Trusteeship Sovereignty
Discussion
Klaus Bosselmann:
" There is in fact no legally-relevant duty of states to care for Earth. As bizarre as it may sound, States have no enforecable obligation under international law to protect the natural environment, either domestically or globally. They may choose to do so, but they are not legally required.
States are legal entities, therefore ‘persons’ with rights and responsibilities. The concept of state sovereignty gives the State exclusive rights, both internally and externally.
States have, for example, the right to control their own territories, and to exploit the natural resources within their boundaries, as they see fit. And the right to prevent other States from interfering with their ‘domestic affairs’. States have also responsibilities, for example, to not intentionally harm the territory of other states. And the responsibility to protect citizens from harm.
Fortunately, international law holds human rights in high esteem, so much so that States must respect and protect human rights and not just within their own territory.
One of the most important recent developments in international law has been the emergence of the Responsibility to Protect (R2P) principle. This requires States to uphold and protect human rights against States not willing or able to do so. As Ramesh Thakur shows in his blog (29 Nov 2019), R2P walks a fine line between state sovereignty and human rights and is often ignored, but it is unlikely to be discarded anytime soon.
Parallel to R2P and even more promising is the doctrine of sovereign States as trustees of humanity. Universal human rights are constitutional to international law, and a constraint upon state sovereignty. States must therefore act as trustees of human rights across national boundaries (Eyal Benvenisti). Anything less would, in fact, threaten the very promise of human rights.
The Trusteeship Sovereignty concept has great potential for meeting the two biggest threats of the 21st century: threats to human rights, and threats to the Earth system – our home.
Earth trusteeship is the legal response to the PM’s call for environmental responsibility. The ethics of guardianship are deeply embedded in Maori and other indigenous cultures, but they are also rooted in religious traditions and often referred to in contemporary socio-ecological texts. From a legal perspective, we can think of Earth trusteeship as an obligation of the State to protect the integrity of Earth’s ecological systems – including the atmosphere and oceans (climate system!). More than 25 international environmental agreements refer to the duty of States to cooperate in order to protect and restore the integrity of Earth’s ecological systems. What is missing is the willingness of States to take this duty of care seriously, and accept it as a legal obligation."