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Gussen, Benjamen F --- "The marginalisation of localism in current responses to the ecological crisis" [2012] NZJlEnvLaw 6; (2012) 16 NZJEL 167

Last Updated: 29 January 2023


The Marginalisation of Localism in Current Responses to the

Ecological Crisis

Benjamen F Gussen*

This article advocates a Copernican shift that brings localism to the centre of any effective response to the current ecological crisis — and by doing so surrendering all other scales of social organisation (from the national to the global) to subsidiarity. Disembeddedness (or delocalisation) is identified as the root cause to ecological crises. Localism was the leitmotif of the historical (pre-Enlightenment) response. Today, however, the response marginalises localism through the fiction of “indigenous peoples”, through the “universal human rights” paradigm, and above all through the illusion of the “complexity imperative”. Notwithstanding, there is a growing understanding of the importance of localism, shared by international organisations and the civil society. Unfortunately, this understanding is yet to be adopted by the New Zealand government.


At the practical level Spinoza advocates, in what can be taken to be his most consistent position, that his preferred form of government is a polycentric aristocratic republic where sovereignty would be

*Benjamen F Gussen is a Barrister and Solicitor of the High Court of New Zealand, currently reading for a PhD in constitutional political economy at the University of Auckland. The author would like to thank Klaus Bosselmann, Anthony Endres and J Ronald Engel for their valuable comments on an earlier draft of this article. In particular I am grateful for the insights I have received on the problematisation of scale, and the discussions on how this problem permeates much of the issues facing jurisprudence and economics.

shared between a number of cities and provinces. Spinoza argues for this preference on several grounds, a key one of which is that power resting in more than one place results in a better political balance being achieved, and is therefore better able to defend liberty from tyranny, either from within or without.

Raia Prokhovnik1

No meme2 has caused more suffering to the collective of mankind than that of “nation”, especially as institutionalised under the unitary modern state. Donald Livingston provides a poignant account of this tragedy:3

Prior to [the French Revolution], Europe was an order of federative polities

... The French Revolution destroyed all independent social authorities ... The people collapsed into an aggregate of individuals under an all­powerful government ruling in the name of the natural rights of individuals, and determined to spread this doctrine throughout Europe ... It is the structure of the modern state itself, independent of whether it wears the mask of liberalism, fascism, or Marxism, that ... must be called into account. (emphasis added)

Livingston links the rise of the modern state, and the concentration of power at the centre, with the inferno of the 20th century. It is within this logic that we can find a direct link between the modern unitary state and the ecological crisis. The following example illustrates how nationalism, the main idea behind the unitary modern state, can distort the consciousness of local communities:4

Originally Israeli national pride was grounded in the belief that the country had restored, through irrigation and reforestation, the fertility of a land that had been nearly turned into a desert by many centuries of nomadic life ... However, the extremely high water consumption of the orange groves and eucalyptus forests — two showpieces of Zionist colonization — pushed Israel’s water economy into an increasingly precarious situation. That prompted a leading Israeli journalist to write in 1997 of the danger that Zionist colonisation could

  1. Raia Prokhovnik “Spinoza’s Conception of Sovereignty” (2001) 27 History of European Ideas 289 at 301. See also Raia Prokhovnik “From Democracy to Aristocracy: Spinoza, Reason and Politics” (1997) 23 History of European Ideas 105.
  2. A meme is a blend of “gene” and the Greek word μιμητισμός for “something imitated”. Memes are the cultural counterpart to genes. For the genesis of the term, see Richard Dawkins The Selfish Gene (2nd ed, Oxford University Press, 1989) at 192.
  3. Donald Livingston “Secession and the Modern State” (1996) Stalking the Wild Taboo


  1. Joachim Radkau Nature and Power (Cambridge University Press, Cambridge, 2008) at 239.

create an “ecological catastrophe” for the “small and fragile country”. In contrast to the earlier ecological nationalism, environmental awareness today tends to promote an understanding between Israelis and Arabs.

Through this article it is hoped to ascertain the role of disembeddedness,5 or the assault on local (political) organisation, in the ecological crisis we face today.6 While as a legal concept it is extremely vague,7 we interpret “locality” following Livingston’s “federative polity” conception. Our emphasis in defining localities is on local autonomy. Our understanding of locality is hence analogous to that of “old” localism. For our purposes, localities are autonomous legal entities with a relatively small (non­contiguous) jurisdictional footprint.8 The key differentiators are the small size of the entity and free ingress and egress of all forms of capital.9

The issue, namely the role of disembeddedness in the ecological crisis, took special importance after an opinion I wrote on whether Waiheke Island should become a UNESCO biosphere reserve.10 This issue was central to the election (in October 2010) of a new five-seat Waiheke Local Board as part of the new Auckland supercity governance. The first port of call was to understand the history of the concept of biosphere reserves.11 Their investigation led to two underlying principles. The first gives effect to what is known as participatory governance.12 It is associated with risks and opportunities when taking into

  1. For an elaboration on the concept of embeddedness see Mark Granovetter “Economic Action and Social Structure: The Problem of Embeddedness” (1985) 91 American Journal of Sociology 481. The original contribution on embeddedness comes from Karl Polanyi The Great Transformation (Beacon Press, Boston, 1944). For the purposes of this article I use embeddedness, localism and locality interchangeably.
  2. I use the terms “ecological crisis” and “environmental crisis” interchangeably although the former term is preferable given its emphasis on a stronger version of sustainability.
  3. Yishai Blank “Localism in the New Global Legal Order” (2006) 47(1) Harv Int’l LJ 263.
  4. Compare Gerry Stoker “New Localism, Participation and Networked Community Governance” (Institute for Political and Economic Governance, University of Manchester, UK, 2007). Our interest is not only in the devolution of managerial powers but also political ones. This political aspect was the emphasis of calls for localism in the middle of the 20th century.
  5. The small size (geographic and demographic) results in default integration of the ecological, economic and social spheres — and hence accomplishing one of the fundamental substantive elements underlying sustainable development, namely the principle of integration. See Sumudu Atapattu Emerging Principles of International Environmental Law (Transnational Publishers, Ardsley (NY), 2006) at 129.
  6. Ben Gussen “Legal Opinion on Waiheke Biosphere Reserve” (2010) Waiheke Forever


  1. See Biosphere reserves: The Seville Strategy and the Statutory Framework of the World Network 28 C/Res 2.4, UNESCO GC (1996).
  2. See Panagiotis Getimis and Grigoris Kafkalas “Empirical Evidence and Comparative Analysis of Policy­Making in the Pursuit of Innovation and Sustainability” in H Heinelt and

account the various stages of socio­economic development.13 The second principle requires that each reserve has its own governance system to ensure that it meets its functions and objectives. Under these principles, biosphere reserves give effect to a weak version of local autonomy, which creates a pattern of multi­governance.14 These principles (requiring autonomous community­based governance systems) could well explain why New Zealand has been shying away from establishing biosphere reserves for the last 50 years: biosphere reserves inspire a decentralised approach to governance, which is not in line with our current political thinking.

However, to be fully informed on this matter, I put the question to Nikki Kaye, the National Party MP for Auckland Central, who in turn raised the issue with the then Minister for the Environment, the Hon Dr Nick Smith. Dr Smith replied in these words:15

The sustainability and public engagement focus of the Resource Management Act 1991 largely covers what a biosphere reserve status aims to achieve. The government is focussing its energies on a range of programmes relating to indigenous biodiversity protection and enhancement. This includes supporting local government through the development of non­statutory best practice guidance and a proposed national policy statement for freshwater management. The current programmes provide the appropriate level of protection to New

Zealand’s flora and fauna ...

In summary there was no mention of the local autonomy principle underlying the concept of biosphere reserves. Instead, emphasis was placed on national legislation in the form of the Resource Management Act 1991 (RMA). The key idea in the paragraph is “supporting local government”, rather than the biosphere approach of giving local government autonomy to support itself. The same day I received Dr Smith’s response, Alastair Morrison, the Director­General of the Department of Conservation, gave a speech at Lincoln University about building biodiversity in New Zealand in which he criticised New Zealand’s current response to the ecological crisis for being driven mainly

others (eds) Participatory Governance in Multi-Level Context: Concepts and Experiences

(Leske + Budrich, Opladen, 2002).

  1. T O’Riordan and S Stoll­Kleemann “Deliberative Democracy and Participatory Biodiversity” in T O’Riordan and S Stoll­Kleemann (eds) Biodiversity, Sustainability and Human Communities: Protecting Beyond the Protected (Cambridge University Press, Cambridge, 2002) at 87–112.
  2. On multi­governance see J Pierre and BG Peters Governance, Politics and the State

(MacMillan Press Ltd, London, 2000).

  1. Letter from Hon Dr Nick Smith to the author regarding biosphere reserves (7 October 2010).

by economic considerations.16 I felt inspired by his critique and sent him my biosphere reserve opinion together with Dr Smith’s response, hoping for a different view on the issue. Here is an excerpt of the response:17

As you are aware, the key regulator of resource use in New Zealand is the Resource Management Act with its underpinning principle of sustainability. In the case of Waiheke this is reinforced by the Hauraki Gulf Marine Park Act. Laying the principles of biosphere reserves on top of these requirements would not seem to add greatly to the approach already in place.

In terms of governance, New Zealand is a small country and we already have significant local participation in local resource management ...

Designation as a biosphere reserve would not seem to add significant value to the management of resources but would incur costs, not only to local people but also to the Government through participation in the programme. It is hard to see how these costs can be justified. (emphasis added)

Similar to the response from Dr Smith, Morrison’s invokes “local participation” under the national legislative framework, adding that principles of the biosphere reserve, namely local autonomy, “would not seem to add greatly to the approach” — the approach being “the management of resources” in New Zealand by local government. But more importantly, Morrison asserted that “New Zealand is a small country and we already have significant local participation in local resource management”. The argument is that “local autonomy” would not work for a small country such as New Zealand. Instead, “local participation” within a “national” framework would be a more appropriate approach.

It is respectfully submitted that the assessment by Dr Smith and Mr Morrison is inaccurate. As I discuss in part 3 of this article, even international organisations such as the UN and the World Bank disagree with their assessment. The RMA specifically is nowhere near granting local autonomy to combat the crisis. This is clearly evident in the area of climate change. Currently, the RMA is not used for reducing Greenhouse Gases (GHGs).18 These gases were deliberately exempted in 2004. Under the RMA, local authorities are not able to consider the effects of GHGs on climate change when writing local

  1. Alastair Morrison, the Director­General of the Department of Conservation “Building Biodiversity: Building New Zealand” (Lincoln University, 7 October 2010) <www.doc.­doc/news/speeches/al­morrison­at­lincoln­university>.
  2. Letter from Alastair Morrison to the author regarding biosphere reserves (17 November 2010).
  3. Klaus Bosselmann “Carbon Neutrality and the Law” in N Harré and Qu Atkinson (eds) Carbon Neutral by 2020: How New Zealanders can tackle climate change (Craig Potton Publishing, Nelson, 2007) 258.

plans and when granting air discharge consents. The RMA 1991, as amended in 2004, suggests that the effects on climate change can be considered only with respect to the development of renewable energy (ss 7 and 104E). Hence, while in practice the RMA is administered by local authorities, the 2004 Amendment means local government is not allowed to consider climate change. Section 104E explicitly prohibits considering the effects of climate change.19

The fact that the RMA is not geared towards local autonomy (as a response to the ecological crisis) can also be seen in its content and structure. In particular, the rationale behind the Act is the use of “sustainable management” (s 5(2)) rather than “sustainable development”. This not only excludes the wider considerations of social inequities and global redistribution of wealth as envisioned by the Brundtland Commission, but also exhibits a positivist approach to the ecological crisis.20 The RMA looks at local government instrumentally. This is further confirmed by Part IV of the RMA which divides responsibility between three sectors: central government (Minister for the Environment), regional councils, and territorial authorities. Central government furnishes the national policy statement and environmental standards. The local government implements the statement and the standards. The RMA never envisaged local government taking the lead in tailoring responses to the ecological crisis to meet the need of each different locality. In contrast, this article places disembeddedness or delocalisation at the heart of the causes of the ecological crisis.

The article is structured as follows. Following this introduction, part 2 canvasses the causes of the ecological crisis and synthesises these into one proposition: the root cause of the crisis is the move away from locally organised communities and towards the nation­state, and the ensuing agricultural and industrial revolutions which accelerated the negative effects of the crisis. Part 3 considers the historical (Middle Ages) response to the crisis in the European context where evidence suggests that the response was led by local communities. Part 3 also contrasts the modern response (to the crisis) with the historical one, and criticises its emphasis on coordinating the response on a global scale. The article concludes with part 4 which provides suggestions on how to move forward.

  1. See Greenpeace NZ v Northland Regional Council and Mighty River Power Limited [2006] NZHC 1212; [2007] NZRMA 87. Affirmed Greenpeace New Zealand Inc v Genesis Power Ltd [2008] NZSC 112, [2009] I NZLR 730.
  2. See Delyse Springett “Business Strategy and the Environment” (2003) 12 Bus Strat Env 71.


Agrarian societies always had a tendency to push their ecological limits. Peasant families tended to maximize births as a survival strategy. States and entrepreneurs tended to seek a technological edge over local competitors by modifying existing technologies. Mining, in particular, tended to stimulate technological innovations, as its high energy demands continually provoked crises and bottlenecks requiring solutions. Trade and migration provided access to goods, ideas,

and people not locally available, but introducing these could have unforeseen destabilizing consequences.

Edmund Burke III22

Today a number of well­publicised issues came to be known collectively as the “environmental crisis”. These include the destruction of tropical rainforests, acid rain, greenhouse gas accumulation and the polar thawing process, to name just a few. These ecological problems are seeping into the sociological sphere. This can be seen in the increase of respiratory diseases worldwide, violent clashes with demonstrators, and even predictions of the imminent collapse of the climate.23 If we do not put a stop to the environmental crisis, humankind will be decimated.

But in order to put a stop to the crisis, we need to understand how it emerged in the first place. While many different hypotheses have been put forward to explain the root causes of the crisis,24 there seems to be a common thread weaving through all of them, namely the move away from local organising — in one word, disembeddedness.

Some scholars see the universal dogmas of Christianity as fostering exploita­ tive technologies largely responsible for the destruction of the environment,25 even though humans have a long history of environmental destruction going

  1. I refer to the ecological “crisis” rather than “challenge” while cognisant some readers might not agree with that designation. It is my personal belief that a crisis is not just emerging but escalating fast.
  2. Edmund Burke III “The Big Story: Human History, Energy Regimes, and the Environment” in Edmund Burke III and Kenneth Pomeranz (eds) The Environment and World History (University of California Press, California, 2009) 33 at 38.
  3. See, for example, the Planetary Calendar in Klaus Bosselmann When Two Worlds Collide: Society and Ecology (RSVP, Auckland, 1995) at 37.
  4. For a summary of these arguments see Daniel D Chiras Environmental Science (8th ed, Jones and Bartlett Publishers, Mississauga (Ontario), 2010) at 34.
  5. See Lynn White “The Historical Roots of Our Ecological Crisis” (1967) 155 Science 1203.

back well before the advent of Christianity.26 Others identify evolutionary roots to the crisis, where technology­led population growth greatly increased our environmental impact. On the other hand, some see population growth as a result of the way we organise our societies. In 1967 MacArthur and Wilson described two models of reproductive behaviour:27 (1) the “r” strategy, used in unstable environments, which entails producing a large number of short­lived offspring; and (2) the stable­environment “K” strategy of producing limited numbers of offspring, which “is likely to occur where a clearly circumscribed living space is evident”. By this reasoning, expanding populations are making boundaries progressively unstable which leads to hardship, misery and mass death.28

Yet other scholars believe the ecological crisis originated from the spread of democracy as championed by the nation­state, which put land ownership and wealth in the hands of many, and the agro­industrial revolutions, which brought mass production and spread wealth throughout society.29 The transformation of mankind from hunters to farmers through the agricultural revolution caused the first environmental crisis 11,000 years ago,30 with cities playing an important role in bringing about the crisis.31 The industrial revolution intensified the crisis since the 18th century.32 These revolutions caused a cultural acceleration of evolution, which led to “linearity of supply and use of resources” and “singularity of production objective and lack of focus on waste management and pollution”.33 Through the interweaving of overpopulation (biological), self­ interest prevailing over collective interest (psychological), growing mobility, and global interconnectedness (technological) “[t]he balance between humans and their environment ... is upset by external influences, by invasions and the loss of autonomy34 (emphasis added).

The diagnostic discourse above does not identify delocalisation as “the” or even “a” cause of the environmental crisis. However, a closer reading exhumes a strong nexus with delocalisation. The agro­industrial revolutions relied on

  1. See, for example, Russell Christman “Environmental theology” (1980) 14 Environ Sci Technol 1271.
  2. See ER Pianka “On r and K Selection” (1970) 104 American Naturalist 592. For the original work refer to R MacArthur and EO Wilson The Theory of Island Biogeography (Princeton University Press, Princeton, 2001).
  3. Radkau, above n 4, at 7.
  4. See Lewis W Moncrief “The Cultural Basis of Our Environmental Crisis” (1970) 170 Science 508.
  5. Bosselmann, above n 23, at 34.
  6. J Donald Hughes An Environmental History of the World (Routledge, New York, 2001) at 48 and 104.

32 At 136.

  1. Bosselmann, above n 23, at 48.
  2. Radkau, above n 4, at 7.

the production of scales beyond the locale through networks. For example, irrigation networks resulted in centralisation of power and eventually ecological suicide (due to soil salinisation) as documented by the fall of the Sumerian state under the auspices of the (national) Code of Hammurabi (around 1800 BCE) and its strict rules governing irrigation.35

Networks compressed space and time to justify “manufactured” operational scales. Over millennia, settlements grew in size to form cities, which connected to form nation­states.36 Here the genesis of the “growth explosion” was seen both in geographic and demographic terms: populations grew in size, while social organisation occupied a larger footprint. The “growth explosion” had been further accelerated by the industrial revolution through harnessing energy from fossil fuels to do the work hitherto the drudgery of man and beast. Space and time were being further compressed — to a zero dimension. Organisation was now not only on a national scale, but on a global one.

The agro­industrial revolutions are manifestations of delocalisation,37 the precursor of what I refer to as the problem of scale.38 The rise of the unitary nation­state centralised decision­making to pave the way for agro­industrial networks. Human needs became insatiable. From there, it was only a matter of time before the ecological crisis signalled the failure of this organisational approach.39

If delocalisation is the cause of the crisis, it would only be reasonable to expect any response to move back to localism ― autonomous decision-making at the local scale. But is such a reversal possible today, under the unitary nation­ state? The next part investigates this question by examining the response to the environmental crisis in the Middle Ages and in the modern era.


Modern Communist China offers a prime example that a totalitarian, centralised state may use [environmental] problems to legitimise itself, but that it cannot solve these problems satisfactorily with its

35 At 95.

  1. This, however, is not necessarily the only mechanism for the emergence of cities. See, for example, Aidan Southall The City in Time and Space (Cambridge University Press, Cambridge, 2000).
  2. Burke III, above n 22, at 41 and 43.
  3. For a delineation of this point see Ben Gussen “On the Problem of Scale: Hayek, Kohr, Jacobs and the Complexity Ansatz” (paper presented to the 14th International Schumpeter Society Conference, Brisbane, July 2012).
  4. Bosselmann, above n 23, at 44.

top-down methods. Today the water resources in some regions of China are being overused to such a degree that wet rice farming around Beijing is declining as a result of dropping groundwater levels, and the Yellow River, whose waters were China’s terror for thousands of years, barely reaches the sea in times of drought. It would appear that the spirit of cooperation that is necessary for successful water management can be effective, if at all, only on the local level, but not within a framework of a gigantic state.

Joachim Radkau40

In this part the historical (pre­Enlightenment) response to the environmental crisis is contrasted with the current (post­Enlightenment) response under the international law paradigm. The Enlightenment explained human life without regard to metaphysical levels. Its approach to law and governance required positive verification of social norms against rationality and scientific evidence. This “scientific approach” was the precursor to the industrial revolution which, as discussed in part 2 above, culminated with the current ecological crisis.

Unfortunately, responses to the ecological crisis do not follow a few simple basic patterns. The solutions to environmental problems are “often hidden within social and cultural history, and it is there that we must decipher them”.41 Inevitably, however, there are typical response patterns that arise from organising at higher scales. This results in responses to the crisis becoming increasingly42

subject to the laws of power and the preservation of authority ... Environmental history is always also the history of political power — and the more it moves away from practical problems on the ground and into the sphere of high­level politics, the more that is the case. ... Environmental history is inevitably shaped also by the formation of ever larger political and even more expansive economic entities, and by the growing interconnectedness of the world.

In this part I argue that localism (qua local autonomy) was the cornerstone of the historical response to the environmental crisis. In contrast, within the modern approach, under international law, localism is relegated to an instrumental role. This was a direct result of the rise of “positivism”, which in turn emerged from 18th­century Enlightenment. Next I provide a brief account of the historical response to the ecological crisis in the European context. This

  1. Radkau, above n 4, at 110.
  2. At 9.

42 At 10.

then is contrasted with the modern response driven by international law, which also arises from the European context.

3.1 The Historical Response43

Given the European origins of international law, we want to focus on the historical response in the European context. Some 600 years ago, Europe suffered its first ecological crisis (peak timber).44 The response was based on the role of local communities:45

In response to the crisis, local principalities and townships ... enacted laws based on sustainability ... From the end of the fourteenth century, local laws in Middle Europe were guided by sustainability concerns.

The fact that local principalities enacted laws suggests a high level of local autonomy: “[s]ustainability ... was ... always within small communities”.46 Land use was decentralised and fully controlled by local communities. The local communities’ intimate knowledge of their ecosystems allowed for informed decision­making, while the form and extent of land use could be easily adjusted to changing ecological conditions. Put differently:47

Historians, who are fascinated by long­distance trade, have often overlooked that, until very recently, humanity’s food supply was largely dependent on local and regional subsistence, and that an effective response to environmental problems was most likely to occur at those levels — if at all.

In summary, the response to the ecological crisis was localised, both through the legislative and administrative functions of governance. This response ensured common interests had preference over individual interests, while the aim of (often rotational) land use was optimisation rather than maximisation.

  1. Since I am interested in contrasting the historical and modern responses, I limit my analysis to the European context, as it is this context that “manufactured” what came to be known today as the modern response.
  2. Klaus Bosselmann The Principle of Sustainability (Ashgate, Aldershot (UK), 2008) at 9–25, 40–41.

45 At 14.

46 At 15.

47 Radkau, above n 4, at 10.

3.2 The Modern Response

In contrast, the post­Enlightenment response, whether from secondary sources such as academic commentary, or primary sources such as UN declarations, is mainly conceived at the global and national levels. Local communities are largely relegated to an instrumental role in implementing the policies of the international society, with its nation­states and non­state actors such as non­ governmental organisations (NGOs).48

The new crisis also started as one of deforestation, this time caused by rapidly increasing economic demand (from 1650 onwards). The new crisis emerged under the feet of the industrial revolution. The revolution had three transformational aspects:49 (1) the environmental aspect with fast­growing populations causing the agricultural system to expand its boundaries; (2) the philosophical aspect with the Newtonian mechanistic­atomistic image of nature favouring its exploitation over ecological sustainability; and (3) the energy aspect where renewable energy resources were replaced by fossil fuels.

The Enlightenment consummated an unholy alliance between the state and the economy.50 The state externalised the environmental costs which should have been borne by those causing them, especially the costs for “freely available goods” like air and clean water. Economic calculations listed only that which increased material prosperity. The economy was basically living off the destruction of the environment. The state shared the ecological blindness which

  1. For example, the word “local” does not even appear in the Preamble of Agenda 21 (United Nations Conference on Environment and Development, Agenda Item 21 (1992)). Instead, it is the “global partnership” and “[n]ational strategies [that] are crucial in achieving” the successful implementation of Agenda 21 (see para 1.3). Nevertheless, Agenda 21 advocates “increased local control of resources, local institution­strengthening ...” (3.4(b)), and stresses “the empowerment of local and community groups through the principle of delegating authority ...” (3.5(a)). However, even when Agenda 21 refers to “local authorities” it is their supporting role to strategies developed at the national level that seems to permeate the response: “Local authorities ... assist in implementing national and subnational environmental policies ...” even when establishing “local environmental policies and regulations” (28.1). The absence of any reference to the local scale in the Preamble makes it difficult to see the Agenda advocating other than an instrumental role for local communities. At best, Agenda 21 envisages a “New Localism” approach where devolution takes a managerial rather than political character. See < agenda21>. The International Council for Local Environmental Initiatives (ICLEI) does not fare much better on the local front. The ICLEI mission is “to build and serve a worldwide movement of local governments to achieve tangible improvements in global sustainability with special focus on environmental conditions through cumulative local actions” (ICLEI, Charter 1.3). Nevertheless, its local action principles are guided by the Earth Charter (ICLEI, Charter 1.7). The shortcomings of the latter vis­à­vis enabling an effective local response are discussed in part 3.3 of this article. See <>.
  2. Bosselmann, above n 44, at 15.
  3. Bosselmann, above n 23, at 64.

also characterises the traditional economy. “The state structure is therefore in no way ‘neutral’. It favours a way of thinking which sees economic prosperity as the basic requirement for human existence.”51

It took governments until the second half of the 20th century to realise that some environmental safeguards may be needed. Not surprisingly, international agreements approached the subject primarily from a utilitarian perspective that sought to maximise economic exploitation. This approach was moderated in the 1960s when governments began to demonstrate concern over the general state of the environment. But even the new public environmental laws of the 1960s and 1970s added only certain environmental duties to otherwise unrestricted private property rights.52

The current response can be summarised as a legal approach to environ­ mental questions where “the [nation­]state is the central actor, co­operation between states the dominant process, international law the desirable outcome, and the creation of new international institutions the method of implementation”.53 The most common method for conducting the “response” process is “the big, set­piece international conference, usually organised under the auspices of the United Nations”54 — think the Copenhagen Summit in 2009, Cancun in 2010, and the Rio+20 Earth Summit in 2012. The response is driven by legal protection through the international society (both nation­states and NGOs) and its international law instruments.55 Here the main actor is the nation­state rather than local communities.

Nevertheless, while sovereignty has long served as the backbone of public international law, the power of the nation­state was also somewhat diluted by the rise of the international law paradigm.56 The challenge for the decades to come is how to balance state sovereignty with localism. If we are able to accept “relative sovereignty”, are we also able to accept the divided sovereignty of “federal polity” as an alternative to the nation-state?57

51 At 71.

  1. Bosselmann, above n 44, at 15–16.
  2. Tony Evans “International Environmental Law and the Challenge of Globalisation” in Tim Jewell and Jenny Steele (eds) Law in Environmental Decision-Making: National, European, and International Perspectives (Oxford University Press, Oxford, 1998) 207 at 207–208.

54 At 208.

  1. See Alexandre Kiss and Dinah Shelton International Environmental Law (3rd ed, Transnational Publishers, Ardsley (NY), 2004) at ch 1.
  2. See Niko Schrijver “The Dynamics of Sovereignty in a Changing World” in Konrad Ginther, Erik Denters and Paul Jim de Waart (eds) Sustainable Development and Good Governance (Kluwer, Boston, 1995) 80.
  3. See Donald Livingston “Secession and the Modern State” (1996) Stalking the Wild Taboo


Large­scale states cannot know enough about local conditions to devise and enforce suitable policy, while multiple polities could easily learn from one another which practices are best. The counterargument is that local, small­scale environmental management runs into difficulty in cases where the things to be managed (such as air pollution) are global ― move from one jurisdiction to another. Historically, of course, few of these things were subject to much regulation. The fallacy of this “complexity imperative” is in that the perceived complexity is not inherent. I address this illusion in more detail later in this part. Given current international law discourse, even in aspirational instruments such as the Earth Charter (see below), it seems that nation­states rather than local communities would still continue to be the principal actors in international relations. This reliance on a nation­state­centred form of governance may have disastrous consequences. For example, Tony Evans argues that international law cannot deliver the conditions for an effective response to the ecological crisis.58 The “international society”,59 like positivism, does not offer a convincing view of history. Both fail to realise that the state is not a fact of nature, but a historic solution to the problem of increasing complexity in economic, social, and political life, first recognised in the 17th century. International society is therefore a conservative approach that views all new problems through the

prism of familiarity.

Moreover, Evans indicates that globalisation is changing the role of the state from being an active policy­maker to a passive unit of administration. Transnational corporations (TNCs) and multinational corporations (MNCs) modulate the ability of the state to legislate environmental laws by shopping for jurisdictions with less stringent regulations. Now the Nébuleuse (eg WTO and G20),60 which are not democratically elected (at least directly), dictate governance on national governments. From this perspective, the role of international law is to legitimise the “technical fix” that supports particular global interests.61 International law offers an illusion of orderliness that deflects attention from wide­ranging, fundamental disagreement when thinking about the environment.

However, Evans does not suggest localism as an alternative. Similarly, the critique by Birnie and Boyle does not discuss localism.62 They argue that while

  1. Evans, above n 53, at 208 and 209.
  2. The “international society” approach assumes that states do not subscribe to a limited set of rules that serve their common interests. However, the approach assumes that states are the active agents of change, with the capacity to reach and implement co­operative agreements.
  3. The term Nébuleuse is used by RW Cox to refer to “a group of formal and informal organizations without democratic pretentions”. See RW Cox “A Perspective on Globalisation” in JH Mittelman (ed) Globalization: Critical Reflections (Lynne Rienner, London, 1996) 21, cited in Evans, above n 53, at 220.
  4. Evans, above n 53, at 222.
  5. PW Birnie and AE Boyle International Law and the Environment (2nd ed, Oxford

international organisations, such as the UN, have been exercising powers of international governance for over a century,63 the historical background and original goals of the UN and its agencies have not generated a system that is well suited to synthesising environmental and developmental goals — a fusion that the United Nations Conference on Environment and Development (UNCED) identified as the key issue in the achievement of sustainable development.64 But they too seem resigned to the inevitability of a globalised response.

Some academics inch closer to localism by arguing for a “new institu­ tionalism” but only to move yards away. For example, Oran Young directs attention to governance instead of government and to institutions instead of organisations.65 While he discusses decentralised political systems in which governance without government is the rule rather than the exception, he is quick to also point to the existence of difficulties under such a decentralised system where there are links between efforts to protect the environment and to promote economic development. Young never takes the additional step of looking at localisation of the decision­making as a rudimentary organisational form that provides governance in the absence of government, at least as typified by the nation­state. I suggest that the distinction between governance and government is one of scale, where larger organisational blueprints require a hierarchical complexity that leads from social institutions (rules of social practice) to organisations (the material actors in social practices). At the micro level, within a given locality, the power distance between governance and government is minimal. This of course would result only where the locality has local autonomy that minimises its dependence on higher organisational scales, whether national or global.

The above analysis of the international law approach highlights the move away from localism. The difficulty with international law can also be seen in one of the most important documents in the response to the ecological crisis

— the Earth Charter. Next the Earth Charter is deconstructed to illustrate its aspirations vis­à­vis localism.

University Press, Oxford, 2002) at 34–37, 47–57, 66–71.

  1. The UN is only part of international governance. Other organisations include supervisory bodies, conferences, and commissions established by environmental treaties. Inter­ governmental organisations such as the UN, the International Maritime Organization, the Food and Agriculture Organization, the UN Educational, Scientific and Cultural Organization, and the International Atomic Energy Agency, among others, have provided the principal fora in which much of the interstate cooperation necessary for developing international environmental policy and regulatory regimes has been realised.
  2. Birnie and Boyle, above n 62, at 69.
  3. Oran R Young International Governance: Protecting the Environment in a Stateless Society

(Cornell University Press, Ithaca (NY), 1994) at 12–32.

3.3 Localism and the Earth Charter66

The Earth Charter represents the flagship in the discourse of the modern response to the ecological crisis. The reputation and credibility of the Earth Charter rests largely on its transnational, cross­cultural, interdenominational approach.67 In terms of international law principles, the Earth Charter represents prima facie a draft legal document. While the legal status of a number of the principles in the Earth Charter is disputed, most of these principles are frequently referred to in treaties, conventions, and other binding documents. Although the Earth Charter is not yet recognised as a “soft law” document, it has all the ingredients to become one.68 The 2002 World Summit on Sustainable Development (WSSD) in Johannesburg made reference to the Earth Charter and its Political Declaration adopted language similar to that in the Earth Charter Preamble.

Turning now to a textual analysis of the Charter, my interest is to evaluate its “sensitivity” to localism as a response to the ecological crisis. Hence, I am looking for signifiers such as “interdependent”, “local”, “nation”, “global”, “universal” and “community”. In particular, two signifiers stand out. The first is the prominent place reserved for the nation­state in the Charter. The second has to do with the way localism is narrated throughout the Charter, especially in relation to national, regional and global organisational scales.

The text of the Charter provides valuable insights. The Preamble declares that “[w]e stand at a critical moment in Earth’s history”, and suggests that “[t]he dominant pattern of production and consumption are causing environmental devastation ... and a massive extinction of species”. In “The challenges ahead”, the Charter suggests that “[w]e need a global partnership to care for [the] Earth”. This ushers in the concept of “Universal responsibility”: this means living “with a sense of universal responsibility, identifying ourselves with the whole Earth community as well as our local communities”. According to the Charter “[w]e urgently need a shared vision of basic values to provide an ethical foundation for the emerging world community”.

The word “local” (as a noun and as an adverb) appears in the Charter five times, while the world “global” appears 13 times. The word “local” never

  1. The Earth Charter (launched 29 June 2000). See “Earth Charter Initiative” (2012) <www.>.
  2. Klaus Bosselmann and Prudence Taylor “The Significance of the Earth Charter in International Law” in Blaze Corcoran (ed) The Earth Charter in Action: Towards a Sustainable World (KIT Publishers, Amsterdam, 2005) 171.
  3. For more on the legal status of the Charter see Imke Sagemüller “The International Recognition and the Legal Status of the Earth Charter” in Klaus Bosselmann and J Ronald Engel (eds) The Earth Charter: A framework for global governance (KIT Publishers, Amsterdam, 2010) 41.

appears in any headings, while “global” appears in the “The Global Situation” heading in the Preamble. The word “local” appears in clusters, while “global” is sprinkled throughout the whole text. The word “local” first and second occurrences are clustered under “Universal Responsibility” in the Preamble, the third and fourth occurrences are under Principle 13, and the last occurrence is in “The Way Forward”.69

The world “local” appears first in the Preamble under the “Universal Responsibility” heading in the expression “identifying ourselves with the whole Earth community as well as our local communities”. In the next sentence under the same heading one finds the second occurrence of the word “local” where it is also contrasted with the global scale: “We are at once citizens of different nations and of one world in which the local and global are linked ”. The third occurrence comes under Principle 13(b), where the word “local” enters in the entourage of three higher scales: “Support local, regional and global civil society ...” And under 13(f ), the fourth occurrence refers again to “local communities”: “Strengthen local communities, enabling them to care for their environments, and assign environmental responsibilities to the levels of government where they can be carried out most effectively.” The last time “local” appears is in “The Way Forward” where it is also linked with higher scales: “We must imaginatively develop and apply the vision of a sustainable way of life locally, nationally, regionally, and globally” (emphases added).

The word “nation” and its derivatives (“national”, “international”, “transnational” and “multinational”) appears in the Charter around 20 times — more than both “local” and “global” combined. This to this author indicates still a central role in the Earth Charter for the nation­state, not very different from the malaise discussed earlier in relation to the state­centred approach under international law. There is a logical explanation for this inclination towards nation­states. The Charter builds on the 1992 Rio Declaration principles towards a more inclusive ethical vision that nation­states could not reach in the Rio Summit. Reasonably, then, the Charter would be geared towards the nation­state as the main actor. In particular, the Charter “builds on and extends international environmental and sustainable development law”.70 It is hence difficult to see how the Charter can be touted as a platform for an effective response to the ecological crisis.

In particular, a deconstruction of the Charter in relation to the “nation” discourse and its satellites of “local” and “global” suggests that the Charter, at best, furnishes a positivist vision for local communities where these

  1. The Earth Charter, above n 66, at 3 and 4.
  2. “A Short History of the Earth Charter Initiative” (2012) The Earth Charter Initiative <www.>.

communities are only instrumental — supporting national and global decision­ making structures.

A more detailed analysis of the Charter text reveals three main concepts driving the discourse. First is what was referred to as the “complexity imperative” advocating the inevitable interdependence and interconnectedness of our world. The second concept flows from the first: given the complexity in the world today, any response to the challenges we face will have to be “universal” and “global” while still being connected to the lower scales of local, national and regional; essentially arguing for a hierarchy on a colossal scale. The third concept is that of “human rights” which are “universal” due to the second concept but also moderated by duties and responsibilities arising from the first. All three concepts are then employed by the nation-state to respond to world challenges, in particular the ecological crisis. These concepts are now traced throughout the Charter.

The Preamble emphasises that we are at a critical juncture in our (and Earth’s) history. The Preamble talks about a world that is becoming “increasingly interdependent ”, hence invoking the “complexity imperative”. The same imperative appears under the “The Challenges Ahead” heading where it is declared that “[o]ur environmental, economic, political, social, and spiritual challenges are interconnected ”. According to the Charter, this inter­ connectedness requires a sustainable global society founded on, inter alia, “universal human rights” and “a sense of universal responsibility” (emphases added).

Hence, given the high level of interdependence of the world we live in, a universally coordinated approach to the ecological crisis is needed. It should be obvious that the “interdependence” (or what I call the “complexity imperative”) is taken as a premise. The Charter never questions the genesis of this complexity or whether it is inherent in the world we live in. The concepts of “interdependence” and “interconnectedness” are taken as static concepts not amenable to re­engineering. The Charter does not identify reducing interdependence as a tool to produce a more efficient and more effective world. Per the Charter, complexity is here to stay, if not increase.

While it seems the Charter is still sensitive to a structural connection between the organisational scale (local versus higher­order organisation such as the national and the global) and the ecological crisis, this is only superficial. For example, under the “The Global Situation” heading, the Charter acknowledges the local, noting that “[c]ommunities are being undermined”. Also under the heading “Universal Responsibility” the Charter emphasises a local dimension to “universal responsibility” by “identifying ourselves with the whole Earth

community as well as our local communities”. Here the discourse identifies two scales — the local and the global — and suggests a strong link between the two due to the high interdependence of our world. Up to this point, the Charter seems to be saying: think globally, act locally. But later on, as I explain next, this set­up becomes diluted with the introduction of other scales, in particular the national and regional scales.

The Charter marginalises localism as the root cause to the ecological crisis. For example, under the “The Global Situation” heading, the Charter identifies the “dominant patterns of production and consumption” as the causes of the ecological crisis: “The dominant patterns of production and consumption are causing environmental devastation ... .” Under the same heading, the Charter identifies a consequence of the “dominant patterns of production and consumption”, namely the “rise in human population” as resulting in “overburdened ecological and social systems”.

The Charter does not define the “dominant patterns of production and consumption”, at least not directly. It however provides glimpses of their characteristics under its Principles. In particular, Principle 7 suggests that the “dominant patterns” do not emphasise “material sufficiency in a finite world”. They are not efficient in that they do not require “restraint and efficiency when using energy” (7(b)), and do not rely enough on “renewable energy sources such as solar and wind” (7(b)). The “dominant patterns of production and consumption” do not “[i]nternalize the full environmental and social costs of goods and services in the selling price” (7(d)).

The “dominant patterns” can be interpreted as delocalisation (or disembeddedness). We can establish a link between these patterns and: (1) existing technologies flowing from the industrial revolution; and (2) to the current organisation of societies under the nation­state (no internalisation given the alliance between the state and the economy). The “dominant patterns of production and consumption” are the product of state policies, including those favouring the economy in the positivist sense, namely where communities are seen as means towards economic growth rather than ends in themselves. As I argue in part 2 above, the industrial revolution and the nation­state can be interpreted as arising from a delocalisation of decision­making, which has been identified as putting us on the route to “environmental devastation”.

This construction of “dominant patterns” as delocalisation is only inferential. The “dominant patterns” discourse marginalises localism by not explicitly positioning delocalisation at the centre of the causes of the ecological crisis. More importantly, this discourse “frees” the local scale only as a synecdoche of the global scale: “ombra mai fu” (a shade there never was)71 of

  1. The phrase “Ombra mai fu” comes from Handel’s 1738 opera Serse.

the inherent tension between local and hyper­local scales.72 In other words, the Charter aspires to an abstract scalar harmonisation reminiscent of the fractal organisation of a snowflake,73 where denizens are inevitably transformed into citizens.74

Under the heading “The Challenges Ahead”, the Charter provides the only available choice for a response to the crisis: a “global partnership”. This “global partnership” would require “fundamental changes” in “values, institutions” and our “ways of living” that would lead to reducing our “impacts on the environment”. The “global partnership” would foster the emergence of a “global civil society” and the emergence of a “world community” that creates new opportunities to build a democratic society. Later on, when I discuss “The Way Forward”, it becomes clear that the proposed partnership is one driven mainly by the nation-state. But first I analyse the Charter’s principles.

The Earth Charter Principles are organised under four pillars which I discuss below.

(i) Respect and care for the community of life

Under this principle the interdependence of all beings is emphasised.75 In 2(a) the natural rights discourse is explicitly qualified with the existence of duties, namely “duty to prevent environmental harm”. Similarly, in 2(b) there is “increased responsibility to promote the common good”. Under 3(a) there is reference to “communities at all levels” guaranteeing “human rights”.

(ii) Ecological integrity

In 5(a) there is again explicit reference to adoption of policies “at all levels”. In particular, there is explicit emphasis on the “complexity imperative” in 6(c) where the Charter requires ensuring “decision making addresses the cumulative, long­term, indirect, long distance, and global consequences of human activities”.

  1. For a discussion of the tension between scales see Bronislaw Szerszynski “Local Landscapes and Global Belonging: Toward a Situated Citizenship of the Environment” in Andrew Dobson and Derek Bell (eds) Environmental Citizenship (MIT Press, Cambridge, 2005) 75.
  2. See, for example, Gerald Edgar Classics on Fractals (Westview Press, Boulder, 2004). 74 Szerszynski, above n 72, at 92.

75 The Earth Charter, above n 66, at 2.

(iii) Social and ecological justice

Under 9(a) the Charter distinguishes only two levels of resources (scales): “national and international”. The same dichotomy is seen in 10(a): “within nations and among nations” in relation to distribution of wealth. A reference to “indigenous peoples” is found in 12(b); and a reference to “our community” is found in 12(c). Again there is no direct reference to locality here.

(iv) Democracy, non­violence and peace

Here a more elaborate hierarchy is referred to under 13(b): “local, regional and global civil society”. The protection of rights features again in 13(c). In 13(f ) the most important statement in relation to localism is stated in a recommendation to “[s]trengthen local communities, enabling them to care for their environments, and assign environmental responsibilities to the levels of government where they can be carried out most effectively” (emphasis added). However, as in the previous text, the Charter is quick to introduce all other “levels of government” into the discourse. To this author, this still points to an instrumentalist approach to local, albeit strengthened, communities.

In “The Way Forward”, the Charter explains that to commit to the above principles we need a change in heart and mind. This means making choices between different values. According to the Charter, the partnership of government, civil society, and business is essential for effective governance. Moreover, the Charter emphasises the “need to renew commitment to the United Nations”. Here there is further appeal to “global interdependence” and “universal responsibility”. A higher hierarchy is referred to. Now the local is part of “locally, nationally, regionally, and globally”.

In essence, “The Way Forward” is predicated on “nations” renewing “their commitment to the United Nations”.

From the above analysis, the Charter, at best, gives a confused account of the importance of localism. As we move down the text we see the local scale pushed further down a hierarchy of scales: first the global scale is introduced, then the regional scale is added, and finally the national scale. The “local” of the Earth Charter is not very different from the local in a positivist sense. It is instrumental in a top­down hierarchy. This last point is explicit in assertions that the Charter “could be considered a starting­point for a dialogue on a future global constitution”.77

  1. At 4.
  2. Klaus Bosselmann “Outlook: The Earth Charter ― a Model Constitution for the World?”

The instrumentality of the “local” becomes evident when the Earth Charter is compared to the draft World Charter of Local Self­Government.78 The Preamble of the draft World Charter reads as follows: “many global problems

... must be dealt with at the local level and cannot be successfully resolved without intensified dialogue and cooperation between the State [sic] level and local authorities”. The key word in that sentence is “authorities”. Here the discourse is of “local authorities” rather than “local communities” as under the Earth Charter. This emphasises a tension between the nation­state and local communities, and hence there is a need for “dialogue”. The draft World Charter elevates the status of “local authorities” to partners of the state: “local authorities as the closest partners of central governments and as essential in the implementation of Agenda 21 and the Habitat Agenda”. The draft World Charter in fact makes explicit reference to the principle of subsidiarity, one of the enablers of localism, suggesting that “the principle of subsidiarity is the basis for democratic and participatory development and that any allocation of tasks and responsibilities should abide by this principle”. The word “decentralisation” is used explicitly in the draft World Charter: “promoting decentralization through democratic local authorities and to strengthen their financial and institutional capacities”.

While I do not suggest that the draft World Charter of Local Self­ Government goes far enough in enabling localism, contrasting its language with that of the Earth Charter reveals how marginalised localism is under the latter.

In the rest of this part, a new critique of the international law approach is formulated, one based on questioning its central tenet — namely the justification for the move from the local to the global.

3.4 How the Modern Response Marginalised Localism — the Fiction of “Indigenous Peoples”

While the environmental and economic strategies of today are diluting the colonial notions of sovereignty, and limiting state autonomy by “sustainable development”, “intergenerational equity”, “common heritage of mankind” and “shared responsibility”,79 there is still vivid evidence of the hostility that

in Klaus Bosselmann and J Ronald Engel (eds) The Earth Charter: A framework for global governance (KIT Publishers, Amsterdam, 2010) 239.

  1. This draft is inspired by the European Charter of Local Self­Government, ETS No 122 (open for signature 15 October 1985, entered into force 1 September 1988). See Klaus Töpfer and Heinrich Hoffschulte “Towards a World Charter of Local Self­Government” (1998) United Nations Centre for Human Settlements (Habitat) <­gov/ charter.html>.
  2. See, for example, Shane Nicholls “Reconciling ‘Power’ in Sovereignty, Ethics,

the modern state has to localism. As I argue below, the modern response to the ecological crisis marginalised the idea of localism by, first limiting its applicability to minorities and what came to be known as “indigenous people”, and second constructing the discourse of “indigenous peoples” self­ determination as an extension of the natural rights approach. The invention of the idea of the “indigenous people” by the modern state, and its continued use in international law discourse, are living testaments of that marginalisation.

It is conceded that the redefinition of the doctrine of state sovereignty has largely been observed and is becoming visible in the relationship between states and ethnic minorities and indigenous peoples.80 But even then, international law still has a state­centred paradigm that is counterproductive to self­determination. While environmental issues have shifted the paradigm of international law from competition to cooperation, from international to transnational governance (and while today international law seems more willing to accommodate indicia of self­determination such as autonomy, control over natural resources, preservation of land, education, language and cultural identity), it cannot be said that a rigorous right of self­determination has been or will likely ever be fully endorsed by international law.81

There are today agreements with direct involvement of indigenous people and their right to self­determination. For example, the International Labour Organisation (ILO) Convention No. 169, which is a legally binding international instrument, stipulates measures for the realisation of cultural rights.82 Article 7 acknowledges the right of indigenous people to determine their priorities for development and preservation of the environment. And art 14 recognises the right of ownership of traditional areas as well as use rights.

There is also the United Nations Declaration on the Rights of Indigenous Peoples.83 Article 3 asserts the right of indigenous people to self­determination. Article 31 defines the right as local autonomy in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activity, land and resource management, environment and entry by non­members, as well as means of financing these autonomous functions. Article 25 talks about

Globalisation and the Earth Charter” in Klaus Bosselmann and J Ronald Engel (eds) The Earth Charter: A framework for global governance (KIT Publishers, Amsterdam, 2010) 143.

  1. Niko Schrijver “The Dynamics of Sovereignty in a Changing World” in Konrad Ginther, Erik Denters and Paul JIM de Waart (eds) Sustainable Development and Good Governance (Kluwer, Boston, 1995) 80.
  2. For a discussion of this point see Klaus Bosselmann “The Right to Self­Determination and International Environmental Law: An Integrative Approach” (1997) 1 NZJEL 1.
  3. Convention concerning Indigenous and Tribal Peoples in Independent Countries (adopted 27 June 1989, entered into force 5 September 1991), art 2.
  4. United Nations Declaration on the Rights of Indigenous Peoples A/RES/61/295 (2007).

strengthening the distinctive relationship to land (material and spiritual) and art 26 acknowledges the right to restitution to land or compensation. Finally, art 28 talks about restoration and protection of the total environment. Here the right to self­determination covers a wide range of cultural rights and land rights and links itself to the right of autonomy and self­government, but nevertheless in doing so it makes no claim to territorial sovereignty or secession. The Declaration is subjugated to international principles of territorial integrity.

Conversely, neither the 1992 Rio Declaration with its Agenda 21, nor the Statement of Forestry Principles and Biodiversity Convention, give any recognition of a right to self­determination.84 They do however reflect much of the content forming this right. Article 22 of the Rio Declaration on Environment and Development mandates that indigenous people play a vital role in environmental management, and states should enable their effective participation. The ILO Convention No. 169, the Draft Declaration and the NGO UNCED treaties offer valuable guidelines on what constitutes “vital role” and “effective participation”. Chapter 26 of Agenda 21 is specifically concerned with indigenous people. Section 26.1 notes the historical relationship with their lands. Section 26.2 specifically refers to the ILO Convention No. 169 and the Draft Declaration. Section 26.3 requires full partnership between governments and indigenous peoples. Chapter 26 also describes important aspects of the right to self­determination in the notions of intellectual property and protection of indigenous lands and culture. The importance of indigenous people is similarly recognised in Principle 12(d) which regulates the utilisation of indigenous knowledge.

As to the Convention on Biological Diversity, there is a gap between indigenous objectives and the Convention. The same may be said for the gap between the right to self­determination and the whole UNCED process. While art 10 protects customary use of biological resources, the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (non­binding) provides a more comprehensive response than the Convention. Article 2.6 states that flora and fauna bound to territory.85 Article 2.7 requires that commercialisation of traditional plants be managed by indigenous people. Article 2.8 calls for a moratorium on commercialisation of indigenous genetic resources until indigenous communities have developed appropriate measures. While there is no commonly agreed definition of “indigenous people”,

in 1982 the Working Group on Indigenous Populations (WGIP) provided a widely accepted definition. Others such as the ILO or the World Bank provided specific­purpose definitions of indigenous people. The WGIP

  1. Rio Declaration on Environment and Development A/CONF.151/26 (Vol. I) (1992).
  2. Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples

(entered into force 30 July 1993).

defines “indigenous people” as “the descendants of the original inhabitants of conquered territories possessing a minority culture and recognising themselves as such”.86 While this definition is widely accepted today, it contains a number of inaccuracies. First, they are not necessarily a minority in the host state. Second, they might not have been conquered but have entered into a treaty as the means of colonisation. Third, the notion of descendants lacks a clear definition (eg by self-identity, blood quantum or cultural practice?). Finally, if broadly conceived, the WGIP definition means that any stateless group is “indigenous”: eg the Basques, Tibetans, etc. But is this broad conception an inaccuracy?

Two ideas are at the heart of the WGIP definition. These are embodied in the phrases: (1) “original inhabitants”; and (2) “conquered territories” (emphases added). There is here reference to locality in both time (original) and space (territories). But there is also a reference to a singularity or an interruption of that locality through the act of conquering. If we remove that singularity we can define “indigenous people” as the original inhabitants of a given locale. Here then we can see that “indigenous peoples” are basically local communities, but ones that have a “jurisdictional footprint” that is separate and distinct from that of the conqueror.

It is not a radical proposition to assert that all local communities, especially those endowed with or vying for self­determination, are “indigenous people”. Local denizens are “indigenous people”. Even the conquerors (whether the Europeans in the last 500 years, or other ancient civilisations) are “indigenous people”, the difference being that these conquerors mutated from their “Dionysian” roots to an “Apollonian” existence where they monopolised the evangelisation (of one form or another) of a universal discourse (Christianity, Islam, Communism, etc).87

But seeing all local communities as “indigenous people” vying for self­ determination is problematic to the unitary nature of the modern state. This explains why the notion of “peoples” has been controversial in international law. The notion is referred to in art 1(2) of the UN Charter: “respect for the principles of equal rights and self­determination of peoples” (emphasis added). However, for fear of competition with sovereignty, states are adamant that indigenous groups refer to themselves as “indigenous people” rather than “peoples”. This way it is hoped the self­determination that “indigenous people” seek is prevented from rolling out to all local communities.

  1. Gilbert Charles “Hobson’s Choice for Indigenous Peoples” (1992) 39(9) World Press Review 26. Cited in Bosselmann and Engel, above n 68.
  2. On the “Dionysian” and “Apollonian” dialectic see Henri Lefebvre The Production of Space (Blackwell, Oxford, 1991) at 178. See also Andy Merrifield “Lefebvre, Anti-Logos and Nietzsche: an alternative reading of the production of space” (1995) 27 Antipode 294.

Self­determination in the context of “indigenous people” employed the international human rights framework rather than the approaches traditionally pursued for self­determination, namely the treaty approach and the territorial approach entailing a home land or a reservation (rather than a secession). The UNCED agreement of 1992 acknowledges that successful environmental management depends on some form of indigenous self­determination. The idea is that indigenous and environmental rights are mutually supportive. The right of environmental self­determination of indigenous people is a prerequisite for effective strategies to protect the environment. There is now a strong argument for a collective human right to self­determination. It is hoped that the application of the human rights approach would allow for flexibility and solutions appropriate to individual situations.88

This leads to the second instrument that the nation­state used to marginalise localism, namely the paradigm of “natural rights”.

3.5 How the Modern Response Marginalised Localism — the “Natural Rights” Paradigm

The other instrument of delocalisation is what came to be known as the concept of “universal human rights”. Weston postulates the following attributes to rights:89 (i) rights limit state power; (ii) the human rights spectrum extends from the most justiciable to the most aspirational; (iii) a human right is universal in character, possessed by all humans everywhere; (iv) rights are restricted as much as necessary to secure the comparable rights of others; (v) human rights are commonly assumed to refer to fundamental rather than non­essential claims. It is the third and fifth attributes that are hostile to the locale: the perceived universality of human rights, and the related perceived (Enlightenment) rationality. Let me explain further.

Following the taxonomy proposed by Karel Vasak, there are three generations of human rights:90 (i) Lockean individual liberty rights; (ii) 19th­ century economic, social, and cultural rights; and (iii) 21st­century collective group rights — the self­determination right being a prime example. Such third­generation rights are acknowledged, for example, in art 27 of the UN Covenant on Civil and Political Rights which addresses the problem of minorities. However, while instruments such as the Genocide Convention 1948, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights acknowledge the basic

  1. Bosselmann and Engel, above n 68, at 14–17.
  2. Burns Weston Human Rights (1986) 6 Hum Rts Q 257 at 262.
  3. Karel Vasak “Human Rights: A Thirty­Year Struggle: the Sustained Efforts to give Force of Law to the Universal Declaration of Human Rights” (1977) 30(11) UNESCO Courier 28.

right to cultural preservation, such instruments are laden with paternalistic and assimilationist tones.

Detractors from the theory of human rights include Burke, Mill, Hume, Bentham, Kant, Montesquieu, Wittgenstein and Austin. Their utilitarian and positivist theories gained ground in the 19th century. This reflected a desire to move away from the metaphysical nature of rights and towards a more “scientific” approach to legal discourse. Hence, we see the introduction of Bentham’s theory of morality. The rights approach got a further hit in the 20th century through Marxist ideology, which saw rights as an egoistic bourgeois property concept. Rights nevertheless played a major role in the transformation from a revolutionary state to a communist society.

The historical development and theories of human rights of the 17th and 18th centuries reveal a common theme. Some rights belong to individuals by virtue of their being humans rather than subjects of a certain state. These rights are inherent, inalienable and universal — but always individual and never communal. Chief among these are the rights to life, liberty, and property. The social contract entails surrendering to the nation­state (through liberal democracy) the right of enforcing these rights rather than the rights themselves. Limits to the exercise of rights could be determined or abrogated only by law (rights protected by constitutional provisions).

The emergence of third­generation (communal) human rights is closely associated with the awareness of the international dimensions of human rights. Today there are arguments for ecological rights. Ecological rights are human rights subject to limitation that recognise that individual freedoms are exercised in an ecological context. There is now a tendency to recognise environmental values at the constitutional level.

One of the primary arguments against an environmental human right is that it is like social justice: it promises something that cannot be fulfilled. On the other hand, international law has adopted the notion of “sustainable development” (eg the 1992 Rio Declaration and Agenda 21 and the 1994 Draft Declaration of Principles on Human Rights and the Environment). Arguably, sustainable development requires linking human rights with the environment. However, the development of the proposed ecological limitations on individual freedom will face political, social, and economic hurdles.91 Communal rights are in opposition to the nation­state, and its distrust of local autonomy.92 The rights discourse is an engine for the production of scale. It enables the creation of structures that are hyper­local. Not only that, but it effaces the local through its universal discourse. Such a human rights paradigm serves well the production

  1. Prudence Taylor “From Environmental to Ecological Human Rights: A New Dynamic in International Law” (1998) 10 Geo Int’l Envtl L Rev 309.
  2. Livingston, above n 3.

of the national and global scales, leading to higher complexity and eventually to collapse (in the form of the ecological crisis).

3.6 How the Modern Response Marginalised Localism — the “Complexity Imperative” Illusion

The explanation for the shift from the local to the global is based on the suggestion that there is a fundamental difference between the agricultural and industrial revolutions. Industrialisation and the ensuing globalisation resulted in a high level of complexity that represents itself in environmental, social, and economic terms.93 The discourse suggests that the complexity of the current system means that local challenges have global ramifications.94 The globalisation of our challenges is the signum of our age. Any global governance system must reflect this fact. “Governance is created as a result of individuals recognising that they are interdependent.”95 This growing interdependence will lead to conflict given the diversity in goals within society. This growing interdependence requires new forms of governance, as democratic processes, while necessary at all levels, will not be alone sufficient to achieve sustainability. Governance for sustainability has its origins in holistic awareness and competence, benign empowerment, social equality, and responsible values, visions, and actions.96 Here democracy is only a means for achieving sustainability. To assess the tension between democracy and sustainability the third way of civil societies is introduced.

The key idea justifying the need for a globally coordinated response to the ecological crisis is “complexity” arising from the interconnectedness and interdependence of our world. The higher level of complexity is seen as requiring a global response to the ecological crisis. This rationale is flawed. It conflates two different types of complexity, namely organised and disorganised complexity.

Complexity comes in two forms: disorganised complexity, and organised complexity.97 Disorganised complexity results from a particular system having a very large number of parts. This type of complexity suggests randomness. It is a problem in which the number of variables is very large, and one in which each of the many variables has a behaviour which is individually erratic, or perhaps

  1. Bosselmann, above n 44, at 22.
  2. Klaus Bosselmann, J Ronald Engel and Prue Taylor Governance for Sustainability (IUCN, Gland, 2008) at 3–17.
  3. At 5.
  4. At 6.
  5. Warren Weaver “Science and Complexity” (1948) 36 American Scientist 536.

totally unknown. The source of disorganised complexity is the large number of parts in the system, and the lack of correlation between its elements.98

In contrast, organised complexity resides in the non­random interaction between the parts. These correlated relationships create a differentiated structure which can, as a system, interact with other systems. An example of organised complexity is a city neighbourhood as a living mechanism, with the neighbourhood people composing the system’s parts.

The rationalisation for the shift from the local to the global seems to identify the complexity of the globalised world as “disorganised complexity”. This is evident in that the proposed solution is to internationalise the response to the ecological crisis. The idea is to enable a higher level of coordination (correlation) between the different parts of the system (the globalised world), and this will enable tackling the challenges of the high level of complexity identified. According to this rationale, sustainability strategy would be bound to fail if not followed everywhere. Socio­economic relationships are no longer purely local — they have global ramifications. Hence, in order to respond to the ecological crisis, we need to ensure that the sustainability principle (as the cornerstone of the response to the ecological crisis) is an integral part of international environmental law.99

However, the type of complexity seen in the global scale is in fact of the second type, the “organised complexity” type. It is this type of complexity that underlines all ecosystems, including the city neighbourhood example cited above. The source of this complexity, and the challenges it represents, do not require a higher level of coordination as suggested by the international response. Instead, this type of complexity emerges from the very existence of the coordination or correlation between the myriad of parts making up the system. To address its challenges, we need to reduce the correlation between the parts, rather than increase it through an international response.

The same critique can be formulated through a different analytical concept

— that of hierarchy. In 1962, Herbert Simon argued that “[h]ierarchy ... is

  1. For a detailed discussion of these two types of complexity see David L Alderson and John C Doyle “Contrasting Views of Complexity and Their Implications For Network­Centric Infrastructures” (2010) 40 IEEE Transactions on Systems, Man and Cybernetics 839.
  2. Note that since 1972, and especially since the Earth Summit in Rio in 1992, the concept of sustainability lost its contours. The current approach of “sustainable development” has no bearing on the original meaning of sustainability. However, sustainability remains a distinct, relevant principle. The 1987 Brundtland Report shaped the new concept of “sustainable development” around the old concept of sustainability. It did so by demanding global, long-term economic justice without sacrificing the Earth’s ecological integrity. But this one-size-fits-all approach is also suboptimal. The continued existence of the principle of sustainability has two important consequences: (1) sustainable development is given meaning and direction; (2) the existing treaties, laws, and legal principles need to be interpreted in light of the principle of sustainability.

one of the central structural schemes that the architect of complexity uses”.100 By a hierarchy Simon is referring to a system that is composed of interrelated subsystems, each of the latter being, in turn, hierarchic in structure until we reach some lowest level of elementary subsystem (in one word “fractal”). Simon adds:101

Empirically, a large proportion of the complex systems we observe in nature exhibit hierarchic structure. On theoretical grounds we could expect complex systems to be hierarchies in a world in which complexity had to evolve from simplicity. In their dynamics, hierarchies have a property, near­ decomposability, that greatly simplifies their behaviour. Near-decomposability also simplifies the description of a complex system, and makes it easier to understand how the information needed for the development or reproduction of the system can be stored in reasonable compass.

The differences between the agricultural and industrial revolutions can be seen as one of degree where organised complexity increased due to an increase in the hierarchical topology of the world. Today there is more interdependence between local communities and between subsystems of the world including man­made ones. It is this increased interdependence that is causing the organised complexity which in turn gives the illusion that delocalisation is essential to tackling the ecological crisis.

It is imperative to point out that I am not arguing for a purely localised response to the ecological problem. I am simply arguing that the same local community­based response should be at the centre of mitigating the ecological crisis. The global response should be subsidiary to the local one.

This is in line with the approach endorsed by other commentators who do not forsake localising the response as the key component of any effective response to the current crisis. For example, Miller analyses the modes of environmental organising since the 17th century canvassing conservationism (management of natural resources), preservationism (preservation of natural resources) and post­conservationist concerns for an environmentally augmented quality of life.102 Miller then goes on to analyse the Reagan­era environmentalism which exemplified the backlash on the environmental movement, not due to environmentalist assault on the industry, but due to government succeeding in controlling the organised environmental movement and/or co-opting its leadership. Miller identifies an ideological rift between

  1. Herbert Simon “The Architecture of Complexity” (1962) 106 Proceedings of the American Philosophical Society 467 at 468.

101 At 481–482.

102 A Miller “Perspectives on Environmental Change” in GAIA Connections: An Introduction to Ecology, Ecoethics, and Economics (Rowman & Littlefield, Savage (MD), 1991) 265.

environmental movements today on how to respond to the governmental back­ lash. The rift is reflected in approaches to issues and in organisational form. According to Miller, the questions of ethics and work standards are best dealt with by grassroots ordinary people. He asserts that:103

If such [government opposition] can push us back to our roots ... to local organizing, to the building of powerful community coalitions, to the development of broadly conceived social strategies and careful delineation of first principles — then the government opposition ... may be successfully survived. (emphasis added)

Miller puts emphasis on the central role of local communities. He suggests that our history is a reminder of the absolute requirement that people work (organise) in their communities and take to the streets to repair injustice of any kind. For our purposes, the importance of what Miller says is his emphasis on “local organizing”. The only way we can reverse the adverse effects of the agricultural and industrial revolutions is through a return to local organising.

This also resonates with the ideas disseminated by Mark Granovetter:104

A fundamental weakness of current sociological theory is that it does not relate micro­level interactions to macro­level patterns in any convincing way.

... the analysis of processes in interpersonal networks provides the most fruitful micro­macro bridge. In one way or another it is through these networks that small­scale interaction becomes translated into large­scale patterns, and that these, in turn, feed back into small groups.

Granovetter defines the strength of ties as a “combination of the amount of time, the emotional intensity, the intimacy (mutual confidence), and the reciprocal services which characterize the tie”.105 Using this framework, the response to the ecological crisis can be seen as a continuation of the traditional localised response, but with an added layer of weak ties linking the local (micro) to miso levels (the national and the regional) and these in turn to the global (macro) scale. These weak ties ensure all scales are subsidiary to the local. Such an approach would be in complete discord with the international law approach that dominates the current response to the ecological crisis.

A similar idea to Granovetter’s can be seen in the concept of diakoptics (or method of tearing) in systems theory. This method enables solving of problems

103 At 266.

104 Mark Granovetter “The Strength of Weak Ties” (1973) 78 AJS 1360 at 1360.

105 At 1361.

associated with large­scale systems.106 The method involves breaking a system down into subsystems which can be solved independently before being joined back together to obtain a solution to the whole problem. The logic behind this method is the ability to reduce the “complexity” of large­scale systems by breaking these down into smaller, simple systems, and then rejoining these in a loose network. The method accentuates the effect of scale on complexity. The argument I am making here is analogous to diakoptics: in order to provide an effective response to the ecological crisis, we need to reorganise nation­states (the large­scale systems) into autonomous local authorities (subsystems) which can respond to the ecological crisis independently before being joined back together in a bottom­up globalised response.

3.7 Summary

Part 3 of this article has looked at the responses to the ecological crisis both historically and in modern times. What is apparent is that localism was at the crux of the historical response. However, since the rise of the nation­state, localism has been marginalised through three main instruments: the indigenous people discourse, the universal human rights paradigm, and the complexity imperative illusion. This marginalisation of localism can be seen in the international law approach to the crisis and in its instruments. Even the Earth Charter is “guilty” of such marginalisation.


Let us accept the fact that states have lifecycles similar to those of human beings who created them. Hardly any Member State of the United Nations has existed within its present borders for longer than five generations. The attempt to freeze human evolution has in the past been a futile undertaking and has probably brought about more violence than if such a process had been controlled peacefully. Restrictions on self-determination threaten not only democracy itself but the state which seeks its legitimation in democracy.

Prince Hans­Adam II of Liechtenstein, speaking to the International Institute for Strategic Studies on 25 January 2001

106 G Kron Diakoptics — The Piecewise Solution of Large Scale Systems (MacDonald, London, 1963).

Through the lens of the historical and modern responses to the ecological crisis, an alternative interpretation of history emerges: as a struggle between alternating forces of centralisation and decentralisation — from the small to the large to the colossal and then eventually back to the small. While both centralisation and decentralisation are required at different junctures in the human saga, now it seems the pendulum is shifting to decentralisation.

The cause of the ecological crisis can be understood as a problem of scale resulting from a move away from localisation. This started with the agricultural and intensified under the industrial revolution. Parallel to these revolutions there was a rise of the nation­state, their enabler, and its universal natural rights

— adding to the alienation of decision­making from local communities. Today there is yet a new wave of power centralisation through the international society and its push towards globalisation. The end result will be more adverse to local communities than under any nation­state.

The historical response to the ecological crisis was alive to the importance of re­embedding decision­making back into local communities. In contrast the modern response puts more emphasis on global coordination. The modern literature suggests that the move from the global to the local is inevitable given today’s world is far more complex than that of the Middle Ages where the historical response to the crisis took place. However, the nature of this complexity is not inherent in our world. This complexity is man­made and is due to the very reason that caused the ecological crisis in the first place. By assuming that this complexity is here to stay, we simply defeat all effective responses to the crisis. This complexity needs to be reduced by devolving the responsibility to respond to local communities, and then using only weak organisational links between local communities to enable coordination where negative environmental externalities so require.

The only way forward is to have the nation­state playing a supporting role to local authorities. No more should there be a monopoly by the nation­state on the legislative process:107

[W]e must ... question the legitimacy of the modern consolidated state itself

... the modern state, from the very first, was thought of as a large state. Hobbes rightly called it “Leviathan.” Its main goal was what Hobbes called commodious living, and it was thought that economic integration required political integration into a larger polity ... There is no reason today why, here and there, an order of city states cannot again flourish ... The modern state is not a fated existence; it is a human artifact only two hundred years old. And it no longer has the authority it once had. The secession and devolution

107 Livingston, above n 3.

movements in the world today, along with the demonstrated viability of small states, raises new and exciting possibilities. (emphasis added)

The future political world map should have small jurisdictional footprints representing local communities that do not go beyond the scale of cities or small regions. The future should look like Singapore and Hong Kong. This organisational mode, coupled with a tendency to enable local communities to be self-sufficient in all aspects of production and consumption, will simplify the complexity seen in the world today, and therefore provide the hope for an effective response to the ecological crisis.

The above weltanschauung integrates strands from philosophy, economics, systems theory, and organisation theory. In particular, it builds on the emerging perception that the nation­state is moribund. A new world order is emerging. This new order is based on the decentralisation of governance structures towards local communities. At the same time cooperation between local communities will expand to continental dimensions.

What is proposed is not to replace the national or global jurisdiction with local ones, but to allow for competition between different jurisdictions at different scales. For example, we do not need to abolish the euro but have it compete with, for example, the drachma (at the city­region level).108 The idea is to establish evolutionary dynamics by maximising available options.109 The world would still have nation­states but ones that look more like Emmentaler cheese, with “eyes” that represent free cities.110

Dr Smith and Mr Morrison fail to realise that today, notwithstanding failures of the modern response to the ecological crisis, international law is increasingly viewing local governments as vehicles for the advancement of policies on a global scale. Blank explains:111

The traditional legal focus on state actors is shifting on to local governments, giving them independent legal status in the new global order ... The evolving global status of local governments manifests itself in international legal documents and institutions, transnational arrangements, and legal regimes within many countries. To date, however, there has been almost no academic account of this significant legal transformation. International legal theory has

  1. This is in the spirit of Hayekian parallel currencies. For a detailed discussion of Hayek’s perspective, see Anthony Endres “Currency Competition: A Hayekian Perspective on International Monetary Integration” (2009) 41 Journal of Money, Credit and Banking 1251.
  2. See Sean Gould The Theory of Options: A New Theory of the Evolution of Human Behavior

(revised ed, Universal Publishers, Boca Raton (FL), 2007).

  1. To appreciate the role of cities in the proposed evolutionary process refer to Jane Jacobs

Cities and the Wealth of Nations (Vintage Books, New York, 1985).

  1. Yishai Blank “Localism in the New Global Legal Order” (2006) 47 Harv Int’l LJ 263.

remained captive to the centralist and unitary conception of local governments

... In contemporary international legal practice and policy making, however, localities are already being recast as independent semi­private entities, no longer mere state agents subsumed by their national governments. (emphasis added)

The only effective response to the ecological crisis is through an “economy” in the original sense — pertaining to management of the household — the local. Self-sufficiency, even subsistence, is still as relevant to the response today as it was historically.

While I have not argued directly any of the following propositions, I hinted at them by explaining that localism reduces complexity, which alleviates many of the problems we face today. Localism is not just a response to the ecological crisis, but is the key to reining in population growth. It is the long­term strategy to defeat terrorism. Localism addresses the phobias we already have from the rise of China. It even holds the key for a lasting peace in the Levant. Localism is the “democratic” project of our time.

I hope to have highlighted important lessons for New Zealand that go beyond the status of Waiheke as a UNESCO biosphere reserve. This article endorses a proposition for an Emilia­Romagna (Terza Italia) approach to governance in New Zealand.112 This has particular relevance to the Auckland supercity. In essence, Auckland should be given local autonomy and self­ determination, potentially as wide as that granted independent cities such as Vienna, or even Hong Kong. In particular, the status of Hong Kong and Macau as Special Administrative Regions (SARs) with high­degree autonomy (except for acts of state like diplomatic relations and national defence) is more conducive to the wellbeing of Auckland, and by implication, of New Zealand as a whole.

  1. Emilia­Romagna is a region in northeastern Italy with a high level of local autonomy. The region is the home of iconic brands such as Ferrari and Lamborghini, and is one of the richest in Europe. It has its own (Romance) language.

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