Sustainability: Can Law Meet the Challenge?

Article excerpt

It is commonplace to note that the world is experiencing an unprecedented rate of change. (1) The "boundary shattering force[s]" (2) of globalized markets and new technologies are likely to continue smashing through pre-existing social and political fault lines for the foreseeable future. This rate of change has significant ramifications for the sustainability of human society. Indeed, making the transition to a sustainable society may be the greatest challenge that we face as a species. The role of law, and lawyers, in that process has yet to be determined. This essay argues that law can be a tool for encouraging that transition to sustainability.

Globalization is often touted as promoting global economic growth, lowering prices for consumers, and creating the conditions for democracy and peace around the world. (3) At the same time, it is also demonized as being "wonderful for managers and investors, but hell on workers and nature" (4) thus creating a global race to the bottom for wages, safety, and environmental protection. (5)

There is surely some truth to both pictures of globalization. I am not here to take a position on that perennial debate. Instead, I want to direct your attention to a particular set of sustainability challenges that are exacerbated by globalization, but can only be addressed through global solutions.

Part I of this article will briefly sketch the scope and scale of the sustainability challenges we face. Part H describes how international law to date has responded to those challenges. Part III then highlights two structural problems with the existing international law approaches to sustainability. Finally, Part IV proposes some possible solutions and identifies emerging trends toward incorporating those solutions into international law.

I. SCOPE AND SCALE OF THE PROBLEM

The world's human population is expecting a 3 billion person increase within the next 50 years to 9.2 billion people. (6) That means the world population will triple in the hundred year period over 1950-2050. (7) Today's human population of 6.8 billion persons already has an ecological footprint significantly larger than the earth itself. Indeed, the Global Footprint Network reports that humanity's current ecological footprint is 1.5 planets--half a planet more than earth. (8)

This mismatch between our supply of worlds to inhabit and exploit and our ecological footprint is stark. It means that, as a species, we are consuming more resources each year than the earth can generate and producing more waste than the earth can absorb. (9) We are fouling our nest. Even worse, we are doing this while 40% of the earth's current population (2.6 billion people) struggle to survive who are living on the equivalent of $2.00 or less per day. (10) The number of people facing chronic hunger rose to a record 1 billion in 2009. (11) At the same time, an overwhelming majority of the world's fisheries are either fully exploited or overfished. (12) Additionally, we are losing biodiversity (12) and forests (14) at an alarming rate.

Human demands on the world's biocapacity have more than doubled since 1961. (15) In 2007, humanity consumed the resources equivalent to 1.5 planet Earths to support its activities. (16) Imagine our ecological footprint if those suffering from food insecurity and those living in abject poverty had access to more resources. Americans amount to about 5% of the world's population, but consume 25% of the total energy. (17) Overall, the per person resource demand in the United States is roughly twice the bio-capacity of the country. (18) If the world's total population all lived the lives of middle-class Americans, we would need at least four planet Earths to meet the sum total of those resource demands (19)--and that is without allocating any share of the resources of those four Earths (such as food, water, and space) to other species. Obviously, we only have one world, and we share it not only with each other but with countless other species. …