There is no easy solution to overcoming this tragedy, but a better design of our current system of law and governance seems inevitable. As a first step, we need acceptance that there is a design flaw in the current system of global governance. The design flaw is twofold. The first flaw can be described as the paradox of sovereignty.2 It lies in the fact that states must be able of binding themselves to validate international law, but also be incapable of being bound to maintain their sovereignty. Conventionally, this paradox can either be ignored as not practically existing or seen as solvable through ongoing consensus-building between states. However, this does not work for matters that are global by nature and require urgent action.
That is why the UN system provides for urgent action authorized by the Security Council, for example, with respect to preventing war, genocide, and other imminent disasters. The issue here is not the effectiveness, or lack of it, of the UN Security Council, but the blindness of the UN system towards ecological disasters. These tend to unfold slowly, yet when their full scale is realized, it is typically too late. States become mere bystanders in a situation where the urgency of environmental problems such as climate change is obvious. This calls for a legally binding obligation to act once the precautionary principle is triggered, but such an obligation does not currently exist, not to mention the notorious lack of enforceability. Significantly, Article 3.3 of the 1992 UN Framework Convention on Climate Change stated that the Parties “should”, not “must”, take precautionary measures to anticipate, prevent or minimize the causes of climate change. And the 2015 Paris Agreement does not even mention the precautionary principle or precautionary measures. In the Anthropocene, the design flaw of lacking state obligations to protect the global environment will even more so lead to uncontrollable developments and ultimate disaster.
This brings us to the second, even greater design flaw of the current system of international law with its roots in Western epistemology. It is the assumption that humans are somehow separate from nature. We are not. Nature is not an assembly of natural resources made for human consumption, but a complex interconnected ecological system, called Earth, that humans are part of and need to respect.
The Covid-19 pandemic is a poignant reminder of this and so is climate change in its interconnections with the oceans and biological diversity. We will not be able to tackle climate change without simultaneously addressing the alarming acidification of oceans and the dramatic loss of biodiversity, both losing their functions as carbon sinks and climate stabilizers. Likewise, reversing biodiversity loss and halting acidification are illusionary under the conditions of runaway global warming. In short, an Earth system approach is required for better design of law and governance. In its Preamble, the 2015 Paris Agreement notes “the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth”. But this has, so far, remained a mere sentiment without tangible action.