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Karen Morrow

Some might wonder why it is necessary to include an ecofeminist approach in a volume on environmental law research methodology. There are a number of reasons why such an approach can add value to our consideration of environmental research: not least, it offers an important counter hegemonic critique of societal engagement with the environment and one that complements other important differential perspectives, such as those of indigenous peoples, and can therefore enrich our understanding of important environmental issues. Just as compellingly, ecofeminist approaches to engaging with environmental questions offer a powerful potential corrective to current dominant, gendered, methodologies which have proved to be of limited effectiveness in addressing environmental degradation. Ecofeminism, with its methodologically distinctive drive to achieve a working fusion of theory and activism, and its commitment to encapsulating the relevance of lived experience in addressing societal challenges, potentially has a great deal to offer in the endeavour to harness the artificially yet routinely sundered conceptual and practical approaches to environmental issues that is arguably a factor retarding progress in addressing complex, large-scale, socially embedded environmental issues. The impetus towards the synthesis of systemic thought and lived experience also recognises the necessity of fostering broader participation in the crafting of environmental policy and law responses to the major environmental problems of our time. To this end ecofeminist methodology employs innovative approaches towards garnering a wide range of gender perspectives that address the neglected complexities of women’s vulnerability and agency as environmental actors. This chapter looks specifically at climate change and the eventual emergence of gender in the United Nations Framework Convention on Climate Change (UNFCCC) regime, through making a case and ultimately obtaining recognition for the gender constituency in this, the chief institution of global climate governance. This ongoing process has seen women employ feminist approaches, such as transversal politics (with which this chapter is chiefly concerned), as vehicles facilitating the construction of knowledge and coalition-building to good effect in adding weight to their case for inclusion and ultimately influence in this most crucial, contentious, contested environmental law and policy context and arguably offering richer treatment of the substantive issues than hitherto.

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Karen Morrow

This Chapter traces the emergence and development of formal civil society/major group participation in environmental law and policy making processes from its rather weak conceptual origins in the Declaration of the United Nations Conference on the Human Environment in Stockholm in 1972. It outlines the emergence into the mainstream of the drive to incorporate ‘bottom-up’ participation in environmental law and policy making, supplementing the traditional ‘top-down’ model of the established international regime in this sphere. This development rode on the coat tails of sustainable development through both the methodology and the inherent content of sustainable development identified in the outcome report Our Common Future of the World Commission on Environment and Development as partially embraced by the United Nations Conference on Environment and Development (UNCED) in Rio in 1992 and in the Rio Declaration (specifically Article 10), as well as the ‘blueprint’ for sustainable development of Agenda 21. At the same time the drive to promote bottom-up participation in the emerging field of sustainable development was also provided by vigorous civil society activism and engagement with the UNCED process, as exhibited in the influence of the Women’s Congress for a Healthy Planet in rendering the originally gender blind draft of Agenda 21 gender literate. The initial slow embrace of broader approaches to participation in the limited sphere of influence of the now defunct Commission for Sustainable Development (CSD) and its later General Assembly-prompted development of good practice in this regard, are considered. The Chapter observes that the virtual ‘ghettoization’ of the participation agenda in the restricted institutional context offered by the CSD initially restricted its impact but that its gradual development of a sound body of expertise in this regard sowed the seeds for a wider culture change in this regard in the United Nations Environment Programme (UNEP). The Chapter observes that the still-evolving expansive shift in the composition of the international polis in the sphere of sustainable development and environmental law to embrace major groups and other stakeholders that was set in motion by the events referred to above is one hallmark of the shift from government to governance in this area of transnational global endeavour. In considering the development of participation rights, the Chapter considers the role played by the theoretical construction of environmental citizenship and uses Bell’s neo-Rawlsian analysis of this area to frame discussion of the respective merits and limitations of procedural environmental rights and a substantive environmental right in progressing praxis in this field. The Chapter concludes by looking at more recent developments in the participation Agenda as made evident in outcomes of the United Nation as Conference on Sustainable Development (UNCSD) in 2012. The argument is made that, while the UNCSD proved disappointing in many ways, there is room for qualified optimism in its relatively enthusiastic reiteration and apparent augmentation of the participation agenda; also arguably evident in the subsequent early work of the new High-Level Political Forum on Sustainable Development – showing that participation remains very much a live issue.

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Karen Morrow

This chapter considers key factors shaping the pursuit of gender equality and women’s empowerment under the SDGs. In so doing, it examines some of the most significant concerns that may militate against the goals achieving these ends. These include the legacy of the Millennium Development Goals regime and in particular the limitations that have become apparent during its operation in progressing societal change through the goals, targets and indicators-oriented approach pioneered therein and pursued in the successor SDGs regime. The chapter also discusses the tensions inherent in the adoption of a discrete gender goal on the one hand and integration of gender under other goals on the other. The principal advantage of a discrete gender goal lies in according ‘headline’ status to the issue; integration in other goals, however, offers the potential to ‘mainstream’ gender coverage in key substantive areas. The concomitant disadvantages of these approaches are potentially ‘siloing’ gender issues and dilution of focus respectively. The use of indicators and their limitations, particularly in light of current levels of information and communications technology and data challenges are interrogated. The chapter concludes by examining the implications of the international community’s broader evasion of the interface between goals regimes and the global human rights agenda for gender issues. Discussion centres around the fact that, as gender concerns now enjoy strong coverage in human rights law, along with the legal status that this invokes, divorcing the SDGs regime from such protection stands to act to the particular disadvantage of women, negating a key route to securing accountability for the impacts of state action/inaction on the ground.

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Karen Morrow

The burgeoning climate change crisis is, understandably, spurring efforts to press human rights law into service to address some of its manifest impacts on people. This approach is, however, subject to inherent limitations – above all, the inevitably anthropocentric nature of human rights law means that, significant as it may prove, it cannot adequately carry the burden of addressing anthropogenic climate change. The shortcomings of existing approaches to law and policy in addressing this ‘super-wicked’ problem mean that a pernicious disengagement with issues must be addressed. In this context, where cumulative human activity is now recognised as posing an existential threat, finding new ways to conceive the human/environment relationship become imperative. Giving effect to the juxtaposition between human rights and human responsibility offers one potential route to do so. Meaningfully progressing human responsibility beyond the conceptual in international environmental law has, however, proven highly problematic. To revivify the debate, this chapter probes the possibilities of applying an eco-feminist-framed, ecologically informed iteration of the responsibility-rooted feminist ethics of care as a foundation for refashioning the human/environment relationship in a grounded, holistic and sustainable fashion, more fit to address the challenges we now face.

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Karen Morrow

In Chapter 19, Karen Morrow considers the legal framework related to the ‘land system change’ boundary, and shows in particular how this boundary directs attention towards the conversion of land for multifarious human purposes. In addition to being hugely significant in itself, land use change also exhibits marked interaction with many of the other planetary boundaries. As distinct from some of the more technical boundaries, land use change is directly and visibly rooted in intentional human activities. In consequence, addressing it requires encapsulating multiple dimensions, beyond the quantitative, extending to qualitative, functional, and spatial elements. This multi-dimensionality and the fact that the nature of land use change brings the social aspect of the boundary very much to the fore, makes selecting an appropriate indicator for it particularly challenging. The current indicator, global forest area, is well established in legal scholarship as contentious in its own right. The choice of forests as an indicator also serves to dramatize the more fundamental difficulty of finding an effective way to marry the science of planetary boundaries to human social systems. The challenges faced in this regard are profound, but not insuperable, and having highlighted the nature of the task in hand, the chapter concludes by examining possible future directions of epistemic travel.

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Edited by Karen Morrow

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Karen Morrow

This paper considers recent domestic case law demonstrating developments of particular importance in pursuing environmental claims before the courts in England and Wales. It reflects on the evolution of mainstream human rights law, specifically the European Convention on Human Rights and the Human Rights Act in engaging with environmental claims before the courts. Further discussion focuses on the development of specifically environmental rights based regimes, in particular, the Aarhus Convention and the EU provisions that partially implement it and their application in domestic law.