Table Of Content

RULE OF LAW FOR NATURE “Human laws must be reformulated to keep human activities in harmony with the unchanging and universal laws of nature.” h is 1987 statement by the World Commission on Environment and Development has never been more relevant and urgent than it is today. Despite the many legal responses to various environmental problems, more greenhouse gases than ever before are being released into the atmosphere, biological diver- sity is rapidly declining and i sh stocks in the oceans are dwindling. h is book challenges the doctrinal construction of environmental law and presents an innovative legal approach to ecological sustainability: a rule of law for nature that guides and transcends ordinary written laws and extends fundamental principles of respect, integrity and legal secur- ity to the non-human world. CHRISTINA VOIGT is a Professor at the Department of Public and International Law, University of Oslo, Norway, where she works in par- ticular on legal issues of climate change, sustainability and the interface between environmental and trade law. RULE OF LAW FOR NATURE New Dimensions and Ideas in Environmental Law Edited by CHRISTINA VOIGT U niversity Printing House, Cambridge CB2 8BS, United Kingdom Published in the United States of America by Cambridge University Press, New York Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: w ww.cambridge.org/9781107043268 © Cambridge University Press 2013 h is publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2013 Printed and bound in the United Kingdom by CPI Group Ltd, Croydon CR0 4YY A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Rule of law for nature : new dimensions and ideas in environmental law / edited by Christina Voigt. p. cm. Includes bibliographical references and index. ISBN 978-1-107-04326-8 (hardback) 1. Environmental law, International. 2. Environmental protection. 3. Rule of law. I. Voigt, Christina, 1971– editor of compilation. K3585.R85 2013 344.04′6–dc23 2013022963 ISBN 978-1-107-04326-8 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. To my sons Oscar and Victor and their generation CONTENTS List of contributors x Preface xiii Part I E nvironmental law at the crossroads: achievements, shortcomings and challenges 1 1 Twelve fundamental challenges in environmental law: an introduction to the concept of rule of law for nature 3 Hans Christian Bugge 2 Rule of law for nature in a kaleidoscopic world 27 Edith Brown Weiss 3 E volved norms: a canon for the Anthropocene 4 6 Nicholas A. Robinson P art II A rule of law for nature: theories and rel ections 73 4 G rounding the rule of law 7 5 Klaus Bosselmann 5 h e rule of Nature’s law 9 4 Cormac Cullinan Part III D esigning a rule of law for nature: new dimensions and ideas 109 6 E cological proportionality: an emerging principle of law for nature? 111 Gerd Winter 7 S ustainable development and the rule of law for nature: a constitutional reading 130 Louis J. Kotzé vii viii Contents 8 h e principle of sustainable development: integration and ecological integrity 1 46 Christina Voigt 9 h e need to recognize a coherent legal system as an important element of the ecosystem approach 1 58 Froukje Maria Platjouw 10 An emerging legal principle to restore large-scale ecoscapes 1 75 Anastasia Telesetsky 1 1 T raditional norms and environmental law: the sub- Saharan African case study 191 Chizoba Chinweze, Chukwuemeka Jideani and Gwen Z. Abiola-Oloke P art IV Nature’s rights 207 12 Rules of law for use and nonuse of nature 209 Jan Laitos 1 3 Realizing nature’s rule of law through rights of waterways 222 Linda Sheehan P art V P rocedural dimensions of a rule of law for nature 241 1 4 T owards a new instrument for promoting sustainability beyond the EIA and the SEA: the holistic impact assessment 243 Massimiliano Montini 15 Enforcing environmental responsibilities: an environmental perspective on the rule of law and administrative enforcement 259 Annika K. Nilsson 16 Mechanisms for reviewing compliance with international environmental law open to private parties 2 75 Cristina Verones Contents ix Part VI R ule of law for nature and the role of companies and markets 2 93 17 h e green economy will not build the rule of law for nature 295 Rebecca M. Bratspies 1 8 T aking nature seriously: can the UN Guiding Principles tame corporate proi teering? 312 Surya Deva Part VII A rule of law for the oceans 3 29 19 Conservation of marine biodiversity and the International Maritime Organization 331 Tore Henriksen 2 0 Implementing the rule of law for nature in the global marine commons: developing environmental assessment frameworks 347 Robin Warner 2 1 U sing the public trust doctrine to achieve ocean stewardship 365 Mary Turnipseed, Michael C. Blumm, Duncan E. J. Currie, Kristina M. Gjerde, Peter H. Sand, Mary C. Wood, Julie A. Hambrook Berkman, Ryke Longest, Gail Osherenko, Stephen E. Roady, Raphael D. Sagarin and Larry B. Crowder Index 380 CONTRIBUTORS Gwen Z. Abiola-Oloke , MD/CEO United Bank for Africa, Republic of Benin Julie A. Hambrook Berkman , Doctor, Managing Director, Foundation for the Good Governance of International Spaces, UK Michael C. Blumm , Jef rey Bain Faculty Scholar and Professor of Law, Lewis and Clark Law School, USA Klaus Bosselmann , Professor of Law, University of Auckland, Faculty of Law; Founding Director of the New Zealand Centre for Environmental Law at the University of Auckland, New Zealand R ebecca M. B ratspies, P rofessor, CUNY School of Law; Director of the Center for Urban Environmental Reform, USA E dith B rown Weiss, F rancis Cabell Brown Professor of International Law, Georgetown Law, Washington DC, USA Hans Christian Bugge , Professor emeritus in Environmental Law, University of Oslo, Department of Public and International Law, Norway Chizoba Chinweze , Chemtek Associates, Nigeria Larry B. Crowder , Science Director, Center for Ocean Solutions, Stanford University, USA C ormac C ullinan, e nvironmental lawyer, Cape Town, South Africa; research associate, Department of Public Law, University of Cape Town; Director of Cullinan & Associates Inc; Chief Executive Oi cer of EnAct International Duncan E. J. Currie , Director, Globelaw, New Zealand Surya Deva , Associate Professor, School of Law, City University of Hong Kong, Hong Kong SAR, China x