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Home Archive for category "International Environmental Law"

A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case

Published on January 6, 2020        Author:  and

 

 

The judgment of the Dutch Supreme Court in State of the Netherlands v Urgenda is a landmark for future climate change litigation. On the 20th of December 2019, the Supreme Court held that on the basis of the European Convention on Human Rights (ECHR) the Netherlands has a positive obligation to take measures for the prevention of climate change and that it has to reduce its greenhouse gas (GHG) emissions with at least 25% by the end of 2020, compared to 1990 levels. An unofficial translation of the full judgement will be published on the website of the Dutch judiciary after the 13th of January 2020.

The judgment is significant as it demonstrates how a court can determine responsibilities of an individual state, notwithstanding the fact that climate change is caused by a multiplicity of other actors who share responsibility for its harmful effects. Around the world, a flood of lawsuits has been initiated to establish legal responsibility for actors contributing to climate change. The Urgenda judgment, that has been heralded as the ‘strongest’ of all, makes clear that the fact the a state is only a minor contributor compared to many other actors, does not preclude its individual responsibility. The judgment contains important pointers that plaintiffs and courts can rely on in similar cases.

In this blogpost we briefly recap the procedure leading to the Supreme Court judgment and discuss three conclusions reached by the Supreme Court that will be of wider interest:

1) the ECHR imposed a positive obligation to take appropriate measures to prevent to climate change;

2) these measures should at least ensure that the Netherlands realizes a reduction of GHG emissions by 25%, compared to 1990, by the end of 2020; and

3) even though the Netherlands was only a minor contributor to climate change, it had an independent obligation to reduce emissions.

Recap of the proceedings

Central to the proceedings was the reduction target for developed nations of 25%-40% by 2020, compared to 1990 levels, originally identified as one scenario in the 2007 Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). The Netherlands had embraced this target in 2007, stating that it aimed to reduce Dutch emissions with 30% by 2020. Yet in 2011, the government indicated that it would not meet the target, instead aiming for 14-17% reduction.

In 2013, a Dutch NGO with a mission to contribute to sustainability and innovation called Urgenda (‘urgent agenda)’, initiated a lawsuit against the Dutch State with the aim to order the State to reduce Dutch GHG emissions by 40% at the end of the year 2020, or at least by a minimum of 25% in comparison the year 1990.

In the 2015 judgment of the Hague District Court, Urgenda prevailed. The District Court ordered the State to ‘limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, such that this volume will have been reduced by at least 25% at the end of 2020 compared to the level of the year 1990′. The District Court based this order on the doctrine of hazardous negligence, which is read into the provision on tort in the Dutch Civil Code: behaviour is inter alia considered tortious if it unnecessarily creates danger and thus is contrary to what ‘according to unwritten law is deemed fit in societal interrelations’ (Article 6:162). Contrary to Urgenda’s claim, the District Court did not ground its conclusion directly on human rights law, as it held that Urgenda could not invoke human rights provisions stemming from the ECHR (nor could it invoke the United Nations Convention against Climate Change (UNFCCC)). Read the rest of this entry…

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COP25 Negotiations Fail: Can Climate Change Litigation, Adjudication, and/or Arbitration Compel States to Act Faster to Implement Climate Obligations?

Published on December 19, 2019        Author: 

The failure of the 25th negotiating year by the UN Framework Convention on Climate Change’s (UNFCCC) Conference of Parties (COP25) held this month in Madrid to achieve the necessary global decisions to implement Article 6 of the Paris Agreement on the creation of an international carbon trading system points to some glaring structural – and not just political – deficits in the international system.  While accusations have been heaped on all sides against countries such as Brazil, India, and China (who held out for carryovers of around 4 billion of unsold certified emission reductions or CERS, which represent existing carbon credits under the Kyoto Protocol’s Clean Development Mechanism), Australia (who reportedly argued that carryover of its CERS would show it meets its carbon targets), and the United States (who reportedly argued for language under Article 8 of the Paris Agreement that would insulate the United States from any obligation to compensate for any climate -related loss and damage), no indications have been given on how to break the negotiations impasse well before the COP26 next year in Glasgow.  Only the European Union thus far has put forward bold policies and taken decisions to achieve climate-neutrality for its territory by 2050. This dismal outcome does lead me to doubt what the eminent environmental law scholar Professor Dan Bodansky strenuously argued back in 2016:

“From start to finish, the question of legal form or character was central to the Paris negotiations. The Paris Agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation. It contains a mix of mandatory and non-mandatory provisions relating to parties’ mitigation contributions, as well as to the other elements of the Durban Platform, including adaptation and finance. One cannot definitively say how much the legally binding character of the Paris Agreement matters. Making the agreement legally binding may provide a greater signal of commitment and greater assurance of com- pliance. But transparency, accountability and precision can also make a significant difference, and legal bindingness can be a double-edged sword if it leads States not to participate or to make less ambitious commitments. Thus, the issue of legal character, though important, is only one factor in assessing the significance of the Paris outcome.” (Italics added.)

Notwithstanding the tremendous global political mobilization galvanized by Greta Thunberg alongside the rise of climate change activism around the world, and the optimism that some in the environmental law community seems to place on the greater impact of transparency in the Paris Agreement to encourage State compliance (one I still shared back in 2015), this year-end 2019 I have less confidence in voluntary cooperative strategies alone. A November 2019 report led by the former Chair of the Intergovernmental Panel on Climate Change confirmed that most countries will not make their Paris Agreement targets:

“To achieve the Paris Agreement’s most ambitious goal of keeping global warming below 1.5 degree Celsius above pre-industrial levels requires reducing global greenhouse gas emissions (GHG) by 50 percent by 2030, and some of these pledges are unlikely to be achieved.

Of the 184 climate pledges, 36 were deemed sufficient (20 percent), 12 partially sufficient (6 percent), 8 partially insufficient (4 percent), and 128 insufficient (70 percent).

Because the climate pledges are voluntary, technicalities, loopholes, and conditions continue to postpone decisive global action to reduce emissions and address climate change.” (Emphasis and italics added.)

Under this reality, shouldn’t the ‘invisible college of international lawyers’ devote more efforts today towards reviving the blunt edge of climate change-based national, regional, or international litigation, adjudication, and arbitration towards reaching sufficiency of climate pledges for 70% of the world, and actual monitoring and enforcement of all climate pledges?  While some might see the proliferation of coercive legal enforcement as perhaps anathema to the deliberate design of the Paris Agreement, the last few years have witnessed a sharp rise in climate change-based domestic litigation; climate change-based petitions at human rights treaty bodies; a recent 2019 Philippine Constitutional Commission on Human Rights report concluding that the Carbon Majors (47 of the world’s biggest fossil fuel firms) could be held legally liable for violating human rights; and various opinions (see here, here, here, here, here, here, among many others) on how international arbitration could be used for climate change-based or climate change-related disputes, especially on challenging the adequacy or appropriateness of the multiple individual mitigation and adaptation policies and strategies of States and businesses and the impacts of those policies and strategies on populations.  There is clearly no shortage of international legal remedies being exhausted for climate change-related disputes, except for the most important one: getting States to act with despatch, negotiate in good faith, and to fulfill Paris Agreement targets sufficiently.  The reason often advanced is that this part of the Paris Agreement is not legally binding and thus cannot be subject of any legal enforcement anywhere.  But is it? While one can plausibly argue that the nationally determined contributions (NDCs) set by States pursuant to the Paris Agreement are not hard legal commitments (as rightly shown by Jorge Vinuales in this blog here, here, and here), as others have argued (here, here, and here) various other procedural obligations as to transparency, reporting, and accountability are legally binding. However, the absence of explicit legal sanction or punitive consequences in the text of the Paris Agreement treaty arguably operates to reinforce, embolden, and empower ‘holdouts’ in the COP negotiations who can take extreme positions to delay reaching decisions to implement the Paris Agreement.

At the very least, I would argue that, even within the hard and soft letter of the Paris Agreement, is interwoven an independent (customary) international legal obligation to negotiate in good faith that could be the substantive basis for incurring international or State responsibility. This obligation does NOT pertain to the specific realization of climate targets, but rather, refers to the good faith obligation of States to ensure that negotiations to implement the Paris Agreement remain meaningful.  This would squarely question whether the holdout positions on maintaining carryover credits under the Kyoto Protocol’s Clean Development Mechanism would still keep negotiations meaningful to realize the international carbon trading system under Article 6 of the Paris Agreement.  In this post, I evaluate the Paris Agreement text (especially Article 6) alongside the objects and purposes of the Agreement and various embedded obligations within the Agreement, against the International Court of Justice’s recent test for determining the existence of an international legal obligation to negotiate as articulated in its 2018 Judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile):

“…for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.” (2018 Judgment, para. 91. Italics added.)

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Renewable energy incentives: reconciling investment, EU State aid and climate change law

Published on December 18, 2019        Author: 

 

Domestic incentives for renewable energy production

To combat climate change, several States have created so-called ‘renewable energy incentivization schemes’ because they feared that private investors may otherwise not be willing to invest in this industry. Compared to other sectors, renewable energy investment usually requires significant upfront capital investment, while returns may be unsure and take a longer period to materialise.

Renewable energy incentivization schemes typically provide for a secure power price, buy-out options, government-supported loans, etc. By offering feed-in tariffs, for example, the host State commits to buying the generated green power for a certain period of time (25 years or even longer) at a fixed rate, regardless of the real market price.

Some States seem to have been unprepared for the success of these incentivisation schemes and have difficulties in fulfilling the financial aspects of their own schemes. Combined with the budgetary problems caused by the financial crisis and/or a reprimand from the European Commission, which was of the opinion that some of these stimuli formed prohibited subsidies (State aid) under EU law, States have amended or terminated their programmes. Some have even sought to reclaim the sums already transferred to investors. Read the rest of this entry…

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Human Rights and the Environment: The UN Human Rights Committee Affirms the Duty to Protect

Published on September 9, 2019        Author: 

Recently, the Human Rights Committee published its views in the case Portillo Cáceres v. Paraguay (currently available only in Spanish). In this landmark decision, the Committee dealt, for the first time, with the question of the States’ duty to protect individuals from environmental degradation under articles 6 (right to life) and 17 (protection of the family) of the International Covenant on Civil and Political Rights (ICCPR). In doing so, the Committee followed the lead of several regional human rights institutions. The decision might help in strengthening the recognition of environmental protection as an element of human rights protection.

A brief summary of the case: The Communication was brought to the Committee against Paraguay by two peasant families who had been poisoned by high amounts of pesticide and insecticides used by neighbouring industrial farms. Whereas legal regulations existed that prohibited this conduct, no significant steps had been taken by the State to enforce the existing laws. As a result of the poisoning, one family member died, the others were hospitalized. Furthermore, the families suffered a loss of fruit trees, the death of various farm animals and severe crop damage. The families claimed that the State had failed in its duty to provide protection inasmuch as it has not exercised due diligence.

Protection of the Environment as a Human Right

Questions regarding the role of environmental protection in the context of human rights protection have recently been brought before several human rights mechanisms. Recently, the Inter-American Court of Human Rights (IACHR) has had the chance to define the role of environmental protection in its system (see this advisory opinion). It has not only found that there is an autonomous right to a healthy environment, but also stated that any right can be affected by environmental harm (paras. 63, 64). Read the rest of this entry…

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Comments on Coastal and Flag State Jurisdiction in the M/T “San Padre Pio” Dispute

Published on September 3, 2019        Author: 

The M/T “San Padre Pio” dispute between Switzerland and Nigeria arose following the interception and arrest by the Nigerian navy of the M/T “San Padre Pio” – a Swiss flagged tanker – while this was engaged in one of several Ship-to-Ship (STS) transfers of gasoil in the vicinity of the Odudu Oil Field within Nigeria’s Exclusive Economic Zone (EEZ).  Although the facts are not entirely clear at this stage, it appears that the M/T “San Padre Pio” transferred gasoil not directly to the Odudu Terminal (for which the gasoil was ultimately intended) but to other transport vessels by way of STS transfers.  These other transport vessels then transported the fuel a short distance to the Odudu Oil Field where they made direct transfers to installations located therein.  Switzerland contends that the “San Padre Pio” was supplying gasoil to Anosyke, the Nigerian company with which it had a supply contract.  The Odudu Oil Field is operated by Total.

Following a request for provisional measures submitted by Switzerland to the International Tribunal for the Law of the Sea (ITLOS) under Article 290(5) of the Law of the Sea Convention (LOSC), on 6 July 2019 ITLOS ordered Nigeria to release the M/T “San Padre Pio”, its cargo, Master and three officers (Order, para 146).  This provisional measures order was insightfully examined by Yurika Ishii here.  The purpose of this post is to examine Swiss and Nigerian arguments about coastal and flag State jurisdiction in anticipation of the Annex VII arbitral tribunal’s decision on the substance of the dispute.  The forthcoming analysis will be undertaken in view of the facts as presently known and in light of the most relevant Law of the Sea Convention (LOSC) provisions. 

In his Separate Opinion, Judge ad hoc Murphy considers that it is “difficult to assess whether the situation [in the “San Padre Pio” dispute] is best approached as simply a STS transfer, which normally is understood as a transfer of cargo between two seagoing vessels, or is best approached as offshore bunkering, which normally is understood as the replenishment by one vessel of a second vessel’s fuel bunkers with fuel intended for the operation of the second vessel’s engines”.  Since the M/T “San Padre Pio” never provided gasoil directly to the oil field installations or to vessels for use as bunker fuel in their own propulsion, this post will consider the type of activities which the M/T “San Padre Pio” was engaged in as STS transfers, not as bunkering operations. Read the rest of this entry…

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The Global Pact for the Environment – What Would the Right and the Duty to Environmental Protection Change for EU law?

Published on February 21, 2019        Author:  and

From the perspective of international environmental law, there is already a lively debate about the proposed Global Pact for the Environment, including this blog. The contributions appear more limited on the topic of the Pact’s potential impact on EU environmental law, and it is on this issue we are particularly interested. In this post, we will discuss the right and the duty to environmental protection. In our opinion, both would introduce new elements into EU environmental law, but the changes would not be radical. Accordingly, ratification by the EU should not face overwhelming obstacles. Our remarks will be based on the preliminary draft of a Global Pact for the Environment, as proposed by the Group of Experts under the leadership of Mr. Fabius.

Under Article 1 every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment.

Article 2 provides that every State or international institution, every person, natural or legal, public or private, has the duty to take care of the environment. To this end, everyone contributes at their own levels to the conservation, protection and restoration of the integrity of the Earth’s ecosystem. Read the rest of this entry…

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Canute’s Kingdoms: Can small island states legislate against their own disappearance?

Published on February 20, 2019        Author: 

It was recently drawn to my attention that Tuvalu and Kiribati have in recent years passed legislation, following a relatively common scheme, that removes reference to the low tide line as the baseline for measuring maritime zones and replaces it with a system of fixed geographic coordinates. (The Marshall Islands has taken a somewhat similar approach.) On its face, this may constitute a claim that their maritime baselines are permanently fixed. That is, they will not retreat or be redrawn with rising sea levels.

This might seem a small matter in the range of legal issues implicated by climate change – it is not.

As every public international lawyer probably recalls, at least after the South China Sea arbitration, an island (within the meaning of article 121 of the UN Convention on the Law of the Sea) generates a full suite of maritime zones but must be more than a mere rock incapable of sustaining human habitation or a maritime feature which is only above water at low tide. Imagine your national territory is composed of a series of islands, some of them quite small but generating extensive maritime zones. Long before you risk becoming completely “de-territorialised” by rising sea levels you might lose much of your national livelihood if islands previously generating exclusive economic zones become mere low tide elevations.

So the question becomes, can a state freeze the baselines from which its maritime zones are projected? Read the rest of this entry…

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COP 24 and Climate Finance: A Stepping Stone or a Blurred Line?

Published on January 23, 2019        Author: 

In December 2018, the 24th Conference of the Parties (COP 24) to the United Nations Framework Convention on Climate Change (UNFCCC), took place in Katowice, Poland. The main objective of those negotiations was to finalize the so called ‘Paris Rulebook’ [the Paris Agreement Work Programme (PAWP)], which would constitute a set of rules to implement and operationalize the Paris Agreement. The issues at stakes varied from mitigation, adaptation and loss and damage, to more technical issues, such as transparency, climate finance and carbon market mechanisms under the Paris Agreement.

This post will focus on the progress made on the issue of climate finance based on an analysis of the COP 24 decision on the relevant issues. I begin by reiterating the importance of the findings presented by the latest reports of the Intergovernmental Panel on Climate Change (IPCC) and the Standing Committee on Climate Finance (SCF) under the UNFCCC. The SCF report on the biennial climate finance assessment highlighted the current methodological challenges concerning the reporting and verification of public and private climate finance, referring to the existence of uncertainties and gaps regarding the collection of climate finance data. Some of the SCF recommendations to the COP include i) enhancing the transparency, consistency and comparability of data on climate finance, ii) encouraging Parties providing climate finance to enhance their reporting of climate finance provided to developing country Parties and iii) encouraging developing country Parties that provide support to report information on climate finance provided to other developing country Parties.

One of the most ambiguous, but at the same time significant issues of the COP 24, was that of accounting and reporting on climate finance. The Paris Agreement contains two main provisions on financial flows, namely: article 2.1(c) providing for a general framework of making financial flows climate resilient; as article 9, which, apart from the general climate finance obligation, also provides for the ex-post and ex-ante finance transparency. The operationalization of the latter has been one of the main tasks of COP 24. The formal COP 24 agenda provided for the negotiation of the following matters relating to climate finance:

  1. long-term climate finance,
  2. matters relating to the SCF,
  3. the Green Climate Fund (GCF),
  4. the Global Environment Facility (GEF) and
  5. the identification of the information to be provided by Parties in accordance with Article 9, paragraph 5, of the Paris Agreement.

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Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part II)

Published on December 29, 2018        Author: 

The potential role of the planetary boundary for biosphere integrity

The planetary boundary framework was originally developed to identify the key global processes that are essential for regulating the functioning of the Earth System and create what are effectively safe ‘buffer zones’ that might prevent humanity from crossing dangerous biophysical thresholds or tipping points. In its current version, the framework describes nine such boundaries, ranging from climate change to atmospheric aerosol loading and including freshwater use, land-use change, stratospheric ozone depletion, introduction of novel entities to the environment, ocean acidification, biogeochemical flows and, crucially, biosphere integrity. The fact that the boundaries represent the limits of what the authors call the ‘safe operating space’ for human development on a changing planet has attracted immediate interest from political scientists working on Earth System governance, and some legal scholars have progressively started to consider the concept as potentially useful for international environmental law as well.

Ever since the first elaboration of the nine planetary boundaries, the very possibility of identifying a global boundary for biosphere integrity resulting from changes in regional and local biodiversity has appeared as one of the most contentious aspects of the framework. As a result of intensive discussions to which various research communities contributed, the description contained in the original planetary boundaries paper was in fact updated in 2015,in order to capture the two key roles of the biosphere in the Earth System, and namely: (a) the importance of genetic diversity in maintaining and building its resilience (i.e. through the use of global extinction rates); and (b) the contribution of organisms’ functional traits to Earth System functioning (i.e. through the so-called Biodiversity Intactness Index). In doing so, the planetary boundary framework was also expanded to recognize the importance of sub-global boundaries that must align with the global boundary definition for biosphere integrity, owing to the fact that the ideal unit of analysis for changes in elements of biodiversity is usually situated at the level of biomes and ecosystems.

From this perspective, and subject to further scientific advancements and new data becoming available, a planetary boundary for biosphere integrity could potentially represent a very useful tool for international biodiversity law. On the one hand, because the national allocation of the planetary ‘safe operating space’ would recognize and make explicit the above-mentioned link between a global boundary and the regional, national and sub-national operating scales at which biodiversity loss occurs. On the other, and as a consequence, because the incorporation in international biodiversity law of a global boundary that might be quantifiable through critical values for one or more control variables could in theory enable changes to biosphere integrity to be used as an indicator of State responsibility, providing a powerful empirical benchmark against which to assess the respect of legal obligations relating to biodiversity (or, at the very least, a set of more precise, science-based objectives and targets that it would be more difficult for States to ignore).

The nine planetary boundaries and the status of their control variables. Source: Steffen et al. (2015)

For the purpose of the present analysis, it is less important what the control variables should be, and it should indeed be noted that identifying suitable ones for biosphere integrity remains a daunting and still hotly debated task. What is crucial is that the concept of a measurable planetary boundary for biosphere integrity clearly suggests that the related biophysical limits, once incorporated in international law, could play an important role in mitigating the procedural and/or non-enforceable nature of most international obligations relating to biodiversity within national jurisdiction (for example, the requirement to develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity set in Article 6(a) of the CBD, or the obligations for in-situ conservation listed in Article 8).

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Goal-setting in an era of mass extinction: a planetary boundary for biosphere integrity in international biodiversity law? (Part I)

Published on December 29, 2018        Author: 

Introduction

The recent publication of the UN Secretary-General’s Report on ‘Gaps in International Environmental Law’ comes at a particularly critical juncture for the protection of the world’s biodiversity. The Report was released just days after the conclusion of the 14thConference of the Parties to the Convention on Biological Diversity (CBD), which has expressed deep concern about countries’ lack of progress in the achievement of the Convention’s Aichi Biodiversity Targets by 2020. Furthermore, it closely follows a number of other urgent calls for action, including those contained in WWF’s Living Planet Report and in the four bleak regional assessments conducted by the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES).

The widely anticipated failure of the CBD’s Strategic Plan for Biodiversity 2011-2020 has been used as a starting point by some to advocate for a renewed ‘global deal for nature’. The Gaps Report itself, beyond its endorsement of a future Global Pact for the Environment, is especially scathing in its ‘indictment’ of biodiversity-related instruments in international law. The Report builds on years of scholarly debates in this field and focuses on, inter alia, the absence of a coherent structure of international biodiversity law, the lack of binding commitments and poor national implementation of voluntary ones, inadequate integration of biodiversity into other law- and policy-making arenas, insufficient use of ecosystem-based approaches to conservation, and lack of attention paid to interconnectedness of ecosystems within and outside protected areas.

Recognizing the need for innovative legal instruments that can capture the complexity of ecological relationships and mitigate the pervasiveness of anthropogenic interference on the Earth’s biodiversity, the international community has indeed embarked on the preparation of a post-2020 global biodiversity framework, as well as on the negotiation of a new treaty applying to biodiversity beyond national jurisdiction. What is arguably missing in both the Gaps Report and these wider intergovernmental efforts, however, is a thorough analysis of the underlying reasons that have prevented existing international biodiversity law from being effective in curbing global extinction rates and unsustainable patterns of ecosystem destruction and degradation, despite decades of legal developments and a robust apparatus of subsidiary bodies tasked with providing scientific and technical advice. Without a similar analysis, the risk of future biodiversity regimes falling back on business-as-usual approaches will probably remain very high.

In this post, I first describe one particularly problematic aspect of international biodiversity law, namely the difficulty of identifying substantive obligations (i.e. obligations of result) applying to biodiversity located within national jurisdiction despite increasing awareness about the interconnectedness of ecological processes occurring at different spatial scales. Secondly, I suggest the potential of the planetary boundaries framework first developed in 2009 by Rockström and others to provide quantifiable measures of ‘biosphere integrity’ that can help define these international obligations. Finally, I propose four ways in which international biodiversity law (including its institutional arrangements) could be used to incorporate a planetary boundary for biosphere integrity.

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