Ought states to be legally obliged to protect the sustainability of the global environmental system?
Peer reviewed, Journal article
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Original versionNordisk miljörättslig tidskrift. 2019, 11 (2), 89-113.
My opinion is that there is a need to reformulate the traditional paradigm of international law, which is that states have sovereignty over the environment within their territory and jurisdictional areas. I propose a new paradigm, based on the nature of the global environmental system, scientific proof of environmental destruction, and an untraditional interpretation of the existing sources and principles of international law. A duty for states to protect the sustainability of the global environmental system would reframe the legal relationship between states and the environment. It would entail a shift away from state rights of sovereignty over their environment to a duty for states to protect the global environment. I aim to show that the shift in perspective may find a legal basis in an untraditional interpretation of existing sources of international law. The suggested paradigm would not replace sovereignty as a legal concept. It would rather be a reinterpretation or reframing of it, emphasizing the duty to protect the environmental sovereignty- the sustainability- of all states. States have not consented to it. It is a proposal with a view to the future law. I also briefly explain how a new paradigm would entail that states have to protect a minimum of environmental quality, sufficient to uphold nature’s carrying capacity, that it could challenge the existing rule of burden of proof in international law, and provide new approaches to international law -making and interpretation.