International Environmental Law and the Anthropocene’s Energy Dilemma

Louis J. Kotzé

1. Introduction

We have possibly entered the Anthropocene;1 the most recent geological epoch where humans are thought to have become an Earth system altering geological force.2 A defining feature of the Anthropocene is the intimate link between its promethean Anthropos,3 and its mastery of the Earth’s energy sources.4 Because of our exclusive ability to unlock, manipulate and to transform energy in ways that support the ever-expanding human development enterprise,5 humans are exerting unprecedented strain upon an increasingly fragile, erratic and unstable Earth system. The Anthropocene’s energy dilemma is complex, multi-scalar, temporal and multi-faceted and at its core, this dilemma embraces various concerns. Described as a “singular and irreversible event”,6 the widely available and cheap, but carbon rich energy resources we have hitherto exploited, are being depleted at a fast rate and in unsustainable ways (“cheap nature is at an end” as Haraway says).7 The use of these resources is causing widespread pollution, climate change and inter- and intra-species injustices, while their availability, distribution and use are unequal within and among countries, thus leading to profound patterns of North-South and inter and intra-generational Research Professor of Law, North-West University, South Africa; Marie Curie Research Fellow, University of Lincoln, United Kingdom. Research for this paper was supported by the author’s European Commission Marie Sklodowska Curie project titled: “Global Ecological Custodianship: Innovative International Environmental Law for the Anthropocene” (GLEC-LAW) under grant agreement No. 751782 and it was completed in March 2019. I acknowledge with gratitude the many comments received on a first draft of this paper from participants in a workshop held at the University of New South Wales in February 2019 titled, Energy Transitions: Governing Unconventional Gas, Renewables and the Energy-Environment Nexus. I am especially grateful to Professor Lee Godden for her incisive and constructive comments in this respect. All errors are my own. 1 A not altogether uncontroversial proposition. See, A Malm and A Hornborg “The Geology of Mankind? A Critique of the Anthropocene Narrative” 2014(1) The Anthropocene Review 62–69.2 Jan Zalasiewicz et al, ‘The Working Group on the Anthropocene: Summary of Evidence and Interim Recommendations’ 2017(19) Anthropocene 55-60. 3 While the imagery of the Anthropocene tends to be universalistic, it is not the unqualified and generalized “human” that is responsible for the signatures of the Anthropocene and its associated patterns of Earth system destruction, oppression and injustices. Anthropos is most accurately to be understood as being a specific type of human: the ontologically disembodied, consumptive, politically dominant, property-owning, “Northern”, “white”, “male” human subject privileged (despite critique) by neoliberal socio-economic structures of entitlement. This historically privileged subject is a persistent construct, marginalizing a host of “others”. 4 Clark and Yusoff indicate that there are “various energies” including electromagnetic, chemical, thermal, kinetic, electrical, nuclear and gravitational energy. The focus of this paper is specifically on combustible forms of energy where “energy held in the atomic bonds of a fuel is released through oxidation – a reaction with oxygen or an oxygen-rich compound – resulting in the release of heat and the formation of new chemical bonds.” Nigel Clark and Kathryn Yusoff “Combustion and Society: A Fire-Centred History of Energy Use” 2014 31(5) Theory, Culture and Society 203-226 at 204. 5 Stephen Pyne “Maintaining Focus: An Introduction to Anthropogenic Fire” 1994 29(5) Chemosphere 889-911 at 889. 6 Nigel Clark and Kathryn Yusoff “Combustion and Society: A Fire-Centred History of Energy Use” 2014 31(5) Theory, Culture and Society 203-226 at 211. 7 Donna Haraway “Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin” 2015(6) Environmental Humanities 159-165 at 160.

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vulnerabilities, inequalities and injustice. Of further concern are the deeply vested, shortermist, neoliberal political and corporate interests that are exacerbating the energy dilemma while countering any meaningful transition to a sustainable and renewable energy paradigm. This energy dilemma puts society in a “double bind”, as Barnosky says: if humans were to avoid causing a massive population crash equal to pre-Industrial Revolution levels of 1 billion people, we would increasingly need more energy. Yet, if we keep relying on fossil fuels to the extent that we currently do (and the lacklustre global de-carbonization drive does not suggest that this will change anytime soon),8 we will likely cause a massive global species extinction, including our own.9

Often neglected, but equally implicated in the range of factors that feature in the Anthropocene’s energy dilemma, is the role of law. As a “fire species”,10 humans are able to master Earth’s ancient and finite energy sources that have been created and shaped billions of years ago through the clever invention and deployment of technologies and associated neoliberal political, economic and corporate institutions and processes that, in turn, are all regulated by law. Law is therefore a critical part of the social regulatory institutions or “concerted socio-material orderings” that include “[S]pecific practices, institutions and imaginaries [that] have channelled the flow of hydrocarbons in particular directions, volumes and velocities.”11 When contemplating the role of law in facilitating these flows, it is especially international environmental law (IEL)12 that is deeply implicated in contributing to the Anthropocene’s energy dilemma, notably to the extent that IEL has played and continues to play a crucial role in unlocking and enabling the potential of energy-intensive fossils fuels that form the foundation of contemporary society. IEL does so by doing what law does best in the context of energy: authorizing, promoting, incentivizing, allocating, and distributing carbon rich energy generation, flows and use. It also does so by creating, entrenching and strengthening numerous paradigms (such as state sovereignty, anthropocentrism, (neo)colonialism and sustainable development) that all underlie, and promote an unsustainable global energy metabolism.

Yet, while IEL is a central part of the global energy metabolism, it has been far less successful in confronting head on the many negative externalities and socio-ecological impacts resulting from the use of fossil fuels. It has had even less success in facilitating any meaningful transformation of the current unsustainable global energy paradigm, including its failure in contributing to a full scale transition to renewable and sustainable energy resource alternatives that respect Earth system integrity and that are accessible to everyone on equal terms. Of course the same could also be said of, among others, trade law, transport law, manufacturing law, investment law, corporate law and planning law insofar as these regulate

8 Even in Germany, a country highly regarded for its ecologically-oriented policies, laws and governance innovation, political and industry leaders seem unwilling to fully commit to meaningful decarbonization. See, https://www.zdf.de/nachrichten/heute/klimaschutzbericht-deutschland-erreicht-ziele-fuer-2020-nicht-100.html. Moreover, the International Energy Agency, in its 2018 World Energy Outlook, estimated that “[A]fter three flat years, global energy-related carbon dioxide (CO2) emissions rose by 1.6% in 2017 and the early data suggest continued growth in 2018, far from a trajectory consistent with climate goals.” See, https://webstore.iea.org/download/summary/190?fileName=English-WEO-2018-ES.pdf. 9 Fossil fuels will remain a principal energy source well into mid-century, estimated to contribute at least 75% to the global energy mix. Anthony Barnosky “Transforming the Global Energy System is Required to Avoid the Sixth Mass Extinction” 2015 MRS Energy and Sustainability 1-13 at 9.10 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92. 11 Nigel Clark and Kathryn Yusoff “Combustion and Society: A Fire-Centred History of Energy Use” 2014 31(5) Theory, Culture and Society 203-226 at 211. 12 Including for present purposes also international climate and related energy laws.

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energy aspects. But as the collection of laws predominantly responsible for governing human relations with and within the Earth system, IEL is particularly to blame.

If humans have any intention of continuing life on Earth as we know it, the complicity of IEL in the Anthropocene’s global energy dilemma must be acknowledged and addressed, possibly by rethinking IEL and its basic tenets in such a way that it could more meaningfully contribute (alongside other social regulatory institutions) to facilitate a global energy transition in the Anthropocene epoch. As a contribution to such an effort, I employ in this paper the Anthropocene as a paradigmatic contextual framework to critically interrogate the extent to which IEL has been and continues to be complicit in creating and/or reinforcing many of the paradigms that drive the unsustainable global energy metabolism.13 I will further reflect on IEL’s inability to meaningfully facilitate an urgent transition to an alternative, de-carbonised, and ultimately more sustainable and just global energy paradigm.

Taking a historical view, the discussion commences in Part 2 with a discussion of the Anthropocene’s energy dilemma and its associated socio-ecological crisis and patterns of injustice and inequality. Part 3 then interrogates the relationship between IEL and the Anthropocene’s energy dilemma, including IEL’s complicity in causing, sustaining and exacerbating this dilemma. Part 4 concludes the discussion.

2. The rise of the Anthropocene’s “fire species”

Mavhunga believes “it is easy to assume that energy has no history … our accounts of the human existence and its interactions with the biotic and abiotic environment—to say nothing of the spiritual—are still devoid of attention to energy, just as studies of energy are still either shallowly historicized or downright ahistorical.”14 The Anthropocene provides a useful framework of geological time that details the historical trajectory of human domination of the Earth system through the mastery of energy. Describing both geological history and the extent of the human footprint on the Earth system,15 in terms of this perspective, “the issue of human energy use is tied up with a certain humanization of geology”, and possibly even a “geologization of the human”.16 Central to officially designating the Anthropocene as the new geological epoch is whether it would be possible, in stratigraphic terms, to observe the human impact on the Earth system and resultant Earth system changes.17 The use of energy, including the impact on the Earth system as a result, is a critical aspect of such a designation: “[P]rimary energy use is a key indicator that relates directly to the human imprint on the

13 In doing so, I also accept that “[T]he conditions of the Anthropocene will bring a fundamental shift of the context in which international law operates—a shift in which the challenges are increasingly recognized as the consequences of natural, not only political, change.” Davor Vidas, Jan Zalasiewicz, and Mark Williams “What is the Anthropocene and why is it Relevant for International Law?” 2015 25(1) Yearbook of International Environmental Law 3-23 at 4. 14 Clapperton Chakanetsa Mavhunga “Introduction” in Clapperton Chakanetsa Mavhunga and Helmuth Trischler (eds) Energy (and) Colonialism, Energy (In)Dependence: Africa, Europe, Greenland, North America (Rachel Carson Center Perspectives, 2014/15) 7. 15 Dipesh Chakrabarty “Anthropocene Time” 2018 57(1) History and Theory 5-32 at 7.16 Nigel Clark and Kathryn Yusoff “Combustion and Society: A Fire-Centred History of Energy Use” 2014 31(5) Theory, Culture and Society 203-226 at 205. 17 Again, it needs to be stressed, however, that the Earth system changes evidenced by the imagery of the Anthropocene should not be attributed “to the agency of the human species as an undifferentiated whole”, but rather to “the operation of a specific economic system promoted by a global minority.” Alf Hornborg “Colonialism in the Anthropocene: The Political Ecology of the Money-Energy-Technology Complex” 2019 10(1) Journal of Human Rights and the Environment 7-21 at 8.

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functioning of the Earth System and is a central feature of contemporary society.”18 The Anthropocene Working Group has already identified a range of Earth system impacts and changes that are directly or indirectly related to energy use including, among others: chemical perturbations to carbon, nitrogen and phosphorus cycles; significant changes in the global climate system and sea levels; and a range of “proxy signals” including significant increases in spherical carbonaceous particles of fly ash, plastics, and artificial radionuclides, as well as changes to carbon and nitrogen isotope patterns.19 The energy-related impacts on the Earth system are also evident in terms of the nine planetary boundaries (especially the climate change boundary); some which have already been crossed and others that are fast approaching.20

The role of energy in enabling humans becoming a geological force has clearly become a pivotal leitmotif in the Anthropocene narrative. As Holley et al explain:

... humans have long been rapacious consumers of “ancient stored sunlight” ... as a source of energy to enhance our well-being. With the advent of the Industrial Revolution an acceleration commenced, driven by a contingent coupling of a fossil fuel (initially coal), the steam engine, and manufacturing of goods through machines ... What we did not realize initially, but now know, is that through our harnessing of fossil fuels, and the release of carbon into the atmosphere that this involved, we humans became, virtually overnight, very significant animals indeed.21

The historical trajectory of energy’s entanglement with the drivers of the Anthropocene is undisputed but protracted and complex, and I can only offer a crudely abbreviated summary below.

2.1. Early Anthropocene

In terms of geological time, the rise of the energy-hungry human enterprise occurred in the blink of an eye. It all started “only” a few million years ago, with influential accounts of the Anthropocene’s historical trajectory tracing the advent and expansion of human domination over the Earth system to the point when Homo erectus mastered the art of controlling and manipulating fire (also called the Early Anthropocene);22 “a crucial breakthrough that fundamentally altered our relationship with other animals on the planet.”23 Control of fire both protected humans and gave them the ability to gain access to protein-rich food sources that drastically improved their physical and mental capabilities, leading in effect to the rise of Homo sapiens (or “wise man”), and providing humans the ability to survive several ice ages

18 W Steffen et al “The Trajectory of the Anthropocene: The Great Acceleration” 2015 2(1) The Anthropocene Review 81-98 at 83. 19 J Zalasiewicz et al, ‘The Working Group on the Anthropocene: Summary of Evidence and Interim Recommendations’ 2017(19) Anthropocene 55-60 at 56. 20 These include: climate change, change in biosphere integrity, stratospheric ozone depletion, ocean acidification, biogeochemical flows, land system change, freshwater use, atmospheric aerosol loading, and introduction of novel entities. Will Steffen et al “Planetary Boundaries: Guiding Human Development on a Changing Planet” 2015 (347)6223 Science 1259855-1 – 1259855-10. 21 C Holley et al “Environmental Security and the Anthropocene: Law, Criminology, and International Relations” 2018(14) Annual Review of Law and Social Science 185-203 at 191. 22 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92 at 91. 23 W Steffen et al “The Anthropocene: Conceptual and Historical Perspectives” 2011(369) Philosophical Transactions of the Royal Society 842-867 at 846.

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and to start colonizing hitherto remote parts of the Earth.24 There is a view among evolutionary anthropologists that “both culturally and biologically – learning to handle fire is the single most important moment in becoming human.”25

In addition to being an “essential anthropological development”,26 the discovery of fire was also a crucial first step that enabled human mastery and the destructive assertion and deployment of patriarchal power held by “wise men” over an objectified non-human world, and over other “inferior” and weak humans that do not approximate the ideal vision of Anthropos’ persistent human construct (i.e., a very small and particularized privileged subset of the past and present global human population).27 In essence, this very first proverbial “playing with fire” was a point of historical inflection that initiated the many “dualisms [that] are used to create hierarchies in which more highly valued constructs (males, humans) are contrasted with lower, inferiorized ones (women, nature).”28 Thus, more than simply a mere invention that made life easier for humans, mastery of fire “is a defining trait of humanity. We have made fire a near-universal catalyst for most of our exchanges with the world around us, from technology to land use.”29

2.2. Middle Anthropocene

What followed was the Agricultural or Neolithic Revolution approximately 8000 years ago (also termed the Middle Anthropocene);30 a period in which humans started exploiting energy from wind, water, plants and animals with the aim of growing food and feeding ever-expanding populations. But it was only during the Song Dynasty in China (960-1279), that pre-industrial humans first accessed high energy-intensive coal resources; a discovery that heralded the birth of the Chinese coal industry.31 The discovery and use of coal in Asia, however, paled in comparison to what occurred in Europe some years later; notably in England, with the city of London burning approximately 360 000 tonnes of coal annually around the 1600s.32 Unlike during the Early and Middle Anthropocene, with the discovery of fossil fuels, humans were now able to fully unlock and access immense sources of concentrated energy that fuelled the human enterprise:

24 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92. There is evidence suggesting that the colonization of the south island of New Zealand 800 years ago “was marked by a rapid burst of burning and associated loss of forest cover, which failed to recover in lower-rainfall regions.” David Bowman et al “The Human Dimensions of Fire Regimes on Earth” 2011(38) Journal of Biogeography 2223-2236 at 2224. 25 Nigel Clark and Kathryn Yusoff “Combustion and Society: A Fire-Centred History of Energy Use” 2014 31(5) Theory, Culture and Society 203-226 at 208. 26 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92 at 90. 27 L Rickards, ‘Metaphor and the Anthropocene: Presenting Humans as a Geological Force’ 2015 53(3) Geographical Research 280-287 at 286. 28 S Adelman “Epistemologies of Mastery” in A Grear and L Kotzé (eds) Research Handbook on Human Rights and the Environment (Edward Elgar, 2015) 13. 29 David Bowman et al “The Human Dimensions of Fire Regimes on Earth” 2011(38) Journal of Biogeography 2223-2236 at 2224.30 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92 at 91. 31 W Steffen et al “The Anthropocene: Conceptual and Historical Perspectives” 2011(369) Philosophical Transactions of the Royal Society 842-867 at 846. 32 W Steffen et al “The Anthropocene: Conceptual and Historical Perspectives” 2011(369) Philosophical Transactions of the Royal Society 842-867 at 846.

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Fossil fuels represented a vast energy store of solar energy from the past that had accumulated from tens or hundreds of millions of years of photosynthesis. They were the perfect fuel source—energy-rich, dense, easily transportable and relatively straightforward to access. Human energy use rose sharply. In general ... industrial societies used four or five times as much energy as their agrarian predecessors, who in turn used three or four times as much as our hunting and gathering forebears.33

Relative easy access to potent and abundant fossil fuel energy resources only increased the ever-growing appetite for land, natural resources and more energy, notably among European countries that set out to colonize vast areas of foreign lands since the 15 th century. The perverse legacy of colonialism, particularly its devastation of pristine environments, annihilation of civilizations, destruction of cultures, profound practices of dispossession, enslavement of humans and nature, and its contribution to laying the foundations of the prevailing neoliberal, acquisitive and exploitative growth-without-limits paradigm, is now well-known but no less disturbing. The link between colonialism, energy and the Anthropocene is clear: “[W]ithout the trans-Atlantic flows of embodied African labour and embodied American land, and the African and American markets for British textiles, it is difficult to imagine a British Industrial Revolution.”34 And while one would have thought otherwise, exploitative practices that approximate the core predatory philosophy of colonialism continue until this day, as we shall see in Part 3.

2.3. Late Anthropocene

It is no accident, nor should it come as a surprise, that the subsequent invention of the coal-fired steam engine a few years after the discovery of coal is generally considered the starting point of the Late Anthropocene.35 In tandem with colonialism, the invention of the steam engine ultimately heralded the beginning of the Industrial Revolution; a crucial moment that inaugurated the mass exploitation, application and distribution of cheap energy the world over, with the physical impacts of the Industrial Revolution now possibly evident as a “stratigraphic signature in sediments and ice that is distinct from that of the Holocene epoch”.36 As leading commentators say: “[The Industrial Revolution’s] importance as the beginning of large-scale use by humans of a new, powerful, plentiful energy source – fossil fuels – is unquestioned. Its imprint on the Earth System is significant and clearly visible on a global scale.”37

But despite its association with the start of human “progress” and the development of “modern” societies, “[T]he old story of the Industrial Revolution as a technological triumph

33 W Steffen et al “The Anthropocene: Conceptual and Historical Perspectives” 2011(369) Philosophical Transactions of the Royal Society 842-867 at 848. 34 Alf Hornborg “Colonialism in the Anthropocene: The Political Ecology of the Money-Energy-Technology Complex” 2019 10(1) Journal of Human Rights and the Environment 7-21 at 10. See also Kent Lightfoot, Lee Panich, Tsim Schneider and Sara Gonzalez “European Colonialism and the Anthropocene: A View from the Pacific Coast of North America” 2013(4) Anthropocene 101-115 at 102.35 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92 at 91. 36 C Waters et al “The Anthropocene is Functionally and Stratigraphically Distinct from the Holocene” 2016(351) Science aad2622- 1 - aad2622-10 at aad2622-1. 37 Will Steffen et al “The Trajectory of the Anthropocene: The Great Acceleration” 2015 2(1) The Anthropocene Review 81-98 at 93.

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here meets a far less flattering narrative of far-reaching unintended environmental consequences from fossil fuel use.”38 It is more accurate, as Jonsson says, that:

The idea of the Anthropocene suggests that the Industrial Revolution constituted not a conclusive escape from material limits but a temporary reprieve bought with finite fossil fuel stock, which in turn may be undone by climate change and other environmental threats unleashed unwittingly by economic development.39

The Industrial Revolution also had an intangible cultural impact to the extent that it was instrumental in embedding into human consciousness, and exacerbating, the deeply engrained “strain of Western thought separating humanity from nature” that elevates humans as masters of the non-human world and relegates a Baconian “nature” to a mere “inanimate machine existing to serve human needs”, as Adelman says.40 In particular, this strain of Western thought also fundamentally influenced and shaped the design, orientation, ontology and objectives of “modern” law already during this period, perpetuating as it did IEL’s persistent anthropocentrism and Cartesian dualism which continue to flourish unabatedly. In turn, IEL continues to nurture anthropocentrism, the objectification and proprietization of the non-human world, and the separation between humans and non-humans, as we shall see in Part 3.

The Industrial Revolution laid the foundations for the Great Acceleration in the period following World War II.41 Initially driven by colonialism and the neoclassical economics school that prevailed in Great Britain in the 1870s, and later fully inaugurated by the nuclear age,42 the Great Acceleration continues until this day; it is the contemporary manifestation of the Anthropocene’s energy dilemma and the prevailing context within which we now need to evaluate our regulatory responses to address the energy dilemma. During the Great Acceleration all indicators of human activity sharply increased. For example: population growth exploded from 3 billion to 7.5 billion people, economic activity across the globe increased 15-fold, global trade and travel increased with rapid urbanization occurring all across the globe, and developing countries now also emerged as major contributors to greenhouse gas emissions.43 Of particular concern is that human activity has increased atmospheric CO2 “to a level not seen for at least 800,000 years, and possibly several million years, thereby delaying Earth’s next glaciation event.”44 The Great Acceleration is also associated with the intertwined rise of neoliberal globalisation, intensifying processes of neo-colonialism, and massive corporate plundering without impunity; as we shall see in Part 3.2 below. In light of the Anthropocene’s Great Acceleration, there is now little doubt that:

... a more fundamental measure of human perturbation of the climate system is the human-driven change to the planetary energy balance at Earth’s surface ... Human activities, primarily the burning of fossil hydrocarbons, have increased the radiative forcing ... with a more rapid increase since 1970 CE than during prior decades. Overwhelming the natural

38 F Jonsson “Anthropocene Blues: Abundance, Energy, Limits” 2015(2) Rachel Carson Center Perspectives 55-64 at 55. 39 F Jonsson “The Industrial Revolution in the Anthropocene” 2012 84(3) Journal of Modern History 679-696 at 680-681. 40 S Adelman “Epistemologies of Mastery” in A Grear and L Kotzé (eds) Research Handbook on Human Rights and the Environment (Edward Elgar, 2015) 11. 41 W Steffen et al “The Trajectory of the Anthropocene: The Great Acceleration” 2015 2(1) The Anthropocene Review 81-98; J McNeill and P Engelke The Great Acceleration: An Environmental History of the Anthropocene since 1945 (Harvard University Press, 2016). 42 Tim Stephens “The Antarctic Treaty System and the Anthropocene” 2018 8(1) The Polar Journal 29-43 at 30. 43 W Steffen, et al “The Anthropocene: Conceptual and Historical Perspectives” 2011(369) Philosophical Transactions of the Royal Society 842-867 at 849-860. 44 Simon Lewis and Mark Maslin “Defining the Anthropocene” 12 March 2015(519) Nature 171-180 at 172.

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changes in radiative forcing during the Late Holocene ... the anthropogenic energy imbalance is poised to amplify stratigraphic signals associated with warming and sea-level rise.45

As troubling as the biophysical impacts of all the foregoing energy-related stages of the Anthropocene have been and continue to be, they have also created and continue to lead to severe socio-economic impacts, and in particular to patterns of differentially distributed vulnerability, injustice and inequality. Although a crude oversimplification of a massively complex problem, the extent of global inequality is vividly illustrated by income disparities. The 2018 World Inequality Report, for example, estimates that “the top 1% richest individuals in the world captured twice as much growth as the bottom 50% individuals since 1980.”46 Being deeply intertwined with energy flows, the “[L]egacies and ongoing practices of Empire and globalization, racialization and privilege, and destructive land management practices, exacerbated by industrialization, capitalism, and increasing global mobility, have created circumstances in which inequalities on almost all scales are increasing.”47 The foregoing “thermodynamics of imperialism”48 arose from within and are kept alive by the enabling framework of fossil fuel infused neoclassical (and later neoliberal) economics, which in turn have been described as being “allergic to normative claims of justice and injustice.”49

Energy related vulnerabilities, inequalities and injustices embrace several specific concerns. First, inequalities in accessing safe, affordable and renewable energy and the subsequent increase of “energy poverty”50 among many vulnerable populations. To illustrate: while some have the luxury of choice between a fashionably rustic gas oven of the latest European design or a sleek technologically advanced induction smart oven that can be controlled remotely via an app, 2.7 billion people worldwide still do not have access to energy and technology for clean cooking.51 Second, there is an unequal spread of energy-related pollution activities such as coal mining and gas flaring that tend to impact poor, vulnerable people the most. 52 And third, the inequalities in the consumption of energy, explicated by the so-called “law of 1/3” in terms of which “the top 1/3 of the world population consumes 2/3 of produced energy”. 53 The latter disparity further enables this small, but powerful, subset of the global population to entrench their dominance and privilege and to address their own vulnerability at the expense of billions of marginalized people.

It thus remains the case that “[G]lobal energy systems are shaped by a political economy in which the interests of elites and powerful actors are more often than not misaligned with the

45 C Waters et al “The Anthropocene is Functionally and Stratigraphically Distinct from the Holocene” 2016(351) Science aad2622- 1 - aad2622-10 at aad2622- 7. 46 World Inequality Report, 2018 at 7. Available at https://wir2018.wid.world/files/download/wir2018-summary-english.pdf. 47 Eve Tuck and Marcia McKenzie Place in Research: Theory, Methodology, and Methods (Routledge, 2015) 3. 48 Alf Hornborg “Colonialism in the Anthropocene: The Political Ecology of the Money-Energy-Technology Complex” 2019 10(1) Journal of Human Rights and the Environment 7-21 at 17. 49 Noel Healy and John Barry “Politicizing Energy Justice and Energy System Transitions: Fossil Fuel Divestment and a ‘Just Transition’” 2017(108) Energy Policy 451-459 at 452. 50 Noel Healy and John Barry “Politicizing Energy Justice and Energy System Transitions: Fossil Fuel Divestment and a ‘Just Transition’” 2017(108) Energy Policy 451-459. 51 International Energy Agency World Energy Outlook: 2018 at 81. Available at https://webstore.iea.org/download/summary/190?fileName=English-WEO-2018-ES.pdf. 52 Benjamin Sovacool and Michael Dworkin “Energy Justice: Conceptual Insights and Practical Applications” 2015(142) Applied Energy 435-444. 53 Scott Lawrence, Qin Liu and Victor M. Yakovenko “Global Inequality in Energy Consumption from 1980 to 2010” 2013(15) Entropy 5565-5579 at 5574.

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energy needs and environmental vulnerabilities of the world’s poorest people.”54 All the foregoing vulnerabilities, injustices and inequalities that arise as a result of the Anthropocene’s energy dilemma, are perhaps nowhere more evident than in the context of climate change:

Although the chemical composition of the atmosphere is a global phenomenon, the highly skewed distribution of emissions, their meteorological consequences and the financial and technological capacity to cope with such consequences clearly establish that anthropogenic climate change is as inextricably connected with issues of global justice as the distribution of the technological infrastructure which is the source of those emissions.55

As we shall see in Part 3 below, IEL, including its highly specialised subset of global climate laws, have not (yet) been able to find any meaningful solutions to addressing vulnerabilities, injustices and inequalities.

The Anthropocene’s energy-driven crisis of hierarchy and human domination also enables us to see that its differentially distributed patterns of vulnerability, inequality and injustice do not exclusively apply to humans; these are also inter-species concerns. Ecologically destructive practices such as coal mining, oil extraction and gas flaring, flooding of huge areas to build dams and their hydroelectrical power stations, and clearing of rainforests to make way for mining and crops for biofuels, have a significant impact on landscapes and on all forms of non-human life. The rate of global species extinction as a result of such practices is estimated to be 100 to 1000 times pre-human or background extinction levels.56 Some scientists consequently argue we are facing a Sixth Mass Extinction: “[T]he evidence is incontrovertible that recent extinction rates are unprecedented in human history and highly unusual in Earth’s history … our global society has started to destroy species of other organisms at an accelerating rate, initiating a mass extinction episode unparalleled for 65 million years.”57 As with all previous five mass extinctions, the impending Sixth Mass Extinction has been directly linked with “climate disruptions to at least some degree, including major changes to the carbon cycle with attendant modifications of the oceans and atmosphere”.58 Yet, as troubling as such a realization is, viewing the impact of human energy practices on the non-human world as only a matter of species extinction is an oversimplification of the issue at hand. It is essential to appreciate that the human impact on the non-human world is also a matter of interspecies injustice when viewed in the context of what Grear calls, the “symbiotic generativity of life”: “[I]n a symbiotic view, the ‘all’ of the ‘we’ is profoundly interspecies—(or intra-species if we count ‘earthlings’ in an all embracing way)—a lively entanglement of beings and systems that are never individual in the traditional Western sense.”59 While their persistence suggestively points to the failures of IEL in addressing human vulnerabilities, injustices and inequalities, such persistence also reflects on

54 Noel Healy and John Barry “Politicizing Energy Justice and Energy System Transitions: Fossil Fuel Divestment and a ‘Just Transition’” 2017(108) Energy Policy 451-459 at 452. 55 Alf Hornborg “Colonialism in the Anthropocene: The Political Ecology of the Money-Energy-Technology Complex” 2019 10(1) Journal of Human Rights and the Environment 7-21 at 17-18. 56 Jurriaan de Vos, Lucan Joppa, John Gittleman, Patrick Stephens and Stuart Pimm “Estimating the Normal Background Rate of Species Extinction” 2014 29(2) Conservation Biology 452-462. 57 Gerardo Ceballos et al “Accelerated Modern Human–induced Species Losses: Entering the Sixth Mass Extinction” 2015 1(5) Science Advances 1-5 at 4. 58 Anthony Barnosky “Transforming the Global Energy System is Required to Avoid the Sixth Mass Extinction” 2015 MRS Energy and Sustainability 1-13 at 2. 59 Anna Grear “‘Anthropocene, Capitalocene, Chthulucene’: Re-encountering Environmental Law and its ‘Subject’ with Haraway and New Materialism” in Louis Kotzé (ed) Environmental Law and Governance for the Anthropocene (Hart, 2017) 91.

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the failure of law generally, and IEL specifically, to recognise and protectively embrace the justice related and other concerns of the non-human world.

In a spatial sense, the global dimensions of energy justice have only more recently come to the fore alongside the rise of the North-South Divide narrative. To this end concerns include several urgent, but unresolved, issues such as: the land-grabbing phenomenon; the North’s disproportionately significant historical responsibility for causing climate change and for mitigating its ongoing effects (evidenced by the emergence of the principle of common but differentiated responsibilities and respective capabilities); the inability of the Global South to innovatively respond to a changing climate and to increase resilience; exclusion of the Global South in processes of global decarbonization; the continued reliance on the Global South to offset Northern carbon emissions; and the fact that having abundant energy resources does not necessarily mean countries are better off (as suggested by several energy resource rich countries in the Global South such as Venezuela and Angola that remain poor in comparison to some of their energy resource poor Northern counterparts).

3. Exposing the complicity of international environmental law

The discussion in the foregoing part illustrated how central carbon rich energy has been in enabling humans to become a geological force of nature. It was argued that the human quest to satisfy its insatiable hunger for energy has dislodged Earth system stability and integrity, while causing unprecedented vulnerabilities, injustices and inequalities. The discussion below focuses on some of the normative questions that arise as a result, and specifically on the structural complicity of IEL in this dilemma. In essence, such an enquiry reflects on the notion of “Anthropocene Society”, which encapsulates the many “spillovers from the biophysical to the social spheres (and vice versa)” within the context of the Anthropocene, including the “human systems (social, economic, political, religious, etc.) that are a past cause, present consequence, and future adaptation of our ecosystem changes”.60

IEL is a critical element of the human system, and an important part of those social regulatory institutions that humans consciously design to establish and maintain a specific type of desired socio-ecological order;61 an order that is itself not always just, fair and/or protective of all Earth system constituents, as we have seen. My hypothesis is that IEL cannot convincingly ignore or deny its entanglement with the rise of Anthropos, its mastery of energy, and the unjust socio-ecological order that results therefrom. IEL has been and continues to be complicit in causing, sustaining and exacerbating the Anthropocene’s energy dilemma, if not always explicitly, then certainly in subtle, but no less effective and disturbing ways; notably through its promotion of those paradigms that drive the Anthropocene’s unsustainable energy metabolism. While there may be several others, I focus on five aspects that I believe are particularly problematic: IEL’s neoliberal anthropocentrism; IEL’s entanglement with (neo)colonialism; IEL’s entrenchment of state sovereignty and the sovereign right to exploit energy resources; IEL’s lack of an Earth system approach; and IEL’s normatively unambitious contribution to renewable, sustainable energy transformations.

60 Andrew Hoffman and P. Devereaux Jennings Re-engaging with Sustainability in the Anthropocene Era (Cambridge University Press, 2018) 5. 61 Louis Kotzé Global Environmental Governance: Law and Regulation for the 21st Century (Edward Elgar, Cheltenham, 2012); Louis Kotzé “Rethinking Global Environmental Law and Governance in the Anthropocene” 2014(32) Journal of Energy and Natural Resources Law 121-156.

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3.1. IEL’s neoliberal anthropocentrism

The Anthropocene’s energy dilemma arose, in part, because of the prevailing anthropocentric worldview that permeates virtually all human systems and that places humans at the center of Earthly existence. As was shown above, privileged humans harvest energy for our exclusive benefit at the cost of many other humans and the non-human world. The Anthropocene’s imagery of its (highly selective) anthropocentric exceptionalism, speciesism, human prominence and privilege have been deliberately constructed, and continue to be maintained, through the human system of law. Law is after all a human artefact; invented, designed and shaped with the objective to promote some humans’ interests. Law is therefore by default anthropocentric, shutting out as it does meaningful care for and protection of the non-human world, unless such protection is beneficial to human; while the fundamental design of law remains overwhelmingly predisposed to ecological destruction.62 Indeed, “when it comes to law’s relationship with (and mediation of) the lifeworld of the planet and its non-human denizens, it is intensely problematic that the human subject stands at the centre of the juridical order as its only true agent and beneficiary.”63 The anthropocentrism of law is perhaps nowhere clearer than from within the provisions of IEL.64 It is the ethically deficient anthropocentrism of IEL that is a root cause of both the Anthropocene’s socio-ecological crisis and of its energy dilemma, and one of the reasons for IEL’s inability to effectively address these. To be sure, IEL’s prevailing anthropocentric ethic “has directly contributed to the environmental crisis. Because our laws reflect and affirm this environmental ethic they have become part of the problem – international environmental law merely perpetuates the crisis and is reduced to a means of suppressing the symptoms.”65

The foundations of IEL’s anthropocentric ethic were already laid in the late 1800s and early 1900s with the adoption of the earliest IEL agreements that states created, such as the London Convention for the Protection of Wild Animals, Birds and Fish in Africa of 1900 (London Convention), and the Fur Seals Convention of 1911. These early environmental “conservation” instruments pursued a narrow focus of interest; their “dominant strain was utilitarian and anthropocentric”,66 “their benefit, if any, for the environment was hardly more than a side effect.”67 Moreover, these agreements were adopted to regulate the equitable and fair distribution and use of environmental “resources” among a small number of powerful European states. Monetizing and relegating the non-human world to mere instrumental value for the benefit of some humans,68 environmental protection for the sake of it was not their principal objective. The anthropocentrism of IEL, especially in this early guise, was highly 62 Stephen Turner A Global Environmental Right (Routledge, 2013) 32. 63 Anna Grear “Deconstructing Anthropos: A Critical Legal Reflection on ‘Anthropocentric’ Law and Anthropocene ‘Humanity’” 2015(26) Law Critique 225-249 at 225. 64 Alexander Gillespie International Environmental Law, Policy, and Ethics 2nd ed (Oxford University Press, 2014); and more recently, Louis Kotzé and Duncan French “The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene” 2018(7) Global Journal of Comparative Law 5-36. 65 Prue Taylor An Ecological Approach to International Law: Responding to Challenges of Climate Change (Routledge, 1998) 3. 66 Daniel Bodansky The Art and Craft of International Environmental Law (Harvard University Press, 2010) 24. 67 Ulrich Beyerlin and Thilo Marauhn International Environmental Law (Hart, 2011) 3. 68 Although it laudably sought to protect and preserve fur seals by prohibiting pelagic sealing, the true motives behind the 1911 Fur Seals Convention were essentially the protection of financial and proprietary interests that certain states had in fur seals as natural resources. See, for example, its article XI which contains elaborate provisions for compensation among states where some do not benefit from pelagic sealing as a result of the Convention’s prohibitions.

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effective in “othering” an externalized “nature” that is cherished only for its instrumental value to secure human survival. Through its anthropocentrism, IEL “others” by not challenging an objectification of the environment and the many Cartesian-like dualisms that IEL embraces. IEL instead creates a range of “interrelated, virtually sacred binaries”,69 including:

… man/nature, person/property, public/private, rational/irrational, and reasonable/unreasonable—and we could add man/animal, man/woman, culture/nature, white/nonwhite, property owning/nomadic, and so on. At one side of these binaries, there is always a privileged referent: the central-case juridical human being and/or its assumed properties/characteristics.70

These binaries and “othering” tendencies are glaringly evident from the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration). In many ways the historical foundation that would be pivotal in shaping IEL and its anthropocentric ontology,71 already in its name, the Declaration proclaims the centrality of the human. According to the preamble, man is a separate, but elevated, entity from his submissive environment that he creates and controls, that belongs to him, and that must sustain him:

Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth … Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights [including] the right to life itself.72

Not only does the foregoing provisions of the Stockholm Declaration affirm (hu)man mastery over an environment that the dominant male human creates and moulds, it also places the environment in the service of the (hu)man, subjecting it to a mere support system exclusively in the service of the ontologically disembodied, consumptive, politically dominant, property-owning, “Northern”, “white”, “male” human subject.73 Emphatically not the indigenous African nomad foraging for food to sustain her family; this disembodied autonomous subject of IEL “is most unlike the core victims of climate injustice – women, children and other marginalized human groups, non-human animals and living ecosystems.”74 To this end, IEL’s anthropocentrism effectively promotes the interests of a specific group of people through its selectivity, while it effectively manages to “other” a host of marginalized, often vulnerable, human beings.75 The Declaration continues: “[T]he protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic

69 Anna Grear “Human Rights and New Horizons? Thoughts Toward a New Juridical Ontology” 2018 43(1) Science, Technology, and Human Values 129-145 at 131. 70 Anna Grear “Human Rights and New Horizons? Thoughts toward a New Juridical Ontology” 2018 43(1) Science, Technology, and Human Values 129-145 at 131. 71 Pierre-Marie Dupoy and Jorge Viñuales International Environmental Law 2nd ed (Cambridge University Press, 2018) 9. Also described as “perhaps the single most significant event in the history of international environmental law.” Karin Mickelson “South, North, International Environmental Law, and International Environmental Lawyers” 2000(11) Yearbook of International Environmental Law 52-81 at 62. 72 Preamble. 73 Louis Kotzé “The Anthropocene, Earth System Vulnerability and Socio-ecological Injustice in an Age of Human Rights” 2019 10(1) Journal of Human Rights and the Environment 62-85. 74 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 117. 75 The South African apartheid nature conservation laws that relocated people and established nature conservation areas for the enjoyment of a small white minority, is one of many examples.

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development throughout the world”;76 it is not an issue which affects ecological integrity or environmental protection for the sake of it. It is rather the case, as the Stockholm Declaration says, that “[O[f all things in the world, people are the most precious.”77 The interests of some precious people, their well-being and economic development have subsequently been at the core of IEL’s foundations.

Although more recent nature conservation treaties such as the Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat of 1971, and the Convention on Biological Diversity of 1992 (CBD) have not pursued utilitarianism, instrumentalism and monetization in the explicit way their forebears have, none of these can be characterized as being overtly ecocentric or focused on protecting Earth system integrity in any comprehensive or meaningful way.78 The same can be said of pollution and other resource-related multilateral environmental agreements (MEAs) that emerged post-1972.79 The closest the world came to adopting an agreement that could have provided an ecocentric blueprint for the subsequent development of IEL was the United Nations General Assembly’s (UNGA) almost universal endorsement of the World Charter for Nature in 1982;80 an “avowedly ecological instrument, which emphasises the protection of nature as an end in itself.”81 But curiously, the Charter has slipped off the radar of states’ concern. Beyond its initial proclamation, it has not featured prominently in or exerted any significant norm-shaping influence on the development of IEL.

Instead, all subsequent global environmental conferences pointedly retreated from the deep ecological principles of the Charter,82 and states continued down the neoliberal “environment versus development” path, first at the United Nations Conference on Environment and Development in 1992; and 10 years later at the World Summit on Sustainable Development. With the blanket endorsement of the haloed, but deeply deceiving, idea of sustainable development, these conferences, many MEAs, and grand development visions such as Our Common Future of 1987, the Millennium Development Goals, and the Sustainable Development Goals (SDGs), laudable as these initiatives may be, have only managed to further promote IEL’s exploitative, neoliberal, development-biased anthropocentrism.83 This is problematic because sustainable development has become the dominant “framing of nature in global environmental governance”; it promotes human self-interest while there is a self-defeating assumption that “the increased use of these discourses of self-interest can promote better ways of living well with other species as well as ourselves.”84 A “deceptively simple idea that is widely incorporated in domestic and international environmental law”, as 76 Preamble. 77 Preamble. 78 See, for example, Rakhyun Kim and Klaus Bosselmann “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” 2013 2(2) Transnational Environmental Law 285-309. 79 Ulrich Beyerlin and Thilo Marauhn International Environmental Law (Hart, 2011) 11. 80 UNGA Resolution A/RES/37/7, of 28 October 1982, on World Charter for Nature. Available at: http://www.un.org/documents/ga/res/37/a37r007.htm. See, for a detailed discussion Louis Kotzé “A Global Environmental Constitution for the Anthropocene?” 2019 8(1) Transnational Environmental Law 11-33. 81 Philippe Sands and Jaqueline Peel Principles of International Environmental Law 3rd ed (Cambridge University Press, 2012) 37. 82 B. Devall, ‘The Deep, Long-Range Ecology Movement: 1960-2000 - A Review’ (2001) 6(1) Ethics and the Environment, pp. 18-41, at 30. 83 Sam Adelman “The Sustainable Development Goals, Anthropocentrism and Neoliberalism” in Duncan French and Louis Kotzé (eds) Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar, 2018) 15-40. 84 Rafi Youatt “Interspecies Relations, International Relations: Rethinking Anthropocentric Politics” 2014 43(1) Millennium: Journal of International Studies 207-223 at 211.

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Adelman says, sustainable development is not an environmentally friendly process.85 It is instead a convenient but fictitious ideological palliative that IEL underwrites and that legitimizes and helps humans rationalize anthropocentric Earth system altering practices.86 And more worryingly, sustainable development is now so ubiquitous in IEL that, alongside its neoliberal ontology, sustainable development “has become ingrained as the rationale for social and economic policies and, as such, is rarely challenged, but accepted as necessary and inevitable”.87

Turning to IEL’s energy provisions specifically, despite convincing evidence suggesting the complicity of fossil fuel use in dislodging Earth system integrity and stability, and the urgent need for decisive political, legal and practical action in this respect, there is still no overarching energy treaty that comprehensively regulates pollution resulting from fossil fuels; innovative ways to adapt to fossil fuel scarcity; obligations to transition to a renewable energy paradigm; and the promotion of global energy justice, among other concerns.88 The closest any agreement comes to such an instrument is the Energy Charter Treaty of 1994 (ECT),89 which is based on the European Energy Charter of 1991 and that aims to create a global legal framework “to promote long-term cooperation in the energy field, based on complementarities and mutual benefits.”90 Fully reflecting and seeking to advance global corporate interests, the ECT is problematically focused on promoting the World Bank and World Trade Organization’s neoliberal model of free trade in energy, to promote energy investments, to promote the transboundary transit/movement of energy, and far less so, to regulate environmental concerns.91 Corporations were instrumental in shaping the constitutions and rules of these institutions with a view to formalizing global corporate power;92 and it remains the case that: “[T]he World Bank and other institutions, far from disseminating recipes for development that will benefit all sectors of society, are constructing a legitimizing ideology that conceals the contradictions of capitalism as a global system, translates its structural requisites into a universal programme, and re-presents it as a remedy for the very human ills it generates.”93 Tucked away towards the end of the Treaty under “Miscellaneous Provisions”,94 article 19 says state parties merely have to have “particular regard” to improving energy efficiency,95 and “[I]n pursuit of sustainable development”, 85 Sam Adelman “The Sustainable Development Goals, Anthropocentrism and Neoliberalism” in Duncan French and Louis Kotzé (eds) Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar, 2018) 15-40 at 21. 86 Benjamin Richardson “A Damp Squib: Environmental Law from a Human Evolutionary Perspective” Osgoode Hall Law School Comparative Research in Law and Political Economy Paper Series 2011 7(3) 1 at 31. 87 David Hursh and Joseph Henderson “Contesting Global Neoliberalism and Creating Alternative Futures” 2011 32(2) Discourse: Studies in the Cultural Politics of Education 171-185 at 178. 88 It is arguably more correct to say that the bulk of developments in this respect is happening at the regional (European) level. See, Rafael Leal-Areas and Jan Wouters (eds) Research Handbook on EU Energy Law and Policy (Edward Elgar, 2017). 89 Silke Goldberg and Krishna Kakkaiyadi “Energy Charter Treaty: An Overview” in Malgosia Fitzmaurice, Attila Tanzi and Angeliki Papantoniou (eds) Multilateral Environmental Treaties (Edward Elgar, 2017) 439-455. 90 ECT, article 2. 91 Energy Charter Secretariat The Energy Charter Treaty and Related Documents: A Legal Framework for International Energy Cooperation (2004) at 14. Available at http://www.ena.lt/pdfai/Treaty.pdf . 92 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 119-120. 93 Paul Cammack “Neoliberalism, the World Bank, and the New Politics of Development” in Uma Kothari and Martin Minogue (eds) Development Theory and Practice: Critical Perspectives (Palgrave, 2002) 160. 94 Part IV. 95 Article 19(1)(d).

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“each Contracting Party shall strive to minimize in an economically efficient manner harmful Environmental Impacts [sic] occurring either within or outside its Area [sic] from all operations … [by acting] in a Cost-Effective [sic] manner.”96

Also very little of the United Nations Framework Convention on Climate Change of 1992 (UNFCCC) and its Kyoto Protocol of 1997 attempts to create any meaningful legally binding provisions that force states to dramatically halt the reliance on fossil fuels and their concomitant pursuit of neoliberal economic development, and to rethink the prevailing unsustainable energy metabolism in dramatically different ways that are not purely anthropocentric. Instead, these agreements also take their cue from sustainable development to the extent that “responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter.”97 Greenhouse gas concentrations must be stabilised, but in a time frame sufficient to “enable economic development to proceed in a sustainable manner.”98 A central guiding principle of the UNFCCC says, without even attempting to window dress, that:

The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.99

While the Paris Climate Agreement of 2015 does recognize “the importance of ensuring the integrity of all ecosystems”,100 it also seeks to do so “in the context of sustainable development”.101 In sum, current legal efforts to restore climate integrity as a result of thousands of years of carbon rich energy abuse remain predominantly premised on, subject to, and guided by neoliberal, corporatized human-focused economic development, and not by ecological concerns.

3.2. IEL, (neo)colonialism and the North-South divide

The intimate link between the Anthropocene, its energy dilemma and colonialism, including the many injustices, inequalities and vulnerabilities arising from this nexus, have briefly been sketched in Part 2. Some of the earliest instruments of IEL were created at the height of colonialism and IEL is implicated in facilitating this nexus. The IEL-making process at the time was dominated by colonial state powers (which fully represented the interests of their equally powerful colonial corporations that were often vested with sovereign rights),102 with the bulk of these early agreements showing “clear traces of the close interrelation between natural conservationism and colonialism; [while] almost none of these treaties refer to the

96 Article 19(1). Own emphasis. The accompanying Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects of 1994 is equally driven by the benefit of “significant economic and environmental gains, which result from the implementation of cost-effective energy efficiency measures”; including “their importance for restructuring economies and improving living standards”. Preamble.97 Preamble. Own emphasis. 98 Article 2. Own emphasis. 99 Article 3(4). Own emphasis. 100 Preamble. 101 Article 2(1). 102 Janet McLean “The Transnational Corporation in History: Lessons for Today?” 2004(79) Indiana Law Journal 363-377.

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economic and social needs of underdeveloped countries and their societies.”103 One example is the London Convention already mentioned above, by means of which colonial powers aimed to stake proprietary claim over environmental resources in their colonies and to insure “the preservation throughout their possessions in Africa of the various forms of animal life existing in a wild state which are either useful to man or are harmless.”104 This convention sought to conserve some useful species that were in high demand by colonial powers, but to eradicate those, such as lions, crocodiles, hyenas and poisonous snakes, that were deemed “harmful animals … of which it is desirable to reduce the numbers within sufficient limits.”105 Human domination over nature by means of predatory colonial practices was thus already asserted in this earliest version of IEL.

Another example is the International Convention for the Regulation of Whaling of 1931, which contained “rudimentary regulation on the preservation of the whale population obviously for the sole purpose of enhanced utilisation of this resource;”106 including specifically the oil from whale carcasses. The Convention was clear that “[T]he fullest possible use shall be made of the carcasses of whales taken [including] by boiling or otherwise the oil from all blubber and from the head and the tongue and, in addition, from the tail as far forward as the outer opening of the lower intestine.”107 The contracting parties graciously excluded “aborigines dwelling on the coasts of the territories of the High Contracting Parties” from the prohibitions on whaling, provided, among others, they hunt whales by “only use[ing] canoes, pirogues or other exclusively native craft; and they “do not carry firearms”.108 (The contracting parties, on the other hand, were obviously allowed to use the latest available technology for whale hunting, and to carry fire arms). The conservation objective of conventions such as these was particularly ironic, as Hey notes, considering that Northern demand gave rise to the need for conservation in the South, while draconian regulations were imposed on the local populations preventing or limiting ancient practices of resource use on land that in fact belonged to them.109

As with fauna and flora, the exploitation of energy resources ran rampant in the colonial era, and IEL did little to prohibit or regulate these exploitative practices. It instead contributed in subtle and indirect ways to supporting energy-related colonial practices. First, IEL played a supporting role in appropriating the attendant human and environmental resources that undergirded global energy metabolism. By disguising resource allocation and utilization as “conservation”, colonial powers ensured uninterrupted supply and access to a range of environmental resources that were critically important for sustaining their energy-related activities back home. After all, “[A]t their core, all colonial projects derive from the imperative to transform the potential energy stored in colonized (or colonizable) subjects into mechanical energy for the production of wealth”.110 IEL, as with international economic law at the time, was instrumental in transforming potential “colonial energy”.

103 Ulrich Beyerlin and Thilo Marauhn International Environmental Law (Hart, 2011) 6. 104 Preamble. 105 Schedule V. 106 Ulrich Beyerlin and Thilo Marauhn International Environmental Law (Hart, 2011) 4. 107 Article 6. 108 Article 3. 109 Ellen Hey Advanced Introduction to International Environmental Law (Edward Elgar, 2016) 9. See also, Karin Mickelson “South, North, International Environmental Law, and International Environmental Lawyers” 2000(11) Yearbook of International Environmental Law 52-81. 110 Clapperton Chakanetsa Mavhunga “Introduction” in Clapperton Chakanetsa Mavhunga and Helmuth Trischler (eds) Energy (and) Colonialism, Energy (In)Dependence: Africa, Europe, Greenland, North America (Rachel Carson Center Perspectives, 2014/15) 5.

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Second, at a more abstract level, scholars show through the lens of Third World Approaches to International Law (TWAIL), how modern IEL embraces the foundations that were laid down by colonial laws and that promoted appropriation of foreign lands and people, the global slave trade, and resource extraction, among others.111 These include the domination of nature; industrialization; the division between civilized and uncivilized nations (and later First and Third World nations) where indigenous societies living in harmony with nature were “pronounced ‘uncivilised’ and in need of ‘modernization’ and ‘development’”;112 and deeply embedding and universalizing rationalist Northern/European notions objectifying and monetizing the non-human world, while “[I]ndigenous ontologies and epistemologies were excised by a hegemonic epistemology of mastery”.113 IEL continues to perpetuate these colonial ideological legacies through its cornerstone principle of sustainable development, which is seen to have “become a site for mutual suspicion between the global North and South. The latter sees sustainable development as a justification for imposing unfair burdens on its development aspirations, as well as a strategy of protectionism by the global North to ward of competition from the global South.”114 Rajagopal says in even starker terms that sustainable development now provides “a new, more intrusive set of reasons for managing the ‘dark, poor and hungry masses’ of the Third World.”115

Third, the present neoliberal global economic order is still based on deep North-South divisions and attendant disparities, inequalities, injustices and vulnerabilities that were already created in colonial times, with IEL only making half-hearted attempts at best, and at worst doing nothing, to address this divide. For example, while human rights have been used to address many global justice concerns arising from colonization, IEL has consistently resisted providing a global right to a healthy environment; a provision (although itself not unproblematic and subject to critique)116 that could have gone some way in confronting the Anthropocene’s many injustices; especially to the extent that human rights “counteract the fundamental power imbalances that lead to injustice”, and to the extent that human rights “correct for the ways that power can distort law,”117 and offer legal protection of the vulnerable. Despite the almost universal domestic emergence of environmental human rights the world over,118 (and in some countries even the rights of nature),119 and apart from the Stockholm Declaration’s implicit hint at the existence of such a right,120 no other IEL

111 See for a detailed discussion, Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015). 112 Carmen Gonzalez “Bridging the North-South Divide: International Environmental Law in the Anthropocene” 2015(32) Pace Environmental Law Review 407-434 at 411. 113 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 113. 114 Chidi Oguamanam “Sustainable Development in the Era of Bioenergy and Agricultural Land Grab” in Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015) 247. 115 B Rajagopal International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003) 117. 116 Louis Kotzé “The Anthropocene, Earth System Vulnerability and Socio-ecological Injustice in an Age of Human Rights” 2019 10(1) Journal of Human Rights and the Environment 62-85.117 Rebecca Bratspies “Claimed not Granted Finding a Human Right to a Healthy Environment” 2017 26(2) Transnational Law and Contemporary Problems 263-279 at 267. 118 James May and Erin Daly Global Environmental Constitutionalism (Cambridge University Press, 2014). 119 Louis Kotzé and Paola Villavicencio Calzadilla “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador” 2017 6(3) Transnational Environmental Law 401-433; Paola Villavicencio Calzadilla and Louis Kotzé “Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia” 2018 7(3) Transnational Environmental Law 397-424. 120 Principle 1.

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instrument, hard or soft, currently provides for a right to a healthy environment. This, despite high-level calls for its adoption in a global instrument.121 The global climate law regime’s reluctance to address the many North-South and in-country injustices arising from climate change, is another case in point. As Gonzalez says: “the North has only grudgingly accepted the principle of common, but differentiated, responsibility on the basis of its superior technical and financial resources while disavowing responsibility on the basis of its historic contributions to these crises.”122 And it remains far from clear whether this principle, alongside the principles of inter- and intra-generational equity, has been effective in achieving any meaningful measure of distributive justice whatsoever.

While the many legacies of colonialism remain evident despite the end of colonial rule, there is a worrying rise in neo-colonialism the world over. Land-grabbing (also characterised as the “foreignisation of space”)123 by governments, and perhaps more notoriously by private corporate actors, is an example of neo-colonialism in the quest for, among others, the expansion of agro-investment and what is described as food and energy security through the production of palm oil and biofuels.124 Although these practices are often cunningly veiled by characterising them in terms that have been developed in the course of IEL’s global climate change negotiations as “energy security”, “decarbonization”, “green economy” and “low-carbon development”,125 they are more accurately described as “modern euphemism[s] for imperialism”.126 The corporate neo-colonial exploitation and oppression of the global South’s non-dominant humans, its non-human world and its “’surplus’, ‘degraded’, ‘idle’, ‘waste’, ‘abandoned’, ‘underutilized’”127 lands, is instead real, more pervasive and far grimmer than what we are often led to believe:

…the vectors of oppression linking intra-and inter-species hierarchies are particularly pronounced in industrial corporate capitalism, which has become a globally hegemonic system in which such patterns are increasingly extreme: neoliberal capitalist globalisation is a highly uneven process still exhibiting pathological patterns of domination.128

Grear, a staunch critic of the corporate legal form and corporate capitalism says: “[I]t is not going too far, indeed, to claim that corporations dominate the entire global order: this fact is being widely accepted by theorists of globalization as the defining phenomenon of the global age.”129 Major missed opportunities for IEL (along with trade, investment, human rights and 121 UN Human Rights Council Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment (24 January 2018) (A/HRC/37/59). Par 46. 122 Carmen Gonzalez “Bridging the North-South Divide: International Environmental Law in the Anthropocene” 2015(32) Pace Environmental Law Review 407-434 at 409. 123 Annelies Zoomers “Globalisation and the Foreignisation of Space: Seven Processes Driving the Current Global Land Grab” 2010 37(2) The Journal of Peasant Studies 429-447. 124 Arnim Scheidel and Alevgul Sorman “Energy Transitions and the Global Land Rush: Ultimate Drivers and Persistent Consequences” 2012(22) Global Environmental Change 588-595. 125 Chidi Oguamanam “Sustainable Development in the Era of Bioenergy and Agricultural Land Grab” in Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015) 239. 126 Alf Hornborg “Colonialism in the Anthropocene: The Political Ecology of the Money-Energy-Technology Complex” 2019 10(1) Journal of Human Rights and the Environment 7-21 at 12. 127 Chidi Oguamanam “Sustainable Development in the Era of Bioenergy and Agricultural Land Grab” in Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015) 240. 128 Anna Grear “Deconstructing Anthropos: A Critical Legal Reflection on ‘Anthropocentric’ Law and Anthropocene ‘Humanity’” 2015(26) Law Critique 225-249 at 233. 129 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human

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intellectual property law) are consequently its continued commitment to voluntarism when it comes to corporate responsibility; its failure to reign in neoliberal corporate capitalist globalization; more particularly its resistance in creating stringent standards to regulate the many energy activities of (especially transnational) corporations; and its structural promotion of corporations as “private sector quasi-states”.130 IEL has failed in this respect because states deliberately want it to fail: the corporation after all is the state’s most agile, lucrative, profitable and influential agent of “sustainable” development, as it were. As long as cheap fossil fuels are available to exploit, and as long as corporations prop up state coffers in doing so, there are few incentives for governments to force corporations to restrict their activities or to shift their focus to renewable resources instead. Unsurprisingly then, to date no MEA exists to regulate the environmental harmful activities of corporations. In 2004, the United Nations Commission on Human Rights also rejected the Draft Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights. Only in 2008 did states half-heartedly endorse Ruggie’s non-binding Protect, Respect and Remedy: a Framework for Business and Human Rights;131 a symbolically important, but practically deficient instrument that has not been able to effectively challenge corporate impunity for human rights and other violations; an impunity which instead remains firmly entrenched in the structure of international (environmental) law.132

3.3. IEL, state sovereignty and the right to exploit energy resources

I would suggest that the revered right to do what one wants with and to one’s property, is perhaps the clearest (deceptively simple but ultimately pernicious) example of how humans use the law to legitimize, enable and support human mastery of the Earth system’s energy. Fully reflecting the central tenets of anthropocentrism, the right to property “presupposes unlimited or absolute control over property and that view is treated as sacrosanct”.133 The consequences for Earth system integrity of such an unfettered right, and the attendant entitlements it legally bestows upon Anthropos, are far-reaching and already evident through the lens of the Anthropocene. There is a view that property rights and its concepts must urgently change “so that they cease to empower harmful activities and instead foster sustainable human-nature interaction.”134

Law’s socio-ecologically destructive right to property manifests in the international law and politics domain as the principle of state sovereignty, which arose consequent on the adoption of the Treaty of Westphalia in 1648. Fully Eurocentric in its orientation, this treaty laid the

Rights and the Environment 103-133 at 107. Emphasis in the original. 130 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 108. Emphasis in the original. 131 See, the report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, titled, Protect, Respect and Remedy: a Framework for Business and Human Rights of 2008. Available at https://www.business-humanrights.org/sites/default/files/reports-and-materials/Ruggie-report-7-Apr-2008.pdf. 132 Penelope Simons, ‘Selectivity in Law-making: Regulating Extraterritorial Environmental Harm and Human Rights Violations by Transnational Extractive Corporations’ in A Grear and L Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar, Cheltenham, 2015) 477. 133 Joan McGregor “Property Rights and Environmental Protection: Is this Land Made for You and Me?” 1999(31) Arizona State Law Journal 391-437. 134 Prue Taylor and David Grinlinton “Property Rights and Sustainability: Toward a New Vision of Property” in David Grinlinton and Prue Taylor (eds) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 5.

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foundations for the present state-centric global order in which “the intellectual basis of international law drifted apart from natural law and morality towards positivism and national self-interest.”135 Concisely understood as “supreme legitimate authority within a territory”,136 state sovereignty has since become an inextricable part of international law’s canon and its trite “colonial international law doctrines”.137

Over the years, state sovereignty has also infiltrated the IEL domain;138 unsurprisingly on the back of proprietary, economic and developmental considerations. For example, the colonial era London Convention Relative to the Preservation of Fauna and Flora in their Natural State of 1933 provided that animal trophies were “the property of the [colonial power] Government of the territory concerned”.139 The subsequent development of the principle of permanent sovereignty over natural resources occurred through several UNGA resolutions during the 1950s which sought to address a major concern of the developing world at the time, namely, the “need to balance the rights of the sovereign state over its resources with the desire of foreign companies to ensure legal certainty in the stability of investments.”140 Energy was central to these concerns, especially insofar as foreign oil companies controlled much of the exploration and production of petroleum products in colonial and post-colonial states.141 To this end, the resolutions endeavored to respond to the developing world’s call for a New International Economic Order by focusing on: “integrated economic development and commercial agreements”;142 the “right to exploit freely natural wealth and resources”;143 “international respect for the right of peoples and nations to self-determination”;144 and “concerted action for economic development of economically less developed countries”.145 This all culminated in the adoption of a landmark UNGA resolution in 1962 recognizing that the “rights of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development of the well-being of the people of the state concerned”; and that “the creation and strengthening of the inalienable sovereignty of States over their natural wealth and resources reinforces their economic independence.”146

State sovereignty later found expression in principle 21 of the Stockholm Declaration in a more nuanced guise:

135 M. Rafiqul Islam “History of the North-South Divide in International Law: Colonial Discourses, Sovereignty, and Self-determination” in Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015) 26. 136 Daniel Philpott “Sovereignty: An Introduction and Brief History” 1995 48(2) Journal of International Affairs 353-368 at 357. 137 M. Rafiqul Islam “History of the North-South Divide in International Law: Colonial Discourses, Sovereignty, and Self-determination” in Shawkat Allam, Sumudu Atapattu, Carmen Gonzalez and Jona Razzaque (eds) International Environmental Law and the Global South (Cambridge University Press, 2015) 25. Article 2(1) of the Charter of the United Nations of 1945 now recognizes the “sovereign equality of all [United Nations] Members”. 138 See, among others, Judson Agius “International Environmental Law and State Sovereignty” 1998(3) Asia Pacific Journal of Environmental Law 269-283. 139 Article 9(6). 140 Philippe Sands and Jaqueline Peel Principles of International Environmental Law 3rd ed (Cambridge University Press, 2012) 202. 141 Kim Talus “Internationalization of Energy Law” in Kim Talus (ed) Research Handbook on International Energy Law (Edward Elgar, 2014) 6. 142 UNGA Res. 523 (VI) (1950).143 UNGA Res. 626 (VII) (1952).144 UNGA Res. 837 (IX) (1954). 145 UNGA Res. 1515 (XV) (1960).146 UNGA Res. 1803 (XVII) (1962). Own emphasis.

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States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.147

This principle has been reiterated virtually verbatim in the Rio Declaration on Environment and Development,148 and it is provided in MEAs such as the CBD.149 IEL’s energy-related agreements similarly recognize the principle of state sovereignty. The UNFCCC, for example, explicitly connects it with climate change in reaffirming “the principle of sovereignty of States in international cooperation to address climate change.”150 Yet, while the Paris Agreement does not include any reference to state sovereignty, it acknowledges, as does the UNFCCC, that climate change is a “common concern of human kind”.151 Such language, in tandem with the provisios that state sovereignty is subject to the customary international law rule of good neighbourliness and that states have the responsibility not to cause environmental harm outside their borders, indicates that IEL’s notion of sovereignty over natural resources is not absolute. But while these limitations on state sovereignty bode well for regulating the transboundary effects of states’ energy related activities, they do not apply if the harmful effects of energy-related activities are purely domestic in nature; which they often are, as the impacts of coal mining, dam-building and oil extraction suggest.152

Not explicitly mentioning the responsibility to protect as the foregoing instruments do, article 18 of the ECT is presumably oriented more deliberately towards affirming the supreme legitimate authority of states over their energy sources: “[T]he Contracting Parties recognize state sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law.” The sovereign rights that states are currently asserting over their energy resources in the face of rapid non-renewable fossil fuel resource depletion increasingly reflects states’ view that their energy reserves are a “constituent element of their own national security”; and that there “has been stronger interest than for decades in seeking full control over the three major elements of the ‘energy chain’-production, transit, and processing and distribution.”153 Some believe that such developments are already foreshadowing the rise of “energy nationalism” and unfettered “energy sovereignty” around the globe,154 which might very well serve to only further legitimize, entrench and protect the sovereign claims of states and their corporations over their energy resources, while allowing them to do with these as they please.

In sum, the principle of permanent sovereignty over natural (energy) resources, despite being widely accepted as a rule of customary international law, and despite being considered by

147 Principle 21. 148 Principle 2. 149 Article 3. 150 Preamble. 151 Preambles of both instruments. 152 See, for example, Shell Oil Company’s devastating government-sanctioned operations in Nigeria’s oil fields. H Yusuf, ‘Oil on Troubled Waters: Multinational Corporations and Realising Human Rights in the Developing World, with Specific Reference to Nigeria’ 2008(8) African Human Rights Law Journal 79-107. 153 Greg Austin and Danila Bochkarev “Energy Sovereignty and Security: Restoring Confidence in a Cooperative International System” in Greg Austin and Marie-Ange Schellekens-Gaiffe (eds) Energy and Conflict Prevention (Anna Lindh Programme on Conflict Prevention, 2007) 36. 154 Greg Austin and Danila Bochkarev “Energy Sovereignty and Security: Restoring Confidence in a Cooperative International System” in Greg Austin and Marie-Ange Schellekens-Gaiffe (eds) Energy and Conflict Prevention (Anna Lindh Programme on Conflict Prevention, 2007) 36.

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leading commentators as “the cornerstone of modern international environmental law”,155 is not a socio-ecologically protective principle that is appropriate for confronting the Anthropocene’s energy dilemma. Although the post-colonial provisions on permanent sovereignty over natural resources are laudably focused on addressing the North-South divide and foreign exploitation of energy resources, being faithful to the dictates of property rights, they mostly succeed in fashioning sovereignty as a principle legitimizing and emboldening the right to own and exploit energy resources. This has led scholars to propose the counter-narrative notion of “custodial sovereignty”; which implies that “a state is the custodian of its global environmental resources and that other states have an expectation that the relevant state will protect these resources for the whole of mankind.”156 Whether states will be willing to consider such an ecological turn, as it were, remains to be seen; but it seems unlikely considering the rise of energy nationalism and the significant extent to which sovereignty, as meaning the “property-based right to resource exploitation”, has been firmly entrenched as one of the foundational principles of the international legal order and as a justification for unrestricted fossil fuel-laced economic development.

3.4. IEL’s lack of an Earth system approach

It is interesting to note that in few, if in any of the leading texts on IEL, does “energy” feature as a stand-alone subject matter.157 Energy-related issues are instead usually included as a peripheral aspect under the headings of climate change or hazardous substances (mostly nuclear) activities. Conversely, environmental protection is not a central topic that predominantly features in international energy law literature.158 The discussions in these texts often focus on the nexus between law, energy and investment, taxation, trade and dispute settlement, although development of renewable energy sources is present to a limited extent.159 This is not to say, of course, that international energy law is not a fully independent and mature disciplinary focus of the law; as with IEL, it is the subject of several handbooks, specialist journals and university courses. What the foregoing prima facie does suggest, is that the deeply interlinked and reciprocal relationship between what is perceived to be “environmental” issues, “climate” issues and “energy” issues, among others, has not been fully appreciated yet. Instead,

There is a profound and counterproductive discrepancy between the complexity of the climate system as part of a living ontological plane, and law’s fundamentally fragmentary responses, which remain locked (in the main) within path-dependent priorities, boundaries and disciplinary commitments … Legal thought, moreover, has a deep tendency to deploy certain conceptual structures: binaries; reductionisms; atomistic, linear views of causation; taxonomies; separative, bounded domains; territorial jurisdictional parameters, and so forth- none of which fit well with the amorphous complexity of climate change. Law’s taxonomical

155 Philippe Sands and Jaqueline Peel Principles of International Environmental Law 3rd ed (Cambridge University Press, 2012) 201. Own emphasis. 156 Werner Scholtz “Custodial Sovereignty: Reconciling Sovereignty and Global Environmental Challenges Amongst the Vestiges of Colonialism” 2008 55(3) Netherlands International Law Review 323-341 at 336-337. 157 See, for example, Philippe Sands and Jaqueline Peel Principles of International Environmental Law 3rd ed (Cambridge University Press, 2012); Pierre-Marie Dupoy and Jorge Viñuales International Environmental Law 2nd ed (Cambridge University Press, 2018); and Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds) The Oxford Handbook of International Environmental Law (Oxford University Press, 2008). 158 See, for example, Kim Talus (ed) Research Handbook on International Energy Law (Edward Elgar, 2014). 159 See, for example, Mohammed Naseem International Energy Law (Wolters Kluwer, 2017).

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and linear tendencies, if anything, tend to exacerbate law’s inadequate systemic grasp of the challenges.160

Such a segmented scientific approach is clearly reflected in the law itself. It was indicated earlier that despite general agreement on the centrality of energy concerns in the broader global environmental governance agenda, to date, no framework energy treaty exists that holistically and comprehensively focuses on the socio-ecological aspects and Earth system impacts of global energy metabolism. While the elaborate nuclear energy regime targets a specific type of energy, and the global climate law regime focuses on only one of many adverse impacts of carbon-rich energy exploitation, the ECT is not (and was arguably never intended to be) such an all-encompassing instrument. International law has therefore not developed any coherent systems approach to regulate the many interlinked Earth system energy-related issues; it instead does so through separately distinct collections of norms, each of them which are themselves highly fragmented internally with their many issue-specific MEA regimes. This is the current regulatory reality despite an increasing awareness that all Earth system elements are reciprocally interlinked (even temporally),161 and that they cannot and should not be separated or regulated independently. If they are, several negative externalities arise.

For example, one consequence of IEL’s sectoralised approach is differing and contradictory positions adopted across various IEL treaty regimes and normative conflicts that might arise as a result.162 Of even greater concern is IEL’s tendency to shift problems among and between its various regimes: “neglect for cross-sectoral interactions on the part of MEAs comes with a high risk of transfer of harm or hazards from one area or medium to another, or the transformation of one type of environmental harm into another.”163 Problem-shifting is particularly evident, and highly problematic, in the energy domain. For example, the global biofuels drive that has been designed as a climate mitigation strategy is a noble decarbonization initiative, but the propagation of biofuel crops has several disadvantages that essentially do not solve the problem at hand. In addition to being a central driver of neo-colonial land-grabbing practices, as we have seen earlier, biofuel activities lead to massive land clearing, deforestation, destruction of habitats and impacts on biodiversity. Moreover, replacing fossil fuels with bioethanol increases eutrophication because of increased fertilizer use; soil, air and water contamination increases due to increased pesticide use; water scarcity rises as a result of more crops that must be irrigated; and the spread of genetically modified organisms presents a growing concern.164 While these issues are all central to IEL’s spectre of concern, they are ironically being created by IEL itself in an effort to solve the problem of climate change.

160 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 104-105. 161 Benjamin Richardson “Doing Time: The Temporalities of Environmental Law” in Louis Kotzé (ed) Environmental Law and Governance for the Anthropocene (Hart, 2017) 55-74. 162 Louis Kotzé “Fragmentation Revisited in the Context of Global Environmental Law and Governance” 2014(131) South African Law Journal 548-583. 163 Rakhyun Kim and Klaus Bosselmann “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” 2013 2(2) Transnational Environmental Law 285-309 at 298. 164 See, among others, Yi Yang, Junghan Bae, Junbeum Kim and Sangwon Suh “Replacing Gasoline with Corn Ethanol Results in Significant Environmental Problem-shifting” 2012(46) Environmental Science and Technology 3671-3678; Ashlie Delshad, Leigh Raymond, Vanessa Sawicki and Duane Wegener “Public Attitudes Toward Political and Technological Options for Biofuels” 2010(38) Energy Policy 3414-3425.

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Proposals for a new form of IEL that is able to more adequately respond to an inter-related Earth system are emerging. The planetary boundaries theory mentioned earlier is one popular illustration of Earth system interconnectivity that clearly shows how energy is deeply intertwined with virtually all of the nine boundaries. Based on this theory, Kim and Bosselmann have convincingly argued that IEL lacks a single unifying and all-embracing Grundnorm in the way that other areas of international law, such as trade law (i.e., free trade) or human rights law (i.e., protection of dignity), do.165 Such a Grundnorm (which they believe could be the principle of ecological integrity) must be adopted by IEL to respond to its fragmented, issue-based and sectoralized nature.

Another proposal is to rethink IEL alongside the notion of “Earth system governance”, which is defined as “the sum of the formal and informal rule systems and actor networks at all levels of human society that are set up to steer societies toward preventing, mitigating, and adapting to environmental change and earth system transformation.”166 Departing from this notion of Earth system governance, scholars have recently proposed an alternative to IEL that more fully embraces an Earth system approach; namely “Earth system law”.167 Earth system law seeks to understand the juridical implications of the complex, adaptive, erratic and globally intertwined Earth system and its myriad socio-ecological aspects for the entire living order. What would be required juridically from an Earth system perspective is a fully functioning complex adaptive system of earth system law that adaptively manages other complexly adaptive natural and social systems.168 Such an adaptive system-oriented body of law must simultaneously respect planetary-scale tipping points and pay due consideration to the dynamic interconnections of Earth system components, while accommodating the complexity of interacting planetary boundaries and safeguarding the integrity of Earth’s life-support systems. At its heart, Earth system law must therefore embrace complexity-based thinking:

Apart from mandating new theoretical accounts of law, in practical terms, this might mean challenging law’s path dependencies by embracing notions of fluidity, epistemic uncertainty and humility and making these central to governance responses. This, yet again, points back towards the importance of a renewal or transformation of participative structures and a fundamental re-imagination of ‘participants’. This in turn indicates the need to design imaginative multi-level governance fora reconceiving advocacy and engagement as practices explicitly open to a diverse ecology of knowledges.169

If nothing else, the emergence of alternative juridical paradigms such as Earth system law at least points to the growing realization that IEL, both as a discipline and as a body of law, has become unable and unsuitable to respond to the many interlinked socio-ecological challenges, including in particular the numerous energy-related aspects, of an Earth system that is increasingly being dominated by humans.

165 Rakhyun Kim and Klaus Bosselmann “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” 2013 2(2) Transnational Environmental Law 285-309. 166 Frank Biermann Earth System Governance: World Politics in the Anthropocene (MIT Press, 2014) 9. 167 Louis Kotzé and Rakhyun Kim “Earth System Law: The Juridical Dimensions of Earth System Governance” 2019 Earth System Governance 1-12. 168 Rakhyun Kim and Brendan Mackey “International Environmental Law as a Complex Adaptive System” International Environmental Agreements: Politics, Law and Economics 2014(14) 5-24.169 Anna Grear “Towards ‘Climate Justice’? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy” 2014(5) Journal of Human Rights and the Environment 103-133 at 131.

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3.5. IEL’s unambitious contribution to energy transformations

Considering the urgency of the Anthropocene’s energy dilemma, the extent of its socio-ecological crisis, and the evident complicity of IEL in all of the foregoing, one might be forgiven to think that states will take immediate, more decisive, intrusive, and above all ambitious normative action to address these concerns. But to date, they have not. The evidence of the Anthropocene’s carbon dominated history and its devastation is clear. So too is the realisation that fossil fuels are being depleted at an unsustainable rate and that alternatives must be explored. Yet, states have still not been prompted by this critical existential dilemma to develop an MEA (or MEA regime) that meaningfully seeks to facilitate, in any comprehensive way, the type of wholesale transitions that would be necessary to secure a sustainable energy future. The current climate change regime manages only a half-hearted effort, while it affords considerable leeway to countries in determining and achieving their nationally determined contributions to the global response to climate change.170 Such unambitious commitments in favour of a business-as-usual approach at the expense of Earth system integrity are glaringly inappropriate in light of the Intergovernmental Panel on Climate Change’s (IPCC) recent report Global Warming of 1.5, which confirms that climate change is a far more serious problem than we have imagined, and that much more needs to be done to address it.171

While the “bindingness” of norms is only one of many aspects that reflects on and potentially influences the level of ambition that norms pursue, it does increasingly seem as if states are more willing to be normatively ambitious within the “safer” confines of non-binding instruments than they are under binding MEAs. The benefit of such an approach is that non-binding instruments arguably allow more regulatory flexibility, an accommodative space for innovation, and the opportunity to set ambitious aspirational aims, which, even if these are only partially achieved, might still be better when compared to the limited ambition states usually pursue under binding MEAs. The SDGs (themselves not unproblematic as a result of their sustainable development focus as we have seen earlier), is one example of a non-binding global vision that sets out high rhetoric around international cooperation, development and the onward progression of humanity. The SDGs specifically also focus on global energy governance, with much of the world’s hopes now seemingly pinned on Goals 7 and 13 that respectively focus on affordable and clean energy, and climate action. Yet, laudable as they are, a downside of the SDGs is that they remain policy objectives that must either specifically or more obliquely be promoted by the adoption of laws and regulations. The reality therefore is that the success of the SDGs will always depend, at least partially, on the extent to which they are reflected in IEL, while IEL for its part will significantly increase its own level of normative ambition if it is more closely aligned with the SDGs. Such a reciprocal alignment or convergence has not occurred yet, despite calls in support of such a convergence.172 Whatever ambitious renewable energy and climate change undertakings states have therefore pledged under the SDGs, have not (yet) been taken up in IEL.

Finally, that IEL will in future most possibly follow a business-as-usual approach as far as its level of normative ambition is concerned, is also suggested by the most recent ongoing attempt to reform IEL, namely, the Global Pact for the Environment (Global Pact) initiative.173 Initiated by French think tank, Le Club de Juristes, a UNGA resolution in support of further developing the Global Pact was adopted with a considerable majority by 170 Article 3. 171 See, https://www.ipcc.ch/sr15/. 172 See, generally, Duncan French and Louis Kotzé (eds) Sustainable Development Goals: Law, Theory and Implementation (Edward Elgar, 2018).

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the UNGA on 10 May 2018.174 Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of IEL principles; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument.175 Regrettably, as I have argued in detail elsewhere with French,176 a plain reading of the Global Pact in its present draft form suggests that it fails to raise normative ambition, especially in the context of energy and climate change. It often regurgitates many, though not all, generally accepted principles of IEL, and while it recognises the “urgency to tackle climate change” in its preamble, its operative provisions are entirely silent on tackling climate change and/or transitioning to renewable energy.177 As it stands, the Pact is therefore neither as radical as it could have been, nor as it should be if it is to act as an ethically-based higher order normative instrument that binds states to clear obligations that could address the socio-ecological crisis of the Anthropocene and its energy dilemma.

That the Global Pact will possibly not contribute significantly to raise IEL’s level of normative ambition is further evident from the recent “technical and evidence-based” UN Secretary-general report that was commissioned by the foregoing 2018 UNGA resolution. The report must identify and assess “possible gaps in international environmental law and environment-related instruments with a view to strengthening their implementation”.178 Recently published, it is currently being considered by an ad hoc open-ended working group established under the resolution, to “discuss possible options to address possible gaps … and, if deemed necessary, the scope, parameters and feasibility of an international instrument”.179 The gap report confirms much that we already know, namely, that there are

… significant gaps and deficiencies with respect to the applicable principles of environmental law; the normative and institutional content of the sectoral regulatory regimes, as well as their articulation with environment-related regimes; the governance structure of international environmental law; and the effective implementation of, compliance with and enforcement of international environmental law.180

173 See for a general discussion, P Thieffrey “The Proposed Global Pact for the Environment and European Law” 2018(27) European Energy and Environmental Law Review 182.174 UNGA, ‘Towards a Global Pact for the Environment’ UN Doc A/RES/72/277 (10 May 2018).175 See also https://globalpactenvironment.org/en/.176 Louis Kotzé and Duncan French “A Critique of the Global Pact for the Environment: A Stillborn Initiative or the Foundation for Lex Anthropocenae?” 2018(18) International Environmental Agreements: Politics, Law and Economics 811; Duncan French and Louis Kotzé “’Towards a Global Pact for the Environment’: International Environmental Law’s Factual, Technical and (Unmentionable) Normative Gaps” (2019) Review of Comparative and International Environmental Law 1-8. 177 While it innovatively provides for the principle of non-regression (article 17), its level of normative ambition could have been raised considerably by, for example: replacing the anthropocentric orientation of the Pact with an ecocentric one; embedding an Earth-system approach in all of the provisions of the Pact; supplementing the decades-old principles of IEL with principles such as in dubio pro natura, Earth-system integrity and intra-generational and intra-species justice and equity; introducing binding obligations for non-state actors (particularly transnational corporations); providing for the rights of nature; and introducing the concept of planetary boundaries as a minimum threshold or standard that IEL must strive to achieve and maintain. 178 UNGA, ‘Towards a Global Pact for the Environment’ UN Doc A/RES/72/277 (10 May 2018) para 1. See,Duncan French and Louis Kotzé “’Towards a Global Pact for the Environment’: International Environmental Law’s Factual, Technical and (Unmentionable) Normative Gaps” (2019) Review of Comparative and International Environmental Law 1-8.179 UNGA, ‘Towards a Global Pact for the Environment’ UN Doc A/RES/72/277 (10 May 2018) para 2.180 UNGA “Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment” UN Doc A/73/419 (30 November 2018).

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The report does not expressly address the issue of lack of normative ambition, suggesting perhaps that it does not consider the lack of ambitious norms to be a gap in the strict sense of the word. Whatever the case may be, it also does not include any findings on the state of, and possible gaps associated with, IEL in relation to transitioning to renewable energy, or a radically different approach to tackling climate change. It remains to be seen to what extent the Global Pact and its accompanying gap report will prompt states to adopt more ambitious IEL norms; but it is unlikely that they will.

4. Conclusion

Glikson says, “[I]t would take a species possessing absolute wisdom and total control to prevent its own inventions from getting out of hand.”181 The human species have neither, and we must now deal with the consequences of the many energy hungry inventions, such as the steam engine, automobile and jet plane, that have made life easier for us. What we do have, however, is a collection of laws that can help us deal with the consequences of our inventions. These consequences are vividly explicated by the Anthropocene’s socio-ecological crisis and its attendant energy dilemma. I have sought in this piece to show that IEL has been complicit in causing this crisis and dilemma and that it is therefore in its present guise not up to the task of co-facilitating a transition to a new sustainable energy paradigm for the Anthropocene. This is not to say that IEL cannot change; it can and will have to if it intends to remain relevant in the face of a changing Earth system.

When contemplating what an energy transition in the Anthropocene will look like and what the inevitable role of IEL will be in this transition, going forward, there will be a critical need to rethink, at the very least: IEL’s neoliberal anthropocentric orientation, its embedded colonial legacies and continued support of neo-colonialism, its entrenchment of the sovereign right to exploit energy resources, its lack of an Earth system approach, and its normatively unambitious nature. This might seem like a big ask, and efforts to reform IEL might very well run up against the barriers of Realpolitik, as they often do. But I also suspect that the extent of human and non-human suffering that is now apparent the world over, is such that it would be increasingly difficult for the many role players in global environmental governance to ignore their responsibility to finally address these shortcomings of IEL and to confront, head on, through extensive reforms, IEL’s structural complicity in the Anthropocene’s socio-ecological crisis and its energy dilemma.

181 Andrew Glikson “Fire and Human Evolution: The Deep-time Blueprints of the Anthropocene” 2013(3) Anthropocene 89-92 at 92.

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