Table Of ContentPraise for Global Environmental Constitutionalism in the Anthropocene
‘The first comprehensive treatise of the burgeoning literature on global environmental
constitutionalism, this book is incredibly well researched, insightful and inspirational.
A landmark publication for years to come.’
Professor Klaus Bosselmann, University of Auckland, New Zealand
‘With humanity poised on the precipice of an environmental abyss, we need intellectual
visionaries to design and build the bridge to a sustainable future. With Global Environ-
mental Constitutionalism in the Anthropocene, Professor Louis Kotzé demonstrates that
he not only possesses such vision, but can articulate it in a clear, concise, and compelling
fashion. While Kotzé acknowledges the formidable magnitude of the challenges we face,
his book identifies prospective solutions and thus offers a much-needed beacon of hope.
Professor David Boyd, Simon Fraser University, Canada
‘Professor Kotzé’s Global Environmental Constitutionalism in the Anthropocene serves as
a tempered tour de force for using constitutionalism to re-imagine how global juridical
and governance structures can be deployed in new ways to save the planet. Kotzé makes
the strong case that global environmental constitutionalism already provides means for
transformative environmental progress, that is, if we are up to the task. The book is an
essential addition to the growing dialogic canon of environmental constitutionalism. It
proposes new cognates and constructs in the global conversation about how constitu-
tionalism in general and environmental constitutionalism in particular can serve as a
necessary if not sufficient mechanism for advancing sustainability, improving environ-
mental outcomes, and respecting human dignity. Perhaps most importantly, Kotzé fash-
ions a compelling and convincing rebuttal to the Anthropocene itself, reinforcing the
notion that we are the change we seek.’
Professor James May and Professor Erin Daly, Widener University, Delaware Law School,
United States
‘This book is a brilliant exposition of the intersection between two emerging yet crucial
concepts in global environmental thought. It is a groundbreaking contribution to the
fields of international law, constitutional law and environmental law. Kotzé sheds new
light on the most important challenges of our time, and the most promising pathways
for meeting them.’
Professor Lynda Collins, Centre for Environmental Law and Global Sustainability, Univer-
sity of Ottawa, Canada
‘The realisation that humans have become an Earth-shaping force of geological pro-
portions is only now permeating the social sciences. The often conservative legal dis-
ciplines are among the most obstinate, yet important, areas of knowledge where this
re-conceptualisation is needed. The penetrating and insightful study of Professor Kotzé
is therefore of great importance in that it focuses on a critical legal discipline, constitu-
tional law, and succeeds in fleshing out the implications and potential of environmental
constitutionalism from a global governance perspective.’
Professor Jorge E Viñuales, Harold Samuel Chair of Law and Environmental Policy, Univer-
sity of Cambridge, United Kingdom
‘Louis Kotzé’s book is a ground breaking, timely and imaginative interrogation of two
increasingly influential framings of the current global ecological situation. Bringing
together the ‘Anthropocene’ and ‘global environmental constitutionalism’, Kotzé con-
fronts the juridical implications of the Anthropocene imaginary by providing the first
systematic treatment of the concepts of environmental constitutionalism and global
environmental constitutionalism and by charting a new constitutionalized framework
for human ecological responsibility. This thought-provoking text is highly recom-
mended reading.
Professor Anna Grear, Professor of Law and Legal Theory, Cardiff University,
United Kingdom
‘This is a book about responsibility in the age of the Anthropocene. It identifies the core
issues of the current socio-ecological crisis, points out priorities, and proposes interven-
tions. Kotzé delivers a compelling argument that humanity finds itself in a rare global
constitutional moment that requires us to reimagine the law at a planetary scale and to
create, enact, and advance global environmental constitutionalism.’
Professor Maria Ivanova, University of Massachusetts, United States
‘Professor Kotze eloquently and persuasively contends that in order to respond to the
challenges of the new era of the Anthropocene, it is necessary to construct a new legal
framework, which unites environmental and constitutional principles at a global level.
Comprehensive, engaging, and ambitious, this book will be a seminal work in this field
for years to come.’
Professor John H Knox, United Nations Special Rapporteur on Human Rights and the
Environment; Henry C Lauerman Professor of International Law, Wake Forest University,
United States
GLOBAL ENVIRONMENTAL CONSTITUTIONALISM
IN THE ANTHROPOCENE
There is persuasive evidence suggesting we are on the brink of human-induced
ecological disaster that could change life on Earth as we know it. There is also a
general consensus among scientists about the pace and extent of global ecological
decay, including a realisation that humans are central to causing the global socio-
ecological crisis. This new epoch has been called the Anthropocene. Considering
the many benefits that constitutional environmental protection holds out in
domestic legal orders, it is likely that a constitutionalised form of global environ-
mental law and governance would be better able to counter the myriad exigencies
of the Anthropocene. This book seeks to answer this central question: from the
perspective of the Anthropocene, what is environmental constitutionalism and
how could it be extrapolated to formulate a global framework? In answering this
question, this book offers the first systematic conceptual framework for global
environmental constitutionalism in the epoch of the Anthropocene.
ii
Global Environmental
Constitutionalism in the
Anthropocene
Louis J Kotzé
OXFORD AND PORTLAND, OREGON
2016
Hart Publishing
An imprint of Bloomsbury Publishing Plc
Hart Publishing Ltd Bloomsbury Publishing Plc
Kemp House 50 Bedford Square
Chawley Park London
Cumnor Hill WC1B 3DP
Oxford OX2 9PH UK
UK
www.hartpub.co.uk
www.bloomsbury.com
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
www.isbs.com
HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the
Diana logo are trademarks of Bloomsbury Publishing Plc
First published 2016
© Louis J Kotzé
Louis J Kotzé has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as
Author of this work.
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means,
electronic or mechanical, including photocopying, recording, or any information storage or retrieval system,
without prior permission in writing from the publishers.
While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned
to any person acting or refraining from action as a result of any statement in it can be accepted by the authors,
editors or publishers.
All UK Government legislation and other public sector information used in the work is Crown Copyright ©.
All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This
information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/
doc/open-government-licence/version/3) excepted where otherwise stated.
All Eur-lex materials used in the work is © European Union,
http://eur-lex.europa.eu/, 1998–2015.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN: HB: 978-1-50990-758-8
ePDF: 978-1-50990-761-8
ePub: 978-1-50990-759-5
Library of Congress Cataloging-in-Publication Data
Names: Kotzé, Louis J., author.
Title: Global environmental constitutionalism in the anthropocene / Louis J Kotzé.
Description: Portland, Oregon : Hart Publishing, 2016. | Includes bibliographical
references and index.
Identifiers: LCCN 2016019863 (print) | LCCN 2016020004 (ebook) | ISBN 9781509907588
(hardback : alk. paper) | ISBN 9781509907595 (Epub)
Subjects: LCSH: Environmental law, International. | Climatic changes—Effect of human beings
on. | Climatic changes—Law and legislation. | Constitutional law.
Classification: LCC K3585.5 .K68 2016 (print) | LCC K3585.5 (ebook) | DDC 344.04/6—dc23
LC record available at https://lccn.loc.gov/2016019863
Typeset by Compuscript Ltd, Shannon
For Francois Venter:
A Dean, a scholar and a constitutionalist.
vi
PREFACE
It is not a matter of mere coincidence that this book, which focuses on
constitutionalism, was written by a South African. I was just entering university in
the 1990s when Nelson Mandela was set free and the country was standing at the
edge of a ravine into which it could either fall or build a bridge to cross. We chose
to build a bridge. What followed was a new dawn in South Africa’s deeply troubled
history that saw sweeping political transformations that engulfed the c ountry and
sought to change it to its core. This post-apartheid transformation was principally
driven by a constitutional revolution. Constitutionalism created the juridical,
political and social foundations and mechanisms to commence dismantling the
remnants of colonialism, deeply embedded structures of white apartheid privi-
lege, naked racism and unspeakable injustices perpetrated against a majority of
the country’s population for far too long. It was constitutionalism that created
hope, provided opportunities for reconciliation and the possibility to start again.
While South Africa’s constitutional revolution is not yet complete, the power of
constitutionalism became clear to us all.
Today, humanity is confronted by events that, according to various scientific
accounts, are set to affect the continuation of life on Earth. The climate is chang-
ing, biodiversity is being lost at alarming rates, inter- and intra-species injustices
are intensifying and a host of ecological cycles are being flung in such disarray that
the possibility for recovery seems remote. Similar events of ecological upheaval
have occurred during earlier stages in Earth’s geological history, with one signifi-
cant difference: the current socio-ecological crisis is not being caused by volca-
noes or meteors, but by humans. It is in this context that scientists have recently
suggested the Earth system might have entered a new geological epoch called the
Anthropocene. In the Anthropocene humanity takes centre stage as a geological
agent for the first time, elevated to such a position by anthropogenic impacts on
the Earth system since at least the European Industrial revolution; and reflecting
underlying structures of privilege placing particular human interests above any
meaningful concern for the preservation of the interdependent community of life.
Similar to South Africa’s constitutional moment, humanity now stands at the edge
of what could possibly be the most decisive point in human-Earth h istory: we
can make a conscious and deliberate effort to address the Anthropocene’s socio-
ecological crises, or we can remain on the same path that led us to the gaping
ravine we are now facing.
In this book I employ the increasingly popular framework of the Anthropocene
to make out a case in support of using constitutionalism as a means to re-imagine
