Sustainability: can law meet the challenge?

AuthorBratspies, Rebecca M.

It is commonplace to note that the world is experiencing an unprecedented rate of change. (1) The "boundary shattering force[s]" (2) of globalized markets and new technologies are likely to continue smashing through pre-existing social and political fault lines for the foreseeable future. This rate of change has significant ramifications for the sustainability of human society. Indeed, making the transition to a sustainable society may be the greatest challenge that we face as a species. The role of law, and lawyers, in that process has yet to be determined. This essay argues that law can be a tool for encouraging that transition to sustainability.

Globalization is often touted as promoting global economic growth, lowering prices for consumers, and creating the conditions for democracy and peace around the world. (3) At the same time, it is also demonized as being "wonderful for managers and investors, but hell on workers and nature" (4) thus creating a global race to the bottom for wages, safety, and environmental protection. (5)

There is surely some truth to both pictures of globalization. I am not here to take a position on that perennial debate. Instead, I want to direct your attention to a particular set of sustainability challenges that are exacerbated by globalization, but can only be addressed through global solutions.

Part I of this article will briefly sketch the scope and scale of the sustainability challenges we face. Part H describes how international law to date has responded to those challenges. Part III then highlights two structural problems with the existing international law approaches to sustainability. Finally, Part IV proposes some possible solutions and identifies emerging trends toward incorporating those solutions into international law.

  1. SCOPE AND SCALE OF THE PROBLEM

    The world's human population is expecting a 3 billion person increase within the next 50 years to 9.2 billion people. (6) That means the world population will triple in the hundred year period over 1950-2050. (7) Today's human population of 6.8 billion persons already has an ecological footprint significantly larger than the earth itself. Indeed, the Global Footprint Network reports that humanity's current ecological footprint is 1.5 planets--half a planet more than earth. (8)

    This mismatch between our supply of worlds to inhabit and exploit and our ecological footprint is stark. It means that, as a species, we are consuming more resources each year than the earth can generate and producing more waste than the earth can absorb. (9) We are fouling our nest. Even worse, we are doing this while 40% of the earth's current population (2.6 billion people) struggle to survive who are living on the equivalent of $2.00 or less per day. (10) The number of people facing chronic hunger rose to a record 1 billion in 2009. (11) At the same time, an overwhelming majority of the world's fisheries are either fully exploited or overfished. (12) Additionally, we are losing biodiversity (12) and forests (14) at an alarming rate.

    Human demands on the world's biocapacity have more than doubled since 1961. (15) In 2007, humanity consumed the resources equivalent to 1.5 planet Earths to support its activities. (16) Imagine our ecological footprint if those suffering from food insecurity and those living in abject poverty had access to more resources. Americans amount to about 5% of the world's population, but consume 25% of the total energy. (17) Overall, the per person resource demand in the United States is roughly twice the bio-capacity of the country. (18) If the world's total population all lived the lives of middle-class Americans, we would need at least four planet Earths to meet the sum total of those resource demands (19)--and that is without allocating any share of the resources of those four Earths (such as food, water, and space) to other species. Obviously, we only have one world, and we share it not only with each other but with countless other species.

    We are literally poisoning our world. In just the past few years, we have been inundated with headlines such as: "Ecological Catastrophe: Hungary Toxic Spill Kills Four, State of Emergency Declared" (Budapest), (20) "Nightmare before Christmas: Coal Sludge spill 50X worse than Exxon Valdez" (Tennessee), (21) and "America's Gulf: A Toxic Crime Scene" (Baltimore). (22) Unfortunately, the list goes on.

    These accute crises might be frightening and dangerous, but they are just the tip of the iceberg. A recent UN commission reported that every year, the world's 3000 largest companies cause an estimated $2.2 trillion dollars in environmental damages. (23) For perspective, that figure exceeds the individual GDP of every county except five: the United States, Japan, China, Germany, and France. (24)

    Around the world, firms are continually generating stockpiles of dangerous, often poorly stored wastes--the byproducts of dangerous, unsustainable production methods. Unless there is a spill, these stockpiles are typically accumulated without fanfare, and often without the knowledge of those living nearby. (25) Sometimes, local or national authorities regulate the stockpiling process, but sometimes they do not. Furthermore, even in places with significant regulatory systems, violations are legion. The toxic legacy tends to come to light only after a firm has shut its doors and moved on, leaving behind an unknown, unseen time bomb. (26) Even in the Arctic, about as remote and far from industrial production as one can get on this planet, many Inuit mothers have unsafe levels of persistent organic pollutants in their breast milk. (27)

    At the same time that Inuit mothers are on the receiving end of a global pollution distribution system, they are also bearing the brunt of other unsustainable choices made elsewhere. Carbon levels are rising in the atmosphere, changing our global climate in unpredictable ways. (28) The Arctic climate is changing even more rapidly than the rest of the world, (29) with summer ice currently only a fraction of historical levels. (30) Belying its name, permafrost is melting, (31) and indigenous groups complain that their environment has "become a stranger" (32) that no longer corresponds to traditional knowledge built up over millennia. The U.S. Geological Survey estimates that the Arctic might be ice free by the summer of 2050. (33) Polar bears, (34) Pacific walruses, (35) and a host of less familiar species face an increasing risk of extinction. (36)

    The longer we refuse to face the facts about climate change, the fewer options we will have and the more we risk jeopardizing our security, our prosperity, our health, and even our lives. Carbon dioxide levels in the atmosphere are already above 350 ppm. (37) Other key greenhouse gases remain well above any of the levels documented for the 650,000 years before the Industrial Revolution. (38) Droughts, more severe storms, and changing rainfall patterns make food production less predictable at the precise moment an increasing population and a growing interest in biofuel is spurring demand. (39) Researchers recently reported that changing environmental conditions--most specifically in the climate change--have eroded rice yields by 15 percent from the 1960s level. (40) Given that the rice strain evaluated is widely credited with launching the green revolution, the significance of this finding cannot be overstated: it may be a harbinger of the end of relying on technology as a solution to increasing food production.

    The complexity of the sustainability problem is daunting. The multiple interdependencies and the varying levels of uncertainty, not to mention the multitude of stakeholders with conflicting short and long-term interests, make responding to the sustainability challenge extraordinarily difficult. The temporal and spatial reach of the needed changes reach every aspect of society.

    These kinds of thorny public-policy dilemmas have an evocative name as they are often called "wicked" problems. (41) A wicked problem is one that is reflexive, (42) meaning that each attempt to create a solution actually changes the way the problem is understood and perceived. (43) In other words, coming up with new possible solutions causes the very definition of the problem to change. Moreover, wicked problems lack a definite formulation, lack a clear set of possible solutions, and offer no obvious means of determining whether or not the problem has been resolved. (44)

    Sustainability is a particularly wicked problem, in part because of the lack of an institutional framework capable of developing, implementing, and coordinating the responses necessary to address the problem. As a result, sustainability, like climate change, can be characterized as a "super wicked" problem. (45) A "super wicked" problem has all the attributes of a wicked problem but also has a few specific additional characteristics, including a clear indication that time is running out, the lack of any central authority, the confounding factor that those seeking to solve the problem are also causing it, and hyperbolic discounting. (46)

    Given the tremendous spatial and temporal scope of unsustainable practices, if law is to give us that framework it must be stretched past its usual contours to confront the "super wicked" nature of the problem. The outdated thinking that divides law into international law, which governs the relationship between states, and domestic law, which governs within states, must give way to a more integrated vision. Sustainability is ultimately a global problem. The destruction of the ozone layer, climate change, ocean acidification, deforestation, overpopulation, and plummeting biodiversity do not just affect one, or even a group of nation states, they affect the entire world simultaneously. The threats are global and the solutions will need to be similarly global. Coordinated action between all or most states, as well as between states...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT