On the basis of my work in three projects (co-chairing UNEP’s Global Environment Outlook-6, co-chairing Future Earth’s Earth Commission, and my Advanced Grant on Climate Change and Fossil Fuels), I have three critical messages with respect to environmental justice and law. My perspective on sustainability is influenced by my understanding that we are fast approaching or have crossed planetary boundaries and this implies that humans worldwide have to live in a world of limited resources and sinks. This inevitably raises the question of how such resources and sinks will be shared worldwide. My assumption is that we have a greater chance of living within planetary boundaries when we are willing to share the underlying resources equitably. If we are not willing to share these resources in a just manner, there is no way to convince others to reduce their use of fossil fuels or deforestation if we are ourselves unwilling to take on a fair burden. International law needs to rise up to the challenges of the Anthropocene.
My key messages are:
First, as we approach planetary boundaries without yet having met the basic needs of people world-wide, we see the injustice that those who cause the environmental problems or use the most ecological resources are not necessarily those who are exposed to the irreversible and existential risks of these problems. This division between those who cause the problem and those who suffer in the front lines also affects the politics of decision making; as those who cause the problem have currently more power than the rest to influence politics. This has led to a situation where the ‘no significant harm’ principle in international law has been increasingly underemphasized and there is a return to full permanent sovereignty in the 2030 Agenda. This is all the more problematic as significant harm to human health and wellbeing is caused by environmental degradation and global governance systems are unable to keep up with the pace of degradation. On the other hand, even though human rights instruments, the Millennium Development Goals and the 2030 Agenda emphasize meeting basic needs, the instruments used for meeting these (e.g. cost-recovery based provision) fail to account for the fact that the price of scarce resources keeps going up and makes these basic needs unaffordable for the poor; and for the fact that environmental degradation has reduced the ability of the poor to meet their own water, food and energy needs, but has also affected their health. Thus, there is urgent need for developing a planetary justice narrative.
Second, our planetary justice narrative is built up of a number of different components. First, we argue that conservative or incremental forms of justice will be inadequate to enable living within planetary boundaries, and we need more ideal or transformative forms of justice. Second, such justice must include intragenerational, intergenerational, international/intercommunity, intersectional and interspecies justice. Third, it must be embedded in recognition, epistemic and procedural justice. Fourth, in substantive terms it needs to focus on ends (planetary targets) and means (planetary transformation). Planetary targets must try to avoid significant harm to humans and must address the issue of meeting human needs. Planetary transformation may need to develop instruments to address the underlying causes of degradation (e.g. the pursuit of GDP growth, consumption patterns), and focus on access and allocation. Access aims at meeting basic needs (sufficientarian justice) and creating upper limits (limitarian justice); and allocation aims at reducing the allocation of risk/harm through a variety of pre and post harm instruments; allocation of resources and allocation of responsibilities. For example, the need for GDP growth has led actors to convert more and more ecological goods and services into commodities for sale and purchase. This generates income for some, while reducing the functioning of the Earth’s system for others.
Third, whether we look at the energy transition, or water redistribution we see a clash between public international law and private law (e.g. contracts) and administrative rights granted e.g. under permits. This stands in the way of reorganizing society and redistributing resources. At the global level, we may need to have a global constitution that can prioritize public issues over private ones; and at national level we may need to be able to reconcile the need for certainty (e.g. through long term permits) with the need for flexibility (e.g. taking changing water availability into account). Property rights to land, water and resources have been institutionalized by law in such a manner that both actual property rights and quasi property rights stand in the way of the global transformation that is needed.
I conclude that international law is moving backwards in the area of the no harm principle; it is slowly moving forward through the recognition of basic access rights of humans in the 17 Goals in the soft law document – the 2030 Agenda; but it is inadequately addressing the issue of how to share resources and sinks globally. In the meanwhile, ownership of resources is being institutionalized in long term contracts and property rights systems combined with the rise in market mechanisms. This trend will stand in the way of the global transformation needed for living within planetary boundaries.
 Gupta, J., J. Scholtens, L. Perch, I. Dankelman, J. Seager, F. Sánder, M. Stanley-Jones and I. Kempf (2020). Re-imagining DPSIR from an equity and inclusive development perspective, Sustainability Science. 15, pages503–520, https://doi.org/10.1007/s11625-019-00708-6.
 Gupta, J. and S. Schmeier (2020). Future proofing the principle of no significant harm in water and environmental law, International Environmental Agreements: Politics, Law and Economics, 20(4):731-747.
 Gupta, J., F. Hurley, A.M. Grobicki, T. Keating, P. Stoett, E. Baker, A. Guhl, J. Davies and P. Ekins (2019). Communicating the health of the planet and its links to human health. Lancet Planetary Health 2019 (3): e204-206. (and supplementary materials).
 Gupta, J. and U. Ceylan (2020). The Global Environment Outlook and Its Implications for International Law: Is Law Increasingly Falling Behind, in Giulana Ziccardi Capaldo (ed.), The Global Community Yearbook of International Law and Jurisprudence, Oxford University Press; 49-82.
 Gupta, J., A. Gupta, and C. Vegelin (2022). Equity, Justice and the SDGs: Lessons Learnt from two decades of INEA scholarship, International Environmental Agreements: Politics, Law and Economics, in press.
 Gupta, J., D. Liverman, X. Bai, et al. (2021). Reconciling safe planetary targets and planetary justice: Why should social scientists engage with planetary targets? Earth System Governance, https://doi.org/10.1016/j.esg.2021.1000122.
 Gupta, J. and L. Lebel (2020). Access and Allocation in Earth System Governance: Lessons learnt in the Context of the Sustainable Development Goals, INEA, 20(2), 393-410.
 Gupta et al. (…). Conceptualizing Transformative Planetary Justice, PNAS, submitted November 2021.
(Photo: Eutah Mizushima)