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Edited by Marie Aronsson-Storrier and Rasmus Dahlberg
Louis J. Kotzé and Duncan French
Humans only seem able to function well if our actions are limited by boundaries. History seems to teach us that unconstrained free will is a recipe for disaster; if left to our own devices, we will do whatever we want without much consideration of actual or potential future consequences. This truism - always characterised with noble exceptions - seems to be as accurate at the community level as it is (often) for the individual. And that is why we need boundaries: boundaries set limits, and these limits are meant to achieve, maintain and/or return us to what is perceived to be a desired condition.
Duncan French and Louis J. Kotzé
This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.
Rule of law is a Sustainable Development Goal (SDG) seeking to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels (SDG 16). It enjoys wide global support, and within the United Nations system the rule of law is considered paramount for achieving other sustainable development goals, such as the rights to water, food, and energy. While there is much merit to this view, this chapter argues that the rule of law may at times be the single biggest obstacle for achieving the other SDGs. The chapter starts by highlighting the main rule of law theories from which SDG 16 draws, namely formal, procedural and substantive. All three theories require different kinds of certainty that is at odds with the uncertainty of the socio-ecological ‘real’ world. This uncertainty is caused mainly by the lack of scientific data and understanding of biological systems, economic and social risks, and the dynamic and complex nature of socio-ecological systems. If science cannot be certain of how the socio-ecological world operates or will operate, neither can the (rule of) law that seeks to regulate the human–environment interface. The chapter concludes by discussing two categories of legal mechanisms that may be used to reconcile the (rule of law’s) need for certainty, and the uncertainty of the socio-ecological world. In the first line of inquiry it suggests that environmental regulations should be designed to alleviate scientific uncertainty by being adaptive. In the second line of inquiry it suggests courts are required to exercise their discretion in evaluating evidence and interpreting the law. These two mechanisms to tackle scientific uncertainty require major concessions from the rule of law but they need not be its demise. The rule of law trickles down to questions like how well and openly the decisions are reasoned.
Ed Couzens, Alexander Paterson and Sophie Riley
This chapter begins with an explanation of the various threats facing, first, marine biodiversity and, second, biodiversity in forests. Both suffer from numerous threats and from the increased cumulative impact of these threats. The chapter then considers the legal framework for governance of marine biodiversity, explaining that there have been four major documents or instruments which have driven this legal development more than have any others: Huig de Groot’s pamphlet Mare Liberum, published in 1609; the judgment in 1898 of the arbitral tribunal in the Bering Sea Fur Seals Arbitration; the Proclamation by US President Truman in 1945 of a ‘Policy with Respect to Coastal Fisheries in Certain Areas of the High Seas’; and finally the United Nations Convention on the Law of the Sea (UNCLOS) (adopted 1982, entered into force 1994). A fifth may soon be adopted – if current efforts toward a global convention on the protection of biodiversity in areas beyond national jurisdiction are successful. In addition to these, there are hundreds of relevant international instruments, of global, regional and bilateral scope. In contrast, it is explained, there is little international regulation of forests, with many of the most relevant instruments being of a non-binding nature, such as the Forest Principles of 1992. In the face of this absence of regulatory instruments, recourse must be had to instruments of a more general nature. In conclusion, similarities and differences are highlighted between the regulatory regimes for forests and the marine environment, and it is noted that while one is arguably over-, and the other under-, regulated, neither is having the desired effect, and biodiversity is declining in both. That neither approach is working effectively is instructive, and a topic worth further study.