(Past) Reflections on the (Future) Origins of Earth System Law Principles

This chapter engages in a thought experiment that ponders what contextual conditions would be necessary for Earth system-inspired principles to ever become recognized as principles of international law. Keeping in mind the purpose of the present volume to imagine how ESL ‘principles’ might guide the adaptation or re-orienting of law around the concept of the ‘Earth system’ in the future, this chapter adopts a historical gaze to situate the project within a larger discussion about how international law changes and where its principles come from. By looking at the origins and evolution of three major principles from international environmental law, namely the polluter pays principle, the prevention principle, and the precautionary principle, it reveals that international legal principles are birthed at moments when jurists, diplomats and/or judges and arbitrators need normative reference points to guide their decision-making in the face of new problems that complicate the ordinary and practical concerns of state actors and international organizations. Furthermore, the original meanings and purposes of international legal principles can and do change over time as the demands for whatever optimizing benefits they bring also change and as they are put to multiple new uses. Given that, this chapter argues that for Earth system-inspired norms to ever become principles of international law it would be necessary as a precondition that international legal actors, especially states, to willingly orient themselves towards something resembling the concept of the ‘Earth system’ for which they would require such principles to guide their future decision-making and dispute resolution. In other words, one should expect Earth system principles like those proposed in this volume to emerge on the global stage as legal instruments only if and when demand for them arises as a result of an a priori shift in the international political and legal order to an Earth system orientation.