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Nicholls, Shane D --- "The global covenant: the Earth Charter and the concept of covenants in international law and environmental governance" [2010] NZJlEnvLaw 5; (2010) 14 NZJEL 103

Last Updated: 30 January 2023


The Global Covenant:

The Earth Charter and the Concept of Covenants in International Law and

Environmental Governance

Shane D Nicholls*

Sustainable development, and the general theory of sustainability in environmental governance, has reached a point where humankind, as the Earth’s stewards, chooses between State-based fragmentation and a human-based “moral” code. The inability of international law to create a truly sustainable system between consumption and progress and the protection of global resources for future generations has never been more apparent than today. We are in a time of such technology that communication is available to almost everyone and what once was a localised problem is now a global one. Throughout the best part of last century international law has attempted to contain progress to a point where what we consume is limited by the resources available. A yardstick is missing by which we can judge what is consumed or is protected for future generations. We look to the Rio Declaration and the Stockholm Convention as paving the way for international law to reflect the global community’s need to legislate on sustainability. We have underestimated, however, the very nature of State-based sovereignty, which forms the basis of international law, and may be the very reason for the failing of any internationally enforced environmental code of conduct. On this ground we have witnessed a rise in the global community’s desire to

*Shane Nicholls LLB, LLM (Env) (Auckland). Email: The article was presented as a paper as part of the postgraduate programme at the University of Auckland. Shane is a practising lawyer living in Auckland. He has maintained an active interest in studying the development of international environmental law and global civil governance and has contributed to the 2010 publication The Earth Charter: A Framework for Global Governance (KIT Publishing).

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self-govern without the direct need to have enforceable international law as a deterrent to the global citizen’s behaviour. The Earth Charter has emerged as the moral code that may have the ability to govern environmental and social conduct successfully, where international law cannot. What the Earth Charter seeks to achieve is the introduction of an inclusive and non-discriminatory code based on the concept of “the global covenant”. In effect, the Charter forms governing principles that withstand international conflict and State-based disputes — a “moral code” that depends not on what is written but on the desire of the individual to adhere to what they believe is fundamental to humankind’s indefinite survival. This article looks at how the concept of a “moral code” for global civil governance has the ability to override what civilisation and State sovereignty was built on: codified law. How does an appeal to one’s ethics overcome cultural, social, economic and political divides to effectively govern on an international scale? That humans have moral and ethical codes on which they base their daily conduct is beyond doubt, but how these codes translate to a consensus in international governance is the question that remains unanswered.


In this time of virtually unlimited access to technology, science, travel and human expression, we should be fully aware of our existence and the Earth’s capacity to sustain all life; instead we find ourselves searching for a solution to an almost overwhelming number of potentially devastating environmental, social and economic problems, so interconnected and one equally as important as the other. We stand in a confusing time: international law represents unity, yet its desire for diplomacy drives people apart; we pursue individual wealth through global trade, yet baulk at contracts to bind our environmental impact; we want freedom, yet we want to control the freedom of another if it does not resemble a popular value. We live in a time of hypocrisy, where we depend on the well-being of the planet for physical survival and economic wealth, yet we resist law and ethics that seek to protect such a resource for future generations; and we seek to promote social equality in developing nations, yet if all 6.5 billion people lived like we do, there would be nothing left. Yes, we live in a time of hypocrisy, so what can we do?

For all the international treaties, declarations, protocols, conferences; the Montreal Protocol reducing chlorofluorocarbons (“CFCs”), the Stockholm Convention establishing the principle of sustainable development as the key

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to environmental and social survival; through to the Rio Declaration, Agenda 21 and the Kyoto Protocol on the global reduction of carbon emissions, we see an international State-centric response through international agreements as well as the role of NGOs and civil society in lobbying. What is also clear, however, is that civil society is competing with the other fundamental “rights” of democracy, individual rights, economic freedom and trade incentives in developed and developing countries. For the best part of the 20th century we have been encouraged through free trade to compete with each other for material goods. This is the primary function of western State actors today — to protect the well-being of their citizens and businesses — which in today’s ethic, means economic wealth or at least the “freedom” to pursue it. So is this our only ethic? Is this what drives everyone? There is a growing voice that says no. As civil society we see the bigger picture — that everyone has the unique ability to judge the importance of environmental sustainability and equal development for poorer countries; that we can use procedural democracy to have our voice heard over traditional free-market rights and overconsumption. This is the goal of the Earth Charter — to encompass the inherent values across humanity’s diversity in religion, culture and territory to reach a democratic voice and universal agenda of mutual understanding. As Engel writes in relation

to the universal democratic tradition:1

... the covenantal activities of promise-making, promise-keeping, and forgiveness of broken promises made by free and equal citizens in self- governing communities are an authentic exercise of the inherent human capacity for politics, and one of the chief means whereby democratic communities can control human selfishness, nurture public virtue, and achieve justice and the common good.

What this article explores is first, why the idea of a global ethic encompassed in the Earth Charter is effectively a covenant for the people by the people; and second, how such a covenant is necessary in light of the relative ineffectiveness of traditional legal contracts and negotiations in international law. While it is acknowledged that the process of international law-making in hard law treaties and soft law customary principle is essential to shedding light on State-centric behaviour both domestically and internationally, it is practically ineffective in controlling absolutely the conduct of actors in environmentally destructive activity. The State-centric system as it exists is dependent on the relative

1 See J Ronald Engel, “The Earth Charter as a New Covenant for Democracy”, in Miller, Peter and Westra, Laura (eds), Just Ecological Integrity: The Ethics of Maintaining Planetary Life, 37–52 (Rowman and Littlefield, Maryland, 2002), available at: <http://www. pdf> . This and all websites hereinafter last accessed 8 July 2009.



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political power of each member State, and such an unequal distribution of power can never lead to the inclusive development of a global covenant free from political constraints and driven by the global needs and related ethic of global civil society. It is critical to the success of the Earth Charter and therefore the effective self-governance of global civil society that the process of a covenant is understood:2

Covenants are critical components in the maintenance of any social order. They establish obligations, regulate behavior between parties, introduce a measure of predictability into social life and, most important of all, articulate a purposive and shared vision of the common good. Any effort to deliberately change the values of a social order involves an attempt to articulate a “new covenant” that challenges former implicit or explicit covenantal understandings.

After looking briefly at the historical relevance of covenants, we then need to highlight the current state of international relations in both the State-centric “reality” and the ability of the rapidly globalising world to implement self- governance. We then look at how international law stands in light of its State- centric bounds and also why a global covenant governed by civil society may be the only viable way of implementing a truly effective principle of global sustainability.

So what is a covenant?


2.1 A Philosophical Look at Covenants

Reference to covenants can be found deeply entrenched in writings throughout history, always surrounded by the most deeply held principles within the respective belief system. In the Jewish and Christian faiths, for example, God made the covenant in relation to the example of divine morality where, “covenant was seen as a moral order built into reality that has been offered to humanity as a gesture of God’s providential care, and in gratitude we are wise to conform our lives to it”.3 This is the principle that separates it from a contract of consideration. That is, the covenant obligated mercy, justice and humility 4 in a general sense of morality, rather than specific deeds which needed to be executed at a specific time. It was built on the good of the community as

  1. Ibid, at 6.
  2. Cobb, Kelton, The Blackwell Guide to Theology and Popular Culture (Blackwell Publishing, UK, 2005) at 215.
  3. See ibid, at 216.



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opposed to the rights of the individual. The covenant was also notably unilateral in the sense that it was a promise made to humanity without the requirement of anything in return and from a power that achieved nothing measurable in consideration, but the well-being of humanity. Any perceived “punishment” was in the form of harm caused by one’s own actions, namely the reasonably foreseeable consequences of an act outside the covenant, such as ostracising an individual or damage to the immediate environment.

That the theological covenant translates to environmental governance is simply because the covenant is something given by a power of immovable stature which cannot be disrupted. For religion this is through a higher power, or an appeal to some other all-encompassing measure of moral obedience. This principle is based on the “objectivity” of the laws and codes provided by the perceived moral power, as is the case with nature. As pointed out by Cobb, “nature is there with its objective reality and laws, not to be quarrelled with. It is ‘a moral teacher, instructing people in the laws of right and wrong’. Conform to it, and be blessed; violate it, and be cursed.”5

Based on the assumption that a covenant is the unilateral promise to obey a specific order, it is no surprise that social theorists have also used covenants to explain the interaction of individuals in society in their obedience to a moral code. Of note are Locke and Hobbes, both with similar theories of the social construct; however, Locke focused more on the moral obedience in relation to God as the sovereign whereas Hobbes viewed religion as a product of one’s moral obedience for personal survival, and arrived at God as the provider of the moral code but the State as sovereign “steward” of law to protect one from another.

Hobbes found that one could not do something or adhere to a rule that disrupted his or her “preservation and conservation”, adding that “an atheist could not sin by breaking any covenant with God, because one can make a covenant only if one thinks the other party exists”.6 Locke’s view of God was more absolute and his contention is that without a belief in God one cannot be bound to a promise, covenant or oath and that “dissolves all”.7 Locke’s theory, therefore, bound all to the same oath, whereas Hobbes’ relied more upon legitimacy in the higher power.

That Locke’s social theory, whereby one cannot arrive at a moral convention without God, has standing or not has been debated numerous times.8 What

  1. Ibid, at 217.
  2. Martinich, A P, A Hobbes Dictionary (Blackwell Publishers Inc, 1995) at 34.
  3. From Locke’s “Letter Concerning Toleration”, in Gauthier, David, “Why Ought One Obey God? Reflections on Hobbes and Locke”, in Morris, Christopher W (ed), The Social Contract Theorists: Critical Essays on Hobbes, Locke and Rousseau (Rowman and Littlefield Publishers, Inc, New York and Oxford, 1999) 73–96, at 73.
  4. Ibid.



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is important is to understand how both arrive at a justification for a personal moral obedience to a sovereign power. This is where Gauthier presents his argument that while Locke arrives at a code of morality through an obedience to a religious belief, of God as the sovereign “power”, the same moral obedience can result through the secular theory of Hobbes where the individual’s interest in his or her preservation and conservation is affirmed by moral obedience to the “laws of nature”. One could, therefore, conclude that it is not obedience to the laws of nature for the sake of obedience to a sovereign power, as in Locke’s theory, but a moral obedience out of individual interest, in an individual’s own “survival”, which should, in theory, be the same interests of society. As Gauthier points out, Hobbes’ “moral autonomy” is only overridden by the laws of nature “insofar as it is in his interest that everyone’s similar pursuit of conservation and delectation be so overridden”.9 What this means for the individual’s ability to covenant to an overarching principle is that the act of covenanting by one presupposes that another can be trusted to do the same, simply because their interests are the same. It is not a contract in the western legal sense where one is obligated to another contracting party in consideration of the terms of the contract and to obtain competitive advantage. The act of covenanting, in both this secular and religious sense, is based on an assumption that what is good for the preservation and conservation of all is good for the individual, and it is the individual’s moral obligation to covenant to that interest. As Gauthier writes:10

Each man places himself under obligation only by his own acts of covenant, acts whereby he denies himself some portion of his initially unlimited right of nature, in return for similar denial by those with whom he covenants.

The difficulty with the theory of a covenant, therefore, becomes that, unlike a legal contract, there is no State-legitimised punishment for a party to the covenant should they not abide by its terms. While theorists like Hobbes attempt to theorise a “denial” of rights in retaliation for a corresponding “denial” of rights, if we then introduce legitimate economic “competition” into the scenario, then that competition becomes the general law of nature — that is, it becomes legitimate for an individual to pursue his own “needs” and accumulate resources at the expense of another. This, of course, is wholly dependent on the existence of legitimate governance over the acts of the individual, but it is conceivable that our system of democratic economic individualism exists in fundamental conflict with the covenantal “laws of nature”.

The potential for this conflict of values was not unforeseen by Hobbes, which is why he introduced the concept of transferring the individual covenant

  1. Ibid, at 90.
  2. Ibid, at 89.



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to a sovereign as steward in protecting the unity of all concerned. As Martinich points out, a “covenant requires trust in the party who is to perform in the future. Such trust is tenuous in the state of nature, where there is no human authority who can enforce a broken covenant.”11 This is the reason Hobbes refers to the sovereignty of God, not because one derives their moral obedience from their religious code, but because uniting under sovereignty realises that “alliances are fleeting”, and “one of the things that the sovereign provides is unity, one voice that speaks for all and one will that decides for all”.12 This is how Hobbes justified the existence of government in governing the actions of society, a theory which is largely criticised as a step too far considering that the point of using a sovereign power was to provide the “laws of nature” or those rights so intrinsic to human survival and dignity they must be respected above all else. The conflict is therefore the fact that such a sovereign power does not reflect these values and has shown its ability through political agenda or market pressure to contribute to social inequality and environmental degradation. It is essential to a government party’s survival that it exhibits values by which they are judged; their success in a true democratic State depends on a majority of votes, or political negotiation, rather than an overarching social code of conduct which if followed grants each individual equality and justice, or as is the case of nature, “preservation and conservation”.

Politics is, therefore, value-based and reflects subjective morality “enforced” on a community, whereas the theological, and perhaps the logical path of the social theory, depends wholly upon a sovereign not of subjective value-based assumptions but an obedience to a compassion-based objectivity. An objective approach ensures the “preservation and conservation” of all as a precondition to the “preservation and conservation” of one, as opposed to the dominance of subjective values which promote and reward inequalities and an unsustainable use of available resources in nature. Covenants therefore reflect an objective value which is both in the individual’s best interests as well as the larger community’s — what is unclear is how this value is represented in international law, if at all, and what role covenants have in light of an often conflicting sovereign system of international relations which tends to value individual or strategic rights above all else.

2.2 Covenants and International Law

What begins to emerge from a study on covenants is a picture of international relations as we see them today. We have international organisations (“IOs”) centred on the governance of the United Nations (“UN”), which are enacting

  1. Martinich, supra note 6, at 84.
  2. Ibid.



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international laws in various forms of treaties, covenants, customary principles and binding resolutions to a consortium of sovereigns, while simultaneously having absolute sovereign power from which to ensure compliance. As Szasz points out, “a great deal of international law exists and is very generally observed — usually without enforcement mechanisms”.13 Given that the scope of international law is to reflect a general and overarching legal or principled code, it is unsurprising that such principles compete with the principle of sovereignty from the outset. That international law is fashioned out of customary principles and guidelines is simply reflective of the competing paradigms of sovereign governance in domestic law and the needs of global civil society in ensuring the latter’s preservation and conservation. Of course, the State-centric nature of international relations is arguable in light of increasing non-governmental organisations (“NGOs”), social movements and media on environmental protection. But the overriding power of States can still be seen in examples of State-based conflict — for example, between Israel and Palestinian “citizens” of the West Bank and Gaza; nationalisation of essential energy resources in Bolivia and Venezuela; and the “invasion” of the United States-led campaign into Iraq against UN Security Council resolutions. As Evans points out:14

Although the State-centric, self-interest view of international conferences is often denied — usually by pointing to the increasing numbers of international nongovernmental organizations (NGOs) invited to participate in international conferences — so far there are few signs that global interest [is] replacing national interest as a rationale for action.

The balancing of national versus international interests is therefore reflective of the individual versus community interests as discussed above.

The interdependence of nation-States in foreign investment, trade, humani- tarian aid, political support and regional State-based economic unions has forced the traditional sovereignty of the State to be challenged by various institutions, given that such “globalisation” by its very nature hands power in different forms to organisations outside government. International environmental law and policy is a predominant consideration given that economic integration has broken down the territorial boundaries that historically formed the basis for economic freedom and State-centric sovereignty and has led to the general industrialisation of the global market. Our present conflict is therefore how do we reconcile the State-centric foundations of international law and harness

  1. Szasz, Paul C, “General Law-Making Processes”, in Joyner, C (ed), The United Nations and International Law (1997) at 28.
  2. Evans, Tony, “International Environmental law and the Challenge of Globalisation”, in Jewell and Steele (eds), Law in Environmental Decision-making (1998) at 208.



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current economic cooperation to fully implement environmental protection mechanisms that have equal legitimacy across State borders, without conflicting with national policies? As it stands, national interest will more often than not override the good of the global commons, unless international law provides legitimate governance outside sovereign actors. Because, as Speth affirms, State sovereignty and international law are inseparable: “The principle of sovereignty guarantees that all nations are equal in the limited sense that no nation can be bound by a treaty without its consent.”15 Essentially, although international law seeks to provide “equality” between States, it only confirms State “inequalities” by relying on a voting and veto system, and voluntary obedience, which reaffirms the might of wealthy and militarily powerful countries.


3.1 The Evolution of International Law and Sustainable Development

International conventions, treaties and covenants provide for norms generally accepted by all States, are the basis for international law, and:16

... often invade the traditional spheres of government activities by requiring States to limit the emission of pollutants, establish licensing systems, regulate and monitor waste disposal, control the export and import of endangered species and hazardous products, and enact penal legislation.

What is typical of such agreements is that they provide for mechanisms to implement the agreed terms domestically and also establish monitoring bodies, incorporate other relevant treaties, and anticipate framework agreements to the convention. Such treaties provide a general overview of codified norms, such as the 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, which left the establishment of parks and reserves up to the discretion of each member State and provided for a general protection of migratory birds.17 The value of national parks was seen as a basic norm of the member States, with the implementation of the “norm” the prerogative of the signatories. From this typically regional “wilderness” beginning, international

  1. Speth, James G and Haas, P, Global Environmental Governance: Foundations of Contem- porary Environmental Studies (Island Press, USA, 2006) (The University of Auckland e-resource) at 84.
  2. Kiss and Shelton, International Environmental Law (2nd ed, Ardsley, New York, Transactional Publishers, 2000) at 33.
  3. See Murphy, Sean D, Principles of International Law (Thomson/West, USA, 2006) at 369.



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environmental law gained momentum in the 1960s when national concerns highlighted “international” environmental threats, such as cross-border pollution.18 The UN therefore proposed a global conference, which was held in Stockholm in 1972 and took into account ethical and moral considerations in preserving the Earth’s resources for “present and future generations”.

In referencing future and present generations, international society attempted to face up to a primarily ethical dilemma of how to balance the “rights” of this generation to development, with the protection of the environment for future generations — basically an acknowledgement that edictal standards have largely ignored this in the past, choosing a “develop at all costs approach”. The issue in contemporary international law, therefore, is how to translate such fundamental moral and ethical conventions into binding legislation and then into domestic practice. The very concept of sustainable development, or the very essence of achieving a balance between our existence and the continuing survival of the Earth’s resources beyond the foreseeable future, is perhaps the most prominent example of this problem. Although conventional norms reflected in treaties are global issues, their national implications are far more difficult to predict or agree to. Such conventions are therefore “vague and conditional, [but reflect] a commitment of States to the global environment that thereafter shaped the development of more specific international environmental agreements, national laws, and institutional initiatives”.19

What grew out of the Stockholm Convention was the concept of living in consideration of the Earth’s ability to sustain our development; thus the concept of “sustainable development” (or “sustainability”) therefore became a conventional norm, but due to conflicting and extremely broad debates on its definition, has not yet been formally recognised as customary law.20 The development of sustainability within the 1992 “Rio Declaration”21 then reaffirmed that human beings must aim to live sustainably in that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”.22 What perhaps is more significant of the Rio Conference, however, is the participation of an unprecedented number of NGOs and other non-State representatives carrying

  1. Ibid, at 370.
  2. Ibid.
  3. The most common definition of sustainable development is quoted from the “Brundtland Report”, United Nations (1987), “Report of the World Commission on Environment and Development: Our Common Future”, General Assembly Res 42/187, available at <http://> : “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”
  4. United Nations Conference on Environment and Development, 1992, “Rio Declaration on Environment and Development”, available at <> .
  5. See Principle 3, ibid.



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the views of civil society, who outnumbered State representatives in Rio two to one.23 From this huge response to the emergence of a growing awareness of ecological integrity came the formalisation of the Earth Charter, which was not adopted by States but adopted by NGO delegates as giving “shape and meaning”24 to the principle of sustainable development. As Bosselmann points out, the Earth Charter provided “an eco-centrically defined responsibility for the earth”25 as opposed to the favoured “anthropocentric” version of sustainability in the Rio Declaration.

3.2 The Needs of the Earth Charter

Somehow humanity needs to change its course if it is going to survive — it may be an appellation to religious, wilderness, aesthetic or anthropocentric, or eco-centric, values but the end needs to be the same, regardless of the means. How then can we ensure we do not continue to shy away from principles of sustainability in favour of traditional economic rights and State-centric values, if the latter competes with the former? It may well be that we have come to realise that our western code of legislation is actually rather ineffective at incorporating something as intrinsic and absolute as the Earth Charter. After all — the Earth Charter represents everything that we are not, doesn’t it? As Engel writes:26

We humans possess a unique and terrible freedom. We are free to choose the unconditional rights and obligations that will govern the relationships to which we are bound — the covenants of our personal and collective existence. But our freedom is ambiguous. Anxiety tempts us to choose narrow forms of commitment, or to deny the reality and responsibilities of covenant altogether. Hence are born the ideologies of superiority, exclusivity, and exceptionalism that wreak such havoc in the world.

In this sense international law, in terms of “binding” conventions, falls short when we consider what we need to achieve — a basic turnaround in the reliance on contractual western values and an unbiased equality between member States,

  1. See French, H, “The Role of Non-State Actors”, in Werksman, J (ed), Greening Inter- national Institutions (Earthscan Publications, 1996) at 254.
  2. See Bosselmann, K, The Principles of Sustainability: Transforming Law and Governance (Ashgate Publishing Limited, UK, 2008) at 2; and see 108–109 for a discussion on the Earth Charter as a fundamental principle of “law”.
  3. Ibid, at 108.
  4. Engel, Ronald J, “A thematic essay on solidarity and kinship with all life: The Earth Charter Covenant”, USA, available at < v ent/images/uploads/ ENG-Engel.pdf> .



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largely in an attempt to shrug off the unequal bias of veto powers and State- centric agendas inherent in the current system. As Engel continues:27

How can we reclaim the concept of “covenant” for the modern world? Two problems face us. On the one hand, covenant is often so closely associated with a particular religious tradition that it is inappropriate for public life. On the other hand, we are so accustomed to living by “contract”, the notion that our obligations need extend only as far as our self-interest warrants, that the inevitable covenantal basis of social life is eclipsed. Yet, there is little hope that societies based on sectarian dogma, contract, or even an overlapping consensus on values, will ever have sufficient motivation to live in accord with Earth Charter principles.

As Engel affirms, our current system is customised for self-interest, which has steered international law along the same lines of contractual-based negotiations. Engel suggests that we need to revert to a trust-based system of mutual benefit through unilateral covenants, which will in turn lead to reciprocated benefits. This means granting a covenant based on the future well-being of humankind, not just on those that have achieved the means to live a more comfortable existence at the expense of others and the erosion of the environmental and social status of less-developed countries. Obviously the type of covenant referred to needs to reflect the general will of global civil society, which is exactly the point, and not traditional politics, which is primarily based on the democratic process of short-term economic gains and company-based protections, which are the antithesis of the Earth Charter. Furthermore, in adopting the covenants of the Earth Charter we do not need to predict every political change and regulation in each domestic setting, because the very inclusiveness of the drafting of the Earth Charter means it has incorporated the essence of what humanity needs to survive sustainably in light of its cultural, religious and social diversity.28 As the preamble reads:

We must join together to bring forth a sustainable global society founded on respect for nature, universal human rights, economic justice, and a culture of peace. Towards this end, it is imperative that we, the peoples of Earth, declare

  1. Ibid.
  2. The drafting of the Earth Charter was “the most inclusive and participatory process ever associated with the creation of an international declaration”. This is seen as giving it legitimacy on a global level where other international bilateral and multilateral agreements do not due to their limited incisiveness and consultation processes. See “Earth Charter in Action”, available at < Earth-Charter%3F.html> .



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our responsibility to one another, to the greater community of life, and to future generations.

In effect, declaring a responsibility as a global society leads to general prin- ciples of equality and sustainability becoming the foremost concern on any political agenda — having such a basis for State politics means only rogue States without the legitimate agenda of the people will promote unsustainable use of resources and socially unequal policies. It is believed that global civil society will overcome any deficiency in the interpretation of key principles of sustainable development and there can therefore be no State-centric arguments against sustainable development in favour of economic advantage, as was the case with the US declining to ratify the Kyoto Protocol on economic grounds.29

3.3 “Paralysis by Analysis” — Customary Principles as Vague Catch Phrases

Having an international system, which relies on general agreements on principle and the freedom of State compliance, obviously creates the function of “legitimacy”. That is, not often will States deny an accepted customary environmental norm unless its denial carries political justification. As Speth points out, “blatantly violating international obligations undermines a country’s legitimacy, and makes it more difficult to get other countries to voluntarily acquiesce to its wishes on other matters in the future”.30 What is evident, however, is that States use the broadness of a principle and often scientific evidence, or lack thereof, to justify or publicly legitimise non-compliance.

From Rio, several such principles essential to international environmental law have emerged, with sustainable development of course the primary principle of environmental governance. The reality is that although this “legal” principle is of such fundamental importance to achieving the Earth Charter’s, and any other environmental agenda’s for that matter, objective, it is so broad in its application that the exact meaning is often debated until the principle loses its effectiveness in providing what is essentially an “ethic” or “covenant” in environmental conduct. That there has been so much debate of it as an acceptable and legally interpretative definition of sustainable development is perhaps the very reason it is constantly played down in favour of more ineffective or interest-based conventions, and therefore has to measure its actual application in relation to national interests. Principle 2 of the Rio Declaration affirms:

  1. For media perspective see Time article, by Tony Karon, “When it Comes to Kyoto, the

U.S. is the ‘Rogue Nation’”, 24/7/01, available at < article/0,8599,168701,00.html> and for a cost of compliance-based argument see <http://,0,486480.story> .

  1. Speth & Haas, supra note 15.



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... the sovereign right [of States] to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

— thus highlighting the conflicting realities of having an accepted international norm in environmental law but having to balance this need with the right of member States to implement the norm in the best way they see fit.

It appears there is a much greater chance of effective adoption by States if the target can be ascertained or measured, as is the case with greenhouse gas emissions (“GHGs”). The UN Framework Convention on Climate Change (“UNFCCC”) opened for signature on 9 May 1992 in anticipation of the Rio Convention.31 The UNFCCC was based on the need to address global GHG emissions but included no set limits to which member States were “legally” bound. Such limits were anticipated in legally binding amendments to the Convention, in particular the 1997 Kyoto Protocol (“the Protocol”), which has an average reduction target of 5.2% across all signatories with individual targets ranging from an 8% reduction for the European Community and a 10% increase for Iceland.32

Member States are largely left to their own devices in finding national policies able to deliver the expectations of the Protocol in the commitment period 2008–2012, but the creation of the carbon trading market and other implementation mechanisms under the Protocol33 highlight the ability of international treaties to evolve and adapt to take into account unique domestic models, which do not necessarily need to be considered in the legislative process. Some, of course, question the point of the Protocol, considering that the worst offender, per capita, the United States, has failed to ratify. However, the hope is that the international legal system will adapt to the needs of individual nation-States for global advantage, and perhaps we will find from the Protocol that global cooperation may achieve its goal without the great superpowers.

  1. In relation to sustainable development, Article 3 aims to “protect the climate system for this and future generations”, and Article 2 highlights the need to “achieve economic development in a ‘sustainable manner’”.
  2. United Nations (1998), “Kyoto Protocol to the United Nations Convention on Climate Change”, available at <> .
  3. Article 17 of the Kyoto Protocol provides for a carbon-emissions trading scheme “supplemental to domestic actions”; see < emissions_trading/items/2731.php> .



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3.4 The Application of Sustainable Development as Customary Law

Sustainable development in particular highlights the inability of international law to be seen as so fundamental to the Earth and humanity’s survival that it should be next to basic human rights of life, liberty and justice. How, in fact, an overarching theme of sustainability will be incorporated into international law so as to be absolute in its application is unclear. In his separate opinion in the 1997 Gabcˇíkovo-Nagymaros case in the International Court of Justice (“ICJ”), Judge Weeramantry elaborated on the importance of considering the principle of sustainable development as more than just a descriptive term:34

I consider it to be more than a mere concept, but as a principle with normative value which is crucial to the determination of this case ... The principle of sustainability is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community. The components of the principle come from well-established areas of international law — human rights, State responsibility, environmental law, economic and industrial law, equity, territorial sovereignty, abuse of rights, good neighbourliness — to mention a few. It has been expressly incorporated into a number of binding and far- reaching international agreements ... It offers an important principle for the resolution of tensions between the establishment of two established rights.

Although Judge Weeramantry goes on to qualify that sustainable development cannot be termed customary law as such, surely the protection of life that sustainability offers propels it into such a fundamental place in humanity it must be adopted as something so essential to human survival that it cannot be compromised. However, a fundamental problem is, according to Bosselmann, that international law and negotiations cannot escape an anthropocentric approach to sustainable development, which tends to focus on development above all else, and therefore “it will be some time before we see a major international treaty reflecting a legal position beyond anthropocentrism”.35 As it is widely accepted that sustainable development cannot be achieved without considering the environment within its social, political, cultural and economic constructs,36 the negotiation of bilateral or multilateral treaties merely delays the process of a fully eco-centric and binding ethical code like the Earth Charter. This, of course, is due to the restrictions of such a process. Sovereignty was

  1. International Court of Justice (“ICJ”), Separate Opinion of Judge Weeramantry: Case Concerning the Gabcˇíkovo-Nagymaros Project (Hungary v Slovakia) (1998) at 95, available at <> .
  2. Bosselmann, supra note 24, at 130.
  3. See ibid, at 108.



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central to the negotiating process to the Rio Declaration and States were not so keen to hand absolute protection status to the environment. As Murphy points out, Principle 2 of the Declaration allows for a limitation to environmental harm beyond national borders but is “an obligation of conduct rather than an obligation of result”.37


4.1 Conduct or Result? An Issue of Sovereignty

The evolution of international environmental law, spearheaded by the debate on the meaning and implementation of sustainable development, has brought about a balancing act in terms of how to weigh the needs of the “global commons” with the traditional power of sovereignty and national interests. We must also keep in mind that our interconnected free markets also place a considerable amount of power and political persuasion in the hands of transnational business, which we discuss briefly below as “globalisation”. With this in mind, is it premature to believe that a social movement across borders may provide a direction for sustainability; given that it lacks any immediate power to deal with traditional sovereign issues? Here we seem to converge on two predominant theories of international relations: one, the similar “realist” theories of Hedley Bull, Morgenthau and Mearsheimer, which provide that only States hold any power capable of sustaining humanity’s direction and therefore sustainability needs to be in the State’s best interest if it is to act accordingly; and the opposite view of international relations, that globalisation and the growth of NGOs, technology and some form of social awareness and global connectedness has caused the fragmentation of the State system so relied upon by realism. We are therefore able to capitalise by dictating more readily the role of States in the agenda of global civil society. What is not clear, however, is if and therefore how these theories overlap.

Globalisation has undoubtedly been fostered through a series of inter-State relationships and a therefore very deliberate show of State negotiating power in the exact interest of the State, as it is entirely inconceivable that States would negotiate on any other basis than self-interest. Globalisation, while seemingly being in the interest of strengthening the State’s position in the international marketplace (realism), has in fact restricted the power of the State to act unilaterally without considering its international position and therefore the position of others (Falk’s “humane governance” theory). Globalisation has also

37 Murphy, supra note 17, at 380.



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caused the State to become largely symbolic as society has free access to its own well-being outside of the State system.

Whether this contention is true remains to be seen, as it overlaps both predominant theories of international relations. What is relatively clear is that

a) yes, we live in an economic and socially connected world; and b) we, for the most part, have functioning democratic States to which we pay taxes and receive in turn varying amounts of healthcare, education and infrastructure; and

c) we have access to an internationally recognised code of human rights for the individual despite the existence of the State as representative at international level. Whether this provides for the total fragmentation of State power is arguable indeed — especially when considering issues of security, as discussed below, and decisions by States on issues of national importance.

4.2 Westphalian Sovereignty and Globalisation

The birth of the formal State system began with the Peace of Westphalia in 1648, which formalised the absolute sovereignty of States within their respective territory. Basically it established the sovereign right of each country to protect its national interests by whatever means necessary — indeed, hindsight tells us it was a flawed principle from the start. What followed as a natural progression was the birth of a formal system of inter-State trade and trade-based agreements, which resulted in large-scale transfer of goods, culture, technology and labour. This period is also noted as the beginning of the multinational corporation (“MNC”), and consequently globalisation or global “market integration”, which has become as important in international relations theory as the formal sovereign State system. As States began to pursue interests by exploiting internal and external resources, the traditional sovereign-based dynamic of “power” evolved from a State-based paradigm to an economic and technology-centred paradigm where the sovereign power, or government, gained support through the economic growth of the nation-State.

This progression of “power” in international relations has therefore been discussed at great length and is found to be problematic for the implementation of a global environmental governing body. Today, MNCs have invested heavily in areas of technology and international economic policy and therefore gained notable non-sovereign power where the State has not.38 This has caused a compromising position where the State is dependent on large companies for legitimacy in politics and: “Additionally, because they are more agile than their national counterparts, corporations can more readily leverage the forces of

38 See Gabel, Medard, GlobalInc.: An Atlas of the Multinational Corporation (The New Press, New York, 2003).



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globalisation.”39 In effect, what this means for global self-governance free from State-centric considerations and compromise is arguable, with the two main arguments reflecting those theories mentioned above, being that globalisation has eroded the function of the State to a representative of its organisations and territory only with no real power to dictate economic direction;40 or alternatively, that while globalisation has handed different forms of power to non-State actors, in international law and matters of conflict and territory, the State may still choose to exert its absolute right of sovereignty in an anarchic world.41

The first argument paves the way for global civil society and self-governance as an alternative to the Westphalian system. Richard Falk’s work outlines this position and highlights the “diminishing statist capacities” of State-centric governance and the fact that in a globalised political world States suffer the effects of “globalisation from above”. Falk contends that such a “conception of globalisation” suggests:42

... two principal features: a significant, although uneven, loss of effective control by territorial States over the evolution of economic policy, including their own, combined with an economistic thrust in global policy formation that makes the goals of maximizing growth and profits almost unconditional, thereby temporarily consigning to the margins of the political process concerns about the ideological character of the political system and about adverse human and environmental effects.

What is clear from Falk’s theory is that States maintain some form of political decision-making power but it is limited by the constraints of the established principles of global relations, governed largely by international organisations, such as the World Bank, the International Monetary Fund (“IMF”), and MNCs. This is where the “realist” will disagree and interpret the global playing field as something, at first glance, entirely different; as is the case with Mearsheimer, who argues that while States may choose to agree to terms of trade and political relations with other States, they will do so for national interest and competitive advantage only, not because of a “force from above”. As Mearsheimer points out:43

  1. Ibid, at 2.
  2. See Falk, Richard A, On Humane Governance (Pennsylvania State University Press, USA, 1995).
  3. See generally, Mearsheimer, John J, The Tragedy of Great Power Politics (New York, Norton, 2001); and Bull, Hedley, The Anarchical Society: A Study of Order in World Politics (New York, Columbia University Press, 1977).
  4. Falk, supra note 40, at 174.
  5. Mearsheimer, supra note 41, at 51–52.



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Two factors inhibit [State] cooperation: considerations about relative gains and concern about cheating. Ultimately, great powers live in a fundamentally competitive world where they view each other as real, or at least potential, enemies, and they therefore look to gain power at each other’s expense.

Mearsheimer concludes that the pursuit of power is therefore a means of survival for States and, unlike the realist position of Morganthau — who believes States conflict because that is the precise function of a State — Mearsheimer contends that States must invest in means of wealth and military power in order to survive the anarchic system of international relations. For Mearsheimer it is simply a case of “eat or be eaten”.

Falk’s position against any “realist” notion of States has caused him to discount the ability of the UN to deal with any form of international governance simply because it is a product of, and therefore dictated by, the will of member States, and the more powerful ones at that.44 Logically, and as the 2008 International Union for Conservation of Nature (“IUCN”) report Governance for Sustainability points out, in order to retain legitimacy, Falk argues that States must react to globalisation by forming a new “social contract” based on transparency, prioritisation of sustainability over purely economic policy, and redefining national interest as “global” in light of the greater voice of global civil society.45 The argument is that the Westphalian concept of State sovereignty is largely redundant and international law could quite easily reflect this. The IUCN report implies the ease with which international law could adapt to this new function of governance by States by referring to Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration. These principles could, and should, outline the responsibility of each State to use its national resources subject to the needs of “the over-riding global ecological interest”,46 rather than reaffirm State sovereignty.

So what we now have is the contention that a) globalisation has eroded the function of the State so that in order to gain legitimacy a State must reflect the will of those it governs — which in turn will be a representation of global civil society; or b) globalisation is merely a product of the State function in the attaining of “power” and that at any moment a State’s actions against another are not completely clear or predictable. Of course, it is entirely plausible that both situations exist simultaneously, for reasons discussed below. At present, we should note that the evolution of environmental law does not need to come

  1. See Falk, Richard, Predatory Globalization: A Critique (Polity Press, Cambridge, 1999) at 111–112, as cited in Bosselmann, Klaus, Engel, Ron and Taylor, Prue, Governance for Sustainability — Issues, Challenges, Successes (IUCN, Gland, Switzerland, 2008) at 20, available at: < v ernance_final_fur_web.pdf> .
  2. Bosselmann, Engel & Taylor, ibid, at 29. 46 Ibid, at 30.



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only from the role of the State, but that the State may now be influenced by the principles of the governed:47

It is now commonly understood that the sovereignty of the State does not arise from any divine origin of power in a monarchist State or from the right of the strongest, but from delegation of power by the people to the “State”.

Although it is the sovereignty of the State that gives it legitimacy as a party to international law, global civil society is playing an important role in the norms now acceptable to the formation of binding State-centric law — which may point to the emergence of governance distinct from “hard” legislation and the original State-centric control of international agreements.

Kiss and Shelton have pointed to the emergence of new norms in sources of law which highlight the changing nature of what constitutes legitimate international law and how non-State actors are playing a central role. Environmental law has played a major part in this new direction given that environmental considerations are no longer seen as one nation’s only. Due to increasing awareness that our acts as nations are directly affecting the global commons through overuse of resources and in the restructuring of international policy to protect the growth of MNCs without territorial borders,48 there is a greater awareness of the need to act in good faith across borders rather than in subjective interests. Also, international law, unlike domestic law, is relatively dynamic, and rather than set hard-and-fast rules unable to respond to changes, it can respond relatively quickly to pressures. As States will not cede sovereignty on a blanket basis, the process is more able to remain “open” and changeable. The 1992 Rio Conference shows that international law is, however, only partially influenced by States and this should hold some promise for “good faith” proponents of covenantal governance like the Earth Charter.

4.3 International Relations Theory — Nation-State Security, Realism and Global Civil Society

It is reasonable to assume that global civil society needs absolute unimpeded freedom in order to provide effective governance at an international level. Such a governance model must be based on the free and democratic dialogue of all those who wish to take part in the establishing of humanity’s ethical code. If this is in fact true, why then is State sovereignty, so long as it is within a

  1. Schrijver, N, “The Dynamics of Sovereignty in a Changing World”, in Ginther, K et al (eds), Sustainable Development and Good Governance (Dordrecht, Nijhoff, 1995) at 83.
  2. See Gabel, supra note 38, at 7.



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democratic framework, ineffective at implementing such an ethic, or operating complementary to it? The answer may begin with security.

The basic covenant of the Earth Charter is wholly dependent on the community taking up the same covenant — otherwise those that adhere simply become martyrs of an ethical struggle. What we are then presented with is how can we be totally sure of the intentions of another, so as to ensure the survival of the covenant? Well, the contention by many is that we cannot. Issues of basic security have the ability to hinder global civil society in self-governance simply because we cannot be sure of what our neighbours will do given a specific situation. Never can we be completely certain that our neighbour will adhere to the same rules as us — this may be because of the pursuit of economic advantage or it may be in the name of some political ideal such as democracy, as was the case with the US-led invasion of Iraq. Whatever the situation, we may feel safer when an “ally” has military capabilities more powerful than those we are less sure about. It is perhaps because of this constant state of fear that global civil society has been relatively ineffective at diminishing the threat or use of force by one nation over another and why some contend that strictly enforced international law is necessary to “rein in” non-conforming States. Be that as it may, national security has been the justification on numerous occasions for the threat of or use of force against another nation-State, which simply fuels a cycle of anarchy that only decreases the effect of international environmental and peace agreements.

Whether the actual threat of or ability to use force against another State is justified comes down to a value-based decision. When single nation-States or even regional alliances, for that matter, such as the North Atlantic Treaty Organization (“NATO”) or the European Union (“EU”), hold this power, it can be argued that their decision to use it may more often than not be a subjective value and not derived from a universal consensus. For example, a Security Council Resolution carries stricter rules and procedures and a greater level of global inclusiveness. It appears it is easier to mobilise force when fewer people have an opinion as to its justification. Brown looks at this moral dilemma from two main perspectives: the pacifists, who view all types of war as illegitimate, and the realists, who view war as a “negotiating tool” available to States but one that is not used lightly due to its costs. What Brown also points out, however, is that both schools of thought converge on the awareness that, either way, a State’s “readiness to justify violence” is far too obvious.49 The means of war is really irrelevant when the end is so apparent.

On the issue of State sovereignty and the use of force, Hoogvelt argues that the use of force is prevalent in developed countries, but results simultaneously

  1. See Brown, Chris, Sovereignty, Rights and Justice: International Political Theory Today

(Polity Press, UK, 2002) at 102.



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in a “hollowing out of national sovereignty”50 — for instance, where, especially since the 9/11 terrorist attacks, the US global security agenda hit overdrive in a race to disarm perceived “rogue” States. Instead of arguing that national sovereignty was heightened during this time, as a realist might, Hoogvelt differentiates between the economic interdependence of nations, which is no doubt the case, and legal and administrative sovereignty, from which States with the ability seek to coerce non-abiding States.51 He goes further to include NGOs as tools of the sovereign, where such organisations are subject to the political agenda of the State should they be involved in humanitarian work during wartime — for example, the distribution of food aid in Iraq where representatives were “obligated” to show the American flag during their duties.52 This situation is problematic for several reasons. First, the global civil movement is obviously undermined when matters of national security are used as justification for the use of force on another nation-State, due to the regulations of military control on NGO representatives, as in the “absolute legitimacy” of military force; and second, beside the fact that the American-led invasion of Iraq, under UN Security Council Resolution 1441, was without UN authority, it is unclear where justification lies for State intervention when the agenda of a powerful nation wishes to use its power against another in order to liberate, integrate, or educate the latter. Whatever the justification for unilateral or multilateral action, it can never be justified if a common goal is to be reached, no matter how resolute in their ideals is the intervening State.

Gillespie explores the above argument from the position that disarmament is a strategy to secure peace, and arms control is a strategy to secure advantage.53 In essence, this means that while some countries still hold the ability to use force, such as nuclear weapons, over another, then peace may never be had — given the constant state of fear or animosity that will continuously exist. As Gillespie points out in reference to the Canberra Commission’s report on the existence of nuclear weapons:54

Despite this growing recognition that nuclear deterrence and nuclear security is only a paper charade that creates much greater dangers than it prevents, the nuclear powers insist on retaining their nuclear forces.

  1. Hoogvelt, Ankie, “Globalisation and Post-modern Imperialism”, in Gills, Barry K (ed),

Globalization and the Global Politics of Justice (Routledge, UK, 2008) 65–80.

  1. Ibid, at 76.

52 Ibid, at 74–75.

  1. Gillespie, Alexander, The Illusion of Progress: Unsustainable Development in International Law and Policy (Earthscan Publications Ltd, UK and USA, 2001) at 132.
  2. Ibid, at 133.



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As Gillespie then concludes, the next logical step is to set up a system capable of convincing the nation-State community that their security is guaranteed. This in turn requires a “supra-sovereign body” with the capabilities to manage such a guarantee55 — this, however, requires a reciprocal cession of all power that the State holds, which has the ability to cause unrest in other nation-States. The reality is that powerful States are unlikely ever to give up such power so long as diversity exists, as is the present case. It is likely Britain and the US could reach agreement over disarmament simply because they feel no threat from one another due to their cultural similarities and history — the same could also be said for Australia and the minuscule “threat” that is New Zealand. In fact, New Zealand’s ability to take on powers like the US on nuclear policy,56 despite economic trade-offs, should be used as an example that a strong form of national and peaceful identity can exist without having to hold a militaristic threat.

The two paradigms of the “ability” to use military power and the sovereign “right” to use it should not be confused. While it is clear that rogue nations do, and will continue to, exist, it is not for one nation to decide the terms of intervention based on a popular value. This is precisely why the threat of inter- State force, like the threat of domestic oppression, cannot be tolerated, and therefore the sovereign power to use force under any circumstances should not exist. The Earth Charter is very precise on this point as there is no compromise to be had: Part IV.16 reads:

  1. Demilitarize national security systems to the level of a non-provocative defense posture, and convert military resources to peaceful purposes, including ecological restoration.
  1. Eliminate nuclear, biological, and toxic weapons and other weapons of mass destruction.

While Gillespie views the existence of sovereign-State anarchy as disastrous for sustainable development, the real issue is that while international relations are more focused on national competitiveness and distrust than on the pursuit of, and respect for, the authority of a central governance structure, environmental sustainability suffers the same fate as social sustainability.

4.4 Global Governance

What humanity needs to focus on is how to implement a “federal” system of environmental governance that may hold the power to control a nation-

  1. See ibid, at 133–134.
  2. See the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987.



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State’s behaviour so that the environmental “result” is as measurable and certain as basic human rights as set out in the UN Charter on Human Rights and recognised universally as overriding sovereign rights in conflict issues.57 Whether we are able to measure a State’s result and act upon it is fundamental to achieving sustainability, but is severely hindered by not only national interest and sovereignty but also the role of the State in issues of international security and non-intervention principles, as we have briefly explored above. What is therefore relevant is whether there exists the possibility that States are able to take up a role in global governance rather than dictate it.

Kiss and Shelton have argued that the function of the State in light of environmental policy is changing from an entity with sovereign and absolute domain over its territory, to a “functional” sovereign, which is responsible for implementing norms and principles, established in international law.58 The author uses the example of the Stockholm and Rio Declarations as support by quoting the evolution of sustainable development theory, namely that while States have “the sovereign right ... to exploit their resources pursuant to their own environmental policies” they also have a “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction”.59 What this understanding relies upon, therefore, and rightly so according to Kiss and Shelton,60 is a framework of international regulation enforceable at global governance level in the form of an appropriate institution, and domestically implemented by States, the latter being central to the strict compliance required of such environmental policy. This is primarily because States will no doubt encounter disadvantage in enacting environmental regulation as, rather than being in a “reciprocal” agreement, where sanctions may be used as punishment for non-adherence, which is impossible in the case of environmental regulation, it will be a “covenantal” arrangement.61

The contention that a “powerful international environmental body” is necessary on policing matters of environmental law is also discussed by Gillespie, who contends that such an argument is “nothing new”.62

One is then logically forced to discuss the existence of the nation- State system and its role in such a governance model, primarily because

  1. For analysis on the effect the Pinochet case had in the United Kingdom House of Lords acknowledging that no person, sovereign representative or otherwise had immunity to commit an act against the rights set down in the UNCHR, see Brown, supra note 49, at 217–219.
  2. Kiss & Shelton, supra note 16, at 25–26.
  3. Ibid, at 26.
  4. Ibid, at 5.
  5. Ibid.
  6. Gillespie, supra note 53, at 138.



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a) environmental concerns are “not compatible with concepts of national boundaries”;63 and b) “unilateral actions in addressing environmental degradation are largely futile”.64 Gillespie then outlines the need for NGOs to step up, as they are capable of bringing together individuals of broad backgrounds and expertise and, as recognised by Agenda 21, “play a vital role in the shaping and implementation of participatory democracy”.65 This is also the logical step for the Earth Charter as it aims to: “Support local, regional and global civil society, and promote the meaningful participation of all interested individuals and organizations in decision making.”66 NGOs have also been given their “saviour” status since the impressive turnout at the Earth Summit as they have the unique ability to garner solidarity throughout global society, which is essential for the principle of sustainability, being that it depends entirely upon the equality of all humanity regardless of residence or race.

Evans also addresses the declining need for State power and points to:67

... the growing realization that material well-being of people everywhere depends on social, political and economic relationships that transcend State boundaries. International relations are therefore best characterized as an international society; a community of sovereign States sharing common values and aspirations.

As the case may be, however, State power, while capable of taking a functional role in global governance, by its very inherent agenda and purpose, may not be able to. The view of Kiss and Shelton, and Evans, suggests an “institutional” theory of governance which may not place enough emphasis on the “real” power of States to disrupt global relations. As Hurrell points out, referring to what he terms the “institutionalist” theory of governance:68

The Institutionalist account underplays not only the capacity of the strong to choose different modes of management. It also underplays the extent to which forms of interdependence are neither as strongly structural nor as consistently politically salient as the liberal interdependence model might suggest.

  1. Ibid, at 140.
  2. Ibid.
  3. Ibid.
  4. Earth Charter Commission, The Earth Charter, Part IV.13(b), available at <http://www.> .
  5. Evans, supra note 14, at 213.
  6. Hurrell, A, “Power, Institutions and the Production of Inequality”, in Barnett, M and Duvall, R (eds), Power in Global Governance (Cambridge University Press, UK, 2005) at 41.



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What may be reasonably inferred from the above is that one must tread carefully when assuming that global interconnectedness equates to a lack of power to act on the part of the State, especially in matters that directly and adversely affect the predominant political position of the State concerned. Take for example the position of the United States on the Kyoto Protocol to the UNFCCC.69 While the US has signed and ratified the UNFCCC it has failed to ratify the Protocol, which sets out meaningful targets for a global reduction in GHG emissions.70 The decision of the US to not ratify the Protocol was purported by the Bush administration to be on grounds of avoiding economic detriment and it further questioned why developing countries were not treated equally in setting the latter’s targets.71 The point is not that the US may or may not implement environmental policy to reduce its GHG emissions — in fact it may do so by unilateral means — the point is that as arguably the most politically powerful State in the world, it still has the legitimacy to take a unilateral stand on the most important environmental matters. This of course is the US taking its sovereign right under the UN Charter72 to choose its self-interest over and above the interest of the global community in reducing greenhouse gas emissions for this and future generations. Furthermore, on his analysis of international policy surrounding climate change, Speth points out that while the UNFCCC addresses the surface problem of GHG emissions, the root causes are more likely poverty, “weak” governments, fossil fuels and transportation — which are not addressed as mechanisms in the Protocol,73 as to do so would be to directly control the domestic law of participating States. It is also well established that on issues of economy versus the environment, given that the environmental degradation is largely hypothetical in nature, imminent economic considerations are far easier to favour.74

What the resulting situation then resembles is that States in the current system of international governance may too easily use sovereignty as a

  1. United Nations Framework Convention on Climate Change (“UNFCCC”), available at

<> . Article 3.1 reads: “The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.”

  1. The 1998 Kyoto Protocol to the UNFCCC is available at < convkp/kpeng.pdf> . The schedule of ratifying countries is available at < files/na/application/pdf/kp_ratification20090624.pdf> .
  2. See the Time article by Tony Karon, supra note 29.
  3. For a discussion on the inability of international legislation to be binding on member States without their approval, see generally, Gillespie, supra note 53, at Chapter 8.
  4. Speth, J G, Red Sky at Morning: America and the Crisis of the Global Environment (Yale University Press, USA, 2004) (The University of Auckland e-resource) at 102.
  5. Ibid, at 107. Speth uses the example of the Convention on the Law of the Sea, following which the US neglected to regulate the “new” fishing areas and instead supported greater exploitation of the new “resource”.



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means to avoid compliance on serious issues of environmental global policy. Furthermore, other domestic interests, as Speth points out, will more times than not take precedence over international environmental agendas.

Hurrell also points to the ability of powerful States in following self-interest agendas in international negotiations and thus shaping customary international law by strategic decisions on such matters. For instance, States may choose to not take part in humanitarian action on the one hand, but use the argument of “pre-emptive” self-defence to legitimise an action on the other.75 Similarly, on decisions of legal norms, should one State choose to not accept a “norm” as international law, they may be branded a “rogue” or “pariah” State — raising the question of who in fact provides the values by which international law is furnished — do we “seek to mediate among different values” or “seek to promote and enforce a single set of universal values”?76 It is clear that global civil society recognises this last potential conflict, as the Earth Charter States: “... we must find ways to harmonize diversity with unity, the exercise of freedom with the common good, short-term objectives with long-term goals” (“The Way Forward”) and “[e]ncourage and support mutual understanding, solidarity, and cooperation among all peoples and within and among nations” (IV.16(b)).

How the Earth Charter seeks to rein in the unilateralism of States like the US is indeed an ambitious undertaking and one to which international law may not provide the answer, as it is entirely dependent upon State sovereignty for existence and legitimacy, barring the few examples of human rights as mentioned above. It is no accident that the US has consistently failed to ratify key legislation, namely the Convention on Biological Diversity, Convention on Rights of the Child, Land Mine Convention, Law of the Sea Treaty, and the list goes on.77

4.5 Claiming Equality in an Unequal World

The unevenness of the State structure is indeed a concern, as given the opportunity to stand on equal footing — politically and economically with the US for example — almost every country in the world would jump at the chance. However, based on a State-centric system of governance and the constant competitive nature of international relations, States will never be equal and can therefore never be responsive to the demands of global civil society in social and environmental governance. Who gains how much from a situation is therefore a predominant question in international relations; it is not a question of “What

  1. Ibid.

76 Ibid, at 40–41.

77 Ibid, at 110.



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can we do for the well-being of the planet and humanity in general?” that we find ourselves asking, as would be the case in a legitimate social covenant as discussed above. For one thing, such a question would carry very little weight in a political race, and for another, one country with such a policy would soon find itself exploited by others at every opportunity.

Gillespie has explored the “North–South divide” where interdependence does not necessarily imply equality:78

Just as there has been confusion with the idea of interdependence, so too has there been with the suggestion of the supposed pluralism of the international system in allowing new actors to emerge, such as NGOs. Here it should be recognized that these communities often have only a marginal influence in the international area because of an overt unwillingness of national States to yield too much control to anything other than themselves.

Kapstein also focuses on this inequality and points to the elitist values of the more powerful negotiating State that ultimately lead to an agreement with an “inferior” State. It defies all logic, regardless of obvious political theories, that a more powerful country would not compete for the most advantage possible when such negotiating is based on free-market liberalism. Kapstein uses the creation of the General Agreement on Tariffs and Trade (“GATT”) as an example, which required a reciprocity agreement where “concessions delivered by Country A had to be matched by Country B if a bargain was to be reached between them”.79 Effectively, unregulated speculating on the global financial market has also brought about winners and losers — most often it is the unilateral speculation of the “winner” through the international monetary exchange system that creates an unwitting “loser”. As Susan George points out in the preface to the multi-author volume entitled Globalization and the Global Politics of Justice:80

The International Labour Organization tallies ninety-five countries that suffered economic and financial crisis between 1990 and 2003 alone. Many of these were caused by speculative attacks against their currencies and included the imposition of much higher interest rates and sharp devaluations, ruining businesses and reducing people’s salaries, savings, pensions etc by at least a third.

  1. Gillespie, supra note 53, at 146.
  2. Kapstein, Ethan B, “Power, Fairness and the Global Economy”, in Barnett & Duvall, supra note 68, at 99.
  3. George, Susan, in Gills, supra note 50, at xii.



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Couple this “interdependence on inequality” with the very imminently available use of force to protect security or national interests and you are left wondering how an argument based on the “interdependence of States” logically turns to the availability of the means to effectively self-govern. A cynic would no doubt argue that the complete opposite would appear to be the case. However, the point is that a social and environmental covenant to humanity does not require such “logic” based on international relations — it requires democratic dialogue and the will of global civil society to implore global compassion.


That the term “covenant” is used in international agreements is a little contrived, given that a covenant in its essence requires no agreement in order to gain legitimacy. It merely exists for the good of those on which it has an influence. International law seeks to implant the covenantal tradition on international relations, this is true. Perhaps this is why such agreements are seen as “vague” and “ineffective”. Because they are exactly that, being based on the goodwill of those whose lives they touch — which is precisely the reason why States are not set up to fully realise the goals of peaceful and equal negotiation, considering that they do not possess the morality to which such covenants appeal. The aim of international law is therefore flawed from the outset — which is where documents like the Earth Charter come in — such covenants do not need specific terms or scientific analysis from which to measure our failures. Science is not required in order to reduce a country’s use of CFCs, or implement a total ban on the use of unilateral or multilateral force or nuclear weapons, or the equal distribution of economic advantage and health throughout the entire planet. These are not rights reserved for one country or another based on their ability to appeal to “power” in whatever form: political negotiating, war, or otherwise. These are obligation of each and every person. Sustainability is not a science and it should not be confused or analysed so as to limit its covenantal truth. It is the simple act of one individual realising that all humanity deserves to live and that each person deserves representative equality and protection from harm. From this position, the details take care of themselves — so long as the will exists.

Consider this:81

  1. Brown, Peter G, Ethics, Economics and International Law (Edinburgh University Press, Great Britain, 2000) at 123.



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Nowhere does Locke limit the scope of obligations to compatriots. He talks of our obligation to preserve all humankind, and this obligation creates a transboundary frame of reference for evaluating the conduct of nations.

This obligation exists by means of our simple existence. Any person or organi- sation that exists at the expense of another form of life simply does not have a right to continue to operate in such a manner. Therefore, State sovereignty cannot exist so long as diversity exists — as the very structure of sovereignty requires inequality to survive: in space, in resources, and in the form of military power. Religion cannot escape equality either. Any religion, regardless of its divine status, that causes an unequal shift in the power balance, between men and women, race or expression, cannot be tolerated, if the covenant is to be realised.

The United Nations already has the infrastructure to rule on issues of inter- national relations, including security and cross-boundary environmental issues, and given a logical view on the environment, domestic environmental issues are cross-boundary issues. This depends, however, on the restriction of States in veto powers and an equal distribution of representation at global governance level regardless of monetary input. Powerful countries like the US will also have to stop limiting the power of international judicial bodies, like the formation of the International Court of Justice, and recognise the latter’s authority out of moral obligation, not based on a legal prerogative of sovereign choice.

As the Gabcˇíkovo-Nagymaros case shows, sustainability has a right to legitimate consideration in inter-State matters simply because of “not only its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community”.82 For a State to have the ability to deny the authority of the ICJ on specific points is to effectively decline to protect the well-being of its citizens and its neighbours. How long that kind of behaviour will be tolerated is unclear, but change will only come about by the demand of global civil society for States to be held more accountable at a global level.

The idea that we each need to covenant to the other effectively spans the divide that the State system and humanity’s historical conflict and blind pursuit of wealth has created. It cannot depend on force or coercion or institutional conflict, it depends upon a global recognition based on communication. International law holds the basic principles of governance, if one seeks something more “tangible”; otherwise the Earth Charter provides the beginning of the struggle to overcome our past. We need to command something greater than what exists — a belief that humanity can effectively self-govern and pave the way for adequate controls over exploitation and conflict. As Engel writes:83

  1. See note 34; cited in Bosselmann, supra note 24, at 69.
  2. Engel, supra note 1, at 23.



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... without the democratic faith that a greater creativity than we command is being mediated to us through the evolutionary process and our cooperative efforts for the common good, and that there is that in existence which will not betray our trust, we have no adequate foundation for the covenant we are asked to join.

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