The 'Ecosystem Approach' in International Environmental Law

Genealogy and Biopolitics

Vito De Lucia

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351366526
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The ecosystem approach, broadly understood as a legal and governance strategy for integrated environmental and biodiversity management, has been adopted within a wide variety of international environmental legal regimes and provides a narrative, a policy approach and in some cases legally binding obligations for States to implement what has been called a 'new paradigm' of environmental management. In this last respect, the ecosystem approach is also often considered to offer an opportunity to move beyond the outdated anthropocentric framework underpinning much of international environmental law, thus helping re-think law in the Anthropocene.

Against this background, this book addresses the question of whether the ecosystem approach represents a paradigm shift in international environmental law and governance, or whether it is in conceptual and operative continuity with legal modernity. This central question is explored through a combined genealogical and biopolitical framework, which reveals how the ecosystem approach is the result of multiple contingencies and contestations, and of the interplay of divergent and sometimes irreconcilable ideological projects. The ecosystem approach, this books shows, does not have a univocal identity, and must be understood as both signalling the potential for a decisive shift in the philosophical orientation of law and the operationalisation of a biopolitical framework of control that is in continuity with, and even intensifies, the eco-destructive tendencies of legal modernity. It is, however, in revealing this disjunction that the book opens up the possibility of moving beyond the already tired assessment of environmental law through the binary of anthropocentrism and ecocentrism.

Part I

Setting the stage

1 Setting the stage

Introduction: time of crisis. Ecology, law and the Anthropocene

We live in a time of ecological emergency. Indeed, unfolding ecological crises intersect and overlap at multiple scales and across multiple domains. The Millennium Ecosystem Assessment, a particularly authoritative source, speaks of ‘substantial and largely irreversible loss in the diversity of life on Earth’, and finds that ‘approximately 60% … of the ecosystem services examined … are being degraded or used unsustainably, including fresh water, capture fisheries, air and water purification, and the regulation of regional and local climate, natural hazards, and pests’.¹ Even more dramatically, UNEP’s 5th Geo Report emphatically articulates its main message thus: ‘[t]he scale, spread and rate of change of global drivers are without precedent. Burgeoning populations and growing economies are pushing environmental systems to destabilizing limits’.²

The world’s fisheries are in a state of decline, with over 80 per cent³ (and as much as 90 per cent)⁴ of the fish stocks for which assessment information is available reported as being fully exploited or overexploited, and almost 30 per cent of capture fisheries considered to be overexploited, depleted or recovering from depletion.⁵ However, even these dismal figures may be optimistic, according to some critics of the methodology that the FAO used to arrive at the preceding figures.⁶ Other models provide far gloomier figures, putting the percentage of depleted or overexploited fish stocks at over 56 per cent.⁷ Regardless of the static image of how things are, however, there is broad agreement on the dynamic trend, which is towards a global worsening of the situation of most fish stocks.⁸ Perhaps, then, it is not far-fetched to entitle an editorial as dramatically as ‘the end of fish’.⁹

In addition to this already dramatic picture, global warming and the ensuing climatic changes – both present and future – exacerbate every single one of the environmental problems mentioned, and create new ones at every imaginable temporal and spatial scale. Global atmospheric concentrations of carbon dioxide, methane and other greenhouse gases (GHGs) have increased markedly because of human activities since the beginning of the industrial revolution, and now significantly exceed pre-industrial levels.¹⁰ The global increases in the concentration of GHGs ‘are due primarily to fossil fuel use and land use change, while those of methane and nitrous oxide are primarily due to agriculture’, as the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) reported.¹¹

The Fifth Assessment report of the IPCC sharpened its message, stating that ‘[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased’.¹² Moreover, ‘[e]ach of the last three decades has been successively warmer … than any preceding decade since 1850’, and the period 1983–2012 ‘was likely the warmest 30-year period of the last 1400 years’ in the Northern Hemisphere.¹³ Working Group II, furthermore, issued a specialized report dedicated to impacts, adaptations and vulnerability.¹⁴ This report described the wide range of impacts already observed, whose severity is set to increase due to a momentum already built into the climate system (due to past emissions whose effects have not yet materialized). Such observed effects include an increase in the severity and frequency of extreme weather events; sea level rise (which is already threatening low-lying Pacific islands States); alteration of hydrological systems, affecting water resources in terms of quantity and quality and negative effects on crop yields.¹⁵ Moreover, each of these effects is poised to be further exacerbated in the future, and to compound the effects on the world’s ecosystems due to non-climatic stressors. It may be useful to recall that, in a recent address, climatologist James Hansen (Director of the NASA Goddard Institute for Space Studies) reiterated the warning that we find ourselves in a ‘planetary emergency’.¹⁶ UN Secretary General, Ban-ki Moon, addressing the High-level Plenary meeting at the recent High-level Segment of the 18th Conference of the Parties to the UN Framework Convention on Climate Change, was equally clear, as he tried to urge the Parties to move forward: ‘[l]et us be under no illusion. This is a crisis.’¹⁷

The inadequacy of environmental law in the Anthropocene

The primary response of law to contemporary ecological crises takes the form of environmental law. Environmental law, as a separate branch or field of law, emerged in the early 1970s¹⁸ and has enjoyed sweeping success, at least if judged by the growth of environmental legislation at all levels of legal articulation. Environmental law however, legal theory increasingly suggests, suffers from decisive structural inadequacies that prevent it from meaningfully addressing the contemporary ecological emergencies outlined in the previous section.¹⁹ Anna Grear suggests in this respect, that law (law in general, as a practice and as a theory that encompasses, but exceeds environmental law) has ‘failed thus far to respond in any way that really counts’.²⁰ Klaus Bosselmann similarly observes that environmental law merely mitigates the ecological damages deriving from industrial activities.²¹ While certainly able to save some trees, observes further Bosselmann, environmental law is losing the forest, an observation echoed by other scholars in similar, if not equivalent terms, and with even more force.²² It is in this sense then, that environmental law, while responding to a number of immediate problems, has not done so in any way that really counts.

Indeed, environmental law has arguably predominantly functioned as a mitigating instrument whose strategic aim is that of containment: the ecological disruption of economic and industrial activities is to be mitigated, contained or otherwise reduced to the extent possible, and in a cost-effective manner, in line with liberal environmentalism.²³ The questions raised within the context of environmental legal and policy discourse are not so much about whether certain activities should be carried out, but rather how, where and under which conditions.²⁴ Incorporating best available technologies (BATs), best environmental practices (BEPs), and emphasizing the internalization of environmental costs, environmental law maintains for the most part a ‘business as usual’ tone²⁵ and a largely procedural character. This can perhaps be usefully understood as a merely descriptive process of legal regulation, where the threshold between legal and illegal is demarcated on the basis of feasibility, a feasibility routinely captured in legal instruments and legal texts with formulations such as, e.g., ‘as far as possible’ and ‘as appropriate’²⁶ and ‘cost effective’,²⁷ or through references to prevailing and generally accepted standards.²⁸ And while these open-ended references allow the adaptation of legal principles and regimes to changing technical practices and technological innovations, environmental regulation remains a mirror of the practices of the regulated actors and environmental law acts as recipient of available norms established in other functional realms, such as technology, economics and science, repackaged in a legal vocabulary.²⁹

Environmental law, legal modernity and anthropocentrism

Environmental law’s key problematics are a reflection or a consequence of the broader legal ideology within which it emerged. In this sense, environmental law inevitably reproduces the key thresholds, concepts and categories of legal modernity, and its underlying worldview.³⁰ There is abundant literature outlining, describing and exploring the ways in which legal modernity and its categories affect environmental law in multiple ways.³¹ However, a very brief outline of the ways in which environmental law inherits key thresholds, concepts and categories will prove useful for the purposes of this book. The expression legal modernity refers, in the context of this book, to the particular legal inflection or articulation of modernity as a socio-cultural formation. While modernity itself is a very complex and contested concept,³² with temporal, cultural and theoretical framing traversing and stretching its semantic space and conceptual articulations,³³ I take modernity to indicate a particular cultural formation characterized by a set of specific ontological, epistemological and axiological commitments. These commitments, in turn, have a fundamental role in shaping law, as we shall briefly see in the remainder of this section.

A central element of modernity is arguably the Cartesian separation between mind and matter.³⁴ This binary idea has simultaneously ontological, epistemological and axiological implications, and underpins a series of modulations and permutations that are translated into a series of binaries. Thus, modernity arrays the world in subjects and objects, cultures and natures, wilful actions and mechanistic motions, rational minds and material bodies. In turn, these binaries characterize all the central categories of legal modernity. Law, moreover, has historically operationalized these binaries (and it has often legitimized them, given the particular authoritative role law has within the cultural context of modernity). Generally, law and culture are arguably entangled,³⁵ and are mutually constitutive.³⁶ Law itself is a p...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Preface
• PART I: Setting the stage
• PART II: A genealogical reading of the ‘ecosystem approach’
• PART III: A biopolitical reading of the ‘ecosystem approach’
• Bibliography
• Index