to the extreme. Given these pervasive challenges, in this article we provide a survey of the AMD problem in South Africa through the law and governance lens. We commence by highlighting the various issues and challenges that result from AMD in the environmental context on the one hand, and the law and governance context on the other hand. We then describe the many provisions of the regulatory framework that we believe would be instrumental in responding to the threat. We conclude the article with brief remarks on what we believe are important considerations in the future regulation of AMD.KEYWORDS: acid mine drainage; environment; mining; environmental law; environmental governance; water pollution; environmental right; sustainable development; Constitution; National Water Act; National Environmental Management Act; National Environmental Management: Waste Act.

South Africa became a signatory to and ratified the World Heritage Convention , 1972 (WHC) in 1997. It thereby voluntarily agreed to identify and conserve world heritage areas of universal value for the benefit of mankind. This article presents a case study of the Vredefort Dome, one of South Africa\'s World Heritage Sites (WHS) and specifically its governance strategies to ensure proper and sustainable governance. Firstly, the issue of fragmentation of the environmental governance regime applicable to WHS is discussed, and in doing so, refers to the various legislative and common law responsibilities and institutional structures related to environmental governance of WHS. Secondly, it briefly discusses the concept of good governance and the concept of cooperative governance as a sub-component of good governance. Finally it comprehensively proposes various strategies to ameliorate the current fragmented and unsustainable environmental governance effort relating to WHS. PER/PELJ Vol. 2 2008: pp. 1-53

South Africa is internationally renowned for its rich biodiversity heritage that comprises, amongst others, many endemic animals and birds, an abundance of marine biodiversity and a large diversity of flora populations.1 These biodiversity resources are however under continual threat of exploitation and extinction. Moreover, South Africa is in the process of social, developmental and economical reconstruction and upliftment. These considerations may place an additional burden on biodiversity resources if the developmental needs of society are not balanced harmoniously with the conservation needs of the environment in general, and biodiversity resources in particular.

In May 2018 the process which may ultimately lead to the negotiation of a legally binding Global Pact for the Environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles ; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance; and b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact’s primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broad-sweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.