International Environmental Law and Complex Systems Theory

1. International Environmental Law and Complex Systems Theory Rakhyun (Rak) Kim PhD Scholar (MSc, MEnvLS) The Fenner School of Environment and Society The Australian National University rakhyun.kim@anu.edu.au Presented at the National Graduate Law Conference ANU College of Law, 8-9 July 2010

2. what is complexity? “I think the next century will be the century of complexity.” Stephen Hawking, Jan 2000 • Examples of complex systems • Environment • Society • Economy • Internet • … • Law (legal system) Santa Fe Institute Resilience Alliance MIT System Dynamics Group John Holland, Hidden Order: How Adaptation Builds Complexity (1995). Stuart Kauffman, At Home in the Universe (1995). W. Brian Arthur, Complexity and the Economy, 284 Science 107 (1999).

3. complex system models • Forest-fire http://ccl.northwestern.edu/netlogo/models/Fire • Self-organized criticality • Threshold effects • Flockinghttp://www.youtube.com/watch?v=XH-groCeKbE • Synchronicity • “Micro motives, macro behaviour” From local interactions by simple deterministic rules, complex but orderly patterns/behaviour emerge B. Drossel & F. Schwabl, Self-organized Critical Forest-Fire Model, 69 Physics Review Letters 1629 (1992); P. Bak, K. Chen, & C. Tang, A Forest-fire Model and Some Thoughts on Turbulence, 147 Physics Letters A 297 (1990); Toni Feder, Statistical Physics is for the Birds, 60 Physics Today 28 (2007).

4. Earth = complex adaptive system Daisyworld • Self-organization • No conductor; organization comes from bottom-up • Emergence • e.g., the climate • “The whole is greater than the sum of its parts.” • Nonlinearity • Interactions through nonlinear feedback loops • Changes = unpredictable, irreversible, abrupt • “coherence under change” • Adaptive and resilient James E. Lovelock, Gaia: A New Look at Life on Earth (1979); Per Bak, How Nature Works: The Science of Self-Organised Criticality (1996); John H. Holland, Emergence: From Chaos to Order (1998); Simon A. Levin, Fragile Dominion: Complexity and the Commons (1999); Brian Walker & David Salt, Resilience Thinking: Sustaining Ecosystems and People in a Changing World (2006); Will Steffen, et al., Global Change and the Earth System: A Planet Under Pressure (2004); Oran R. Young & Will Steffen, The Earth System: Sustaining Planetary Life-Support Systems, in Principles of Ecosystem Stewardship: Resilience-Based Natural Resource Management in a Changing World (F. Stuart Chapin III, et al. eds., 2009)

5. implications on the design of environmental law • If subject matter = CAS, shouldn’t law be designed around the complex adaptive systems model? • “Fighting complexity with complexity” (Duit, et al.); “Harnessing complexity” (Axelrod & Cohen) • a system of governance equal in complexity to the problems that need to be addressed (Najam, et al.); cleaning up the environment by making a mess of environmental law (Ruhl) • Institutional diversity, redundancy, polycentricity, etc. (Ostrom, etc.)  Ecologically inspired law system J.B. Ruhl, Law’s Complexity: A Primer, 24 Georgia State University Law Review 885 (2008); J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean Up the Environment by Making a mess of Environmental Law, 34 Houston Law Review 933 (1997); Adil Najam, et al., The Emergent “System” of Global Environmental Governance, 4 Global Environmental Politics 23 (2004); Gerald Andrews Emison, The Potential for Unconventional Progress: Complex Adaptive Systems and Environmental Quality Policy, 7 Duke Environmental Law & Policy Forum 167 (1996); Jonas Ebbesson, The Rule of Law in Governance of Complex Socio-Ecological Changes, 20 Global Environmental Change 414 (2010); Andreas Duit, et al., Governance, Complexity, and Resilience, 20 Global Environmental Change 363 (2010); Victor Galaz, et al., The Problem of Fit among Biophysical Systems, Environmental and Resource Regimes, and Broader Governance Systems: Insights and Emerging Challenges, in Institutions and Environmental Change: Principal Findings, Applications, and Research Frontiers (Oran R. Young, et al., eds., 2008); Andreas Duit & Victor Galaz, Governance and Complexity – Emerging Issues for Governance Theory, 21 Governance 311 (2008); Thomas Dietz, et al., The Struggle to Govern the Commons, 302 Science 1907 (2003); Geert Teisman, et al., eds., Managing Complex Governance Systems: Dynamics, Self-Organization and Coevolution in Public Investments (2009); Robert Axelrod & Michael D. Cohen, Harnessing Complexity: Organizational Implications of a Scientific Frontier (1999); Elinor Ostrom, et al., Going Beyond Panaceas, 104 Proceedings of the National Academy of Sciences 15176 (2007); Elinor Ostrom, A General Framework for Analyzing Sustainability of Social-Ecological Systems, 325 Science 419 (2009); Bobbi Low, et al., Redundancy and Diversity: Do they Influence Optimal Management?, in Navigating Social-Ecological Systems: Building Resilience for Complexity and Change(Fikret Berkes, et al. eds., 2003); Elinor Ostrom, Understanding Institutional Diversity(2005); Arild Underdal, Complexity and Challenges of Long-term Environmental Governance, 20 Global Environmental Change 386 (2010).

6. international environmental law • IEL ≈ IEAs • symptom-specific, ad hoc, autonomous • “throwing new laws of the problems that bubble to the system’s surface” • IEL is failing to pick up systemic issues of unsustainable development • Failing to control underlying sources from which environmental degradation emerges • Pathogenic predict-and-command-and-control approach • e.g., we assume that we can predict the climate system including tipping points and even control it (i.e., geoengineering) Brian Walker, et al., Looming Global-Scale Failures and Missing Institutions, 325 Science 1345 (2009); Mark Charlesworth & Chukwumerije Okereke, Policy Responses to Rapid Climate Change: An Epistemological Critique of Dominant Approaches, 20 Global Environmental Change 121 (2009).

7. interlinked planetary boundaries • Earth’s sub-systems and processes are tightly coupled in nonlinear interrelationships • A continuum of laws that better reflects the laws of nature is needed • The behaviour of a complex system (IEL) cannot be optimised by optimising the behaviour of its parts (MEAs) taken separately • Cross-system interactions must be taken into account when designing law • What structural configuration of the MEA system would best enable this? Johan Rockstrom, et al., A Safe Operating Space for Humanity, 461 Nature 472 (2009); Nicholas A. Robinson, Challenges Confronting the Progressive Development of a Second Generation of Environmental Laws, in Towards a "Second Generation" in Environmental Laws in the Asian and Pacific Region: Select Trends (Lin-Heng Lye & Maria Socorro Z. Manguiat eds., 2003).

8. beyond (legal) reductionism “We cannot solve problems by using the same kind of thinking we used when we created them.”Albert Einstein • Reductionism, linearism, predictivism, “ad hoc-ism” • Systems (or ecological) thinking to replace reductionist thinking • System design problem • “Solutions” (e.g., sectoral MEAs) lead to new problems; it is a systems problem • Any action taken in a complex system will produce unexpected and undesired outcomes (broader regime consequences) • Focus on the underlying structure that determine systems behaviour Richard Gallagher & Tim Appenzeller, Beyond Reductionism, 284 Science 79 (1999); J.B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: A Wake-Up Call for Legal Reductionism and the Modern Administrative State, 45 Duke Law Journal 849 (1996); J.B. Ruhl & Harold J. Ruhl, Jr., The Arrow of the Law in Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society, 30 U.C. Davis Law Review 405 (1997); Julian Webb, Law, Ethics, and Complexity: Complexity Theory & the Normative Reconstruction of Law, 52 Cleveland State Law Review 227 (2005); Arild Underdal & Oran R. Young, eds., Regime Consequences: Methodological Challenges and Research Strategies (2004).

9. tools for studying complex systems • Toolbox used in tackling complex systems • Nonlinear dynamics • Statistical physics • Network theory • Qualitative and case-study based approaches An example of studying law as a CAS: “bankruptcy system content may self-organize according to some complex deterministic dynamics” L.A.N. Amaral & J.M. Ottino, Complex Networks: Augmenting the Framework for the Study of Complex Systems, 38 European Physical Journal B 147 (2004);Bernard Trujillo, Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases, 53 UCLA Law Review 357 (2005); Bernard Trujillo, Self-Organizing Legal Systems: Precedent and Variation in Bankruptcy, Utah Law Review 483,  (2004)

10. computational legal studies • Application of the new science of networks to law • Reveals the hidden network structure of the legal system • Provides a mathematical representation of the object US Code citation network Network of US Supreme Court abortion decisions Paul Ohm, Computer Programming and the Law: A New Research Agenda, 54 Villanova Law Review 117 (2009); Thomas A. Smith, The Web of Law, 44 San Diego Law Review 310 (2007); David Lazer, et al., Computational Social Science, 323 Science 721 (2009); David G. Post & Michael B. Eisen, How Long is the Coastline of the Law? Thoughts on the Fractal Nature of Legal Systems, 29 Journal of Legal Studies 545 (2000); James H. Fowler, et al., Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court, 15 Political Analysis 324 (2007); Daniel Katz, et al.,Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, 60 J. of LegalEduc. _ (2011) available at http://ssrn.com/author=627779; Daniel Katz & Derek Stafford, Hustle and Flow: A Social Network Analysis of the American FederalJudiciary, 72 Ohio State L. J. _ (2010) available at http://ssrn.com/author=627779; Frank Cross, Thomas A. Smith & Antonio Tomarchio, The Reagan Revolution in the Network ofLaw, 57 Emory Law Journal 1227 (2008); James Fowler & Sangick Jeon, The Authority of Supreme Court Precedent, 30 Soc. Net. 16 (2008); Elizabeth Leicht, et al., Large-Scale Structure ofTime Evolving Citation Networks, 59 European Physics Journal B 75 (2007); Michael J. Bommarito II & Daniel M. Katz, A Mathematical Approach to Study the United States Code, 389 Physica A _ [arXiv:1003.4146v1]; Michael J. Bommarito II & Daniel Martin Katz, Properties of the United States Code Citation Network, _ Physical Journal B _ [arXiv:0911.1751v3].

11. a complex network approach to the MEA system “MEAs should be placed in such a decentralized and denselynetworked system, and reform options for more effective environmentalgovernance should be considered in such a context. The strengths of theMEA system, mostly the same as the very strengths of a decentralizedsystem, should be preserved and further enhanced, while weaknessesshould be resolved.” (Kanie) • Mapping the complete MEA system and uncover its network topology • Conducting network analyses on the MEA system to characterise its network properties • Quantifying the fitness between the MEA system and the Earth system (e.g., planetary boundaries) • Asking how complex, resilient, and adaptive the MEA system is • Asking how to improve the effectiveness of the MEA system Norichika Kanie, Governance with Multilateral Environmental Agreements: A Healthy or Ill-equipped Fragmentation?, in Global Environmental Governance: Perspectives on the Current Debate (Lydia Swart & Estelle Perry eds., 2007).

12. IEA Databases • IEA Database (Mitchell) • 500~ MEAs, 1000~ incl. protocols and amendments; 150~ MEAs coded • 1500~ BEAs • 250~ other types • ECOLEX (IUCN, FAO, UNEP) • 2000~ MEAs &BEAs incl. protocols and amendments • ENTRI (Columbia Uni.) • 500~ MEAs incl. protocols and amendments

13. Treaty regulating the Status of Spitsbergen and conferring the Sovereignty on Norway Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare Convention for the Regulation of Whaling Convention on International Civil Aviation Annex 16 - Aircraft Noise Constitution of the Food and Agriculture Organization of the United Nations International Convention for the Regulation of Whaling Convention on the International Maritime Organization Statutes of the International Union for Conservation of Nature and Natural Resources (as revised in 1996) Constitution of the International Rice Commission Convention on Road Traffic International Plant Protection Convention International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended in 1962 and 1969 Protocol to the International Convention for the Regulation of Whaling International Convention relating to the Limitation of the Liability of Owners of Sea-going Ships Convention on the Continental Shelf Convention on the High Seas Convention on the Territorial Sea and the Contiguous Zone Convention on Fishing and Conservation of the Living Resources of the High Seas Convention placing the International Poplar Commission within the Framework of FAO International Convention for the Safety of Life at Sea Convention on Civil Liability for Nuclear Damage Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water Convention for the International Council for the Exploration of the Sea Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space Treaty on the Non-Proliferation of Nuclear Weapons International Convention on Civil Liability for Oil Pollution Damage International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties Convention on Wetlands of International Importance especially as Waterfowl Habitat Treaty on the Prohibition of the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material Convention on International Liability for Damage caused by Space Objects Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction Convention on the International Regulations for Preventing Collisions at Sea Convention concerning the Protection of the World Cultural and Natural Heritage International Convention for Safe Containers Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Convention on International Trade in Endangered Species of Wild Fauna and Flora Application of Safeguards on Implementation of Article III (1) and (4) of the Treaty on the Non-Proliferation of Nuclear Weapons International Convention for the Prevention of Pollution from Ships (MARPOL) - Annex V (Optional) : Garbage Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil International Convention for the Safety of Life at Sea (SOLAS) Convention on Registration of Objects Launched into Outer Space Protocol to the International Convention on the Establishment of an International Fund of Compensation for Oil Pollution Damage Convention on Limitation of Liability for Maritime Claims Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques International Convention for the Prevention of Pollution from Ships - Annex IV : Sewage International Convention for the Prevention of Pollution from Ships (MARPOL) as modified by the Protocol of 1978 Convention of the Carriage of Goods by Sea International Convention for the Protection of New Varieties of Plants as amended on 23.10.1978 International Convention for the Prevention of Pollution from Ships, 1973 - Annex III : Hazardous substances carried in packaged form Convention on the Conservation of Migratory Species of Wild Animals Convention on the Physical Protection of Nuclear Material Agreement governing the Activities of States on the Moon and other Celestial Bodies United Nations Convention on the Law of the Sea Vienna Convention for the Protection of the Ozone Layer Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency Convention on Early Notification of a Nuclear Accident Protocol on Substances that Deplete the Ozone Layer Joint Protocol relating to the application of the Vienna Convention and the Paris Convention Protocol relating to the International Convention for the Safety of Life at Sea Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal International Convention on Salvage Convention concerning Indigenous and Tribal Peoples in Independent Countries Convention concerning Safety in the use of Chemicals at Work International Convention on Oil Pollution Preparedness, Response and Co-operation International Convention for the Protection of New Varieties of Plants (consolidated version) United Nations Framework Convention on Climate Change Convention on Biological Diversity Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas International Tropical Timber Agreement Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS) Convention on Nuclear Safety International Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particulary in Africa Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction Kyoto Protocol to the United Nations Framework Convention on Climate Change Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade Cartagena Protocol on Biosafety to the Convention on Biological Diversity Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 Stockholm Convention on Persistent Organic Pollutants Agreement on the Conservation of Albatrosses and Petrels International Convention on the Control of Harmful Anti-Fouling Systems On Ships International Treaty on Plant Genetic Resources for Food and Agriculture Protocol of 2003 to the International Convention on the Establishment of an international Fund for Compensation for Oil Pollution Damage, 1992 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context Protocol on Pollutant Release and Transfer Registers to the Convention on Access to Information, Public-Participation in Decision-Making and Access to Justice in Environmental Matters mapping the IEA network • Bipartite networks (collaborative similarity) • States – MEAs • MEAs – Earth System • MEA network • Membership • Clusters (e.g., JLG, BLG) • Citation in the treaty texts or decisions; MOUs • Integrative mechanisms • Overlapping issue area (e.g., forests) • Types of interaction: • synergistic, disruptive, neutral • Unidirectional, bidirectional

14. UNFCCC and CBD • Is the UNFCCC/CBD approach nested within the IEL system is capable of adapting to and addressing the interactive effects of climate change and the loss of biodiversity? Or is the IEL system inherently flawed by design? • UNFCCC/CBD, as a coevolving system, coevolves with the climate and social-ecological systems it aims to regulate • Mapping interactions • System dynamics (stock and flow diagrams) • Bipartite network between sub-treaty bodies, decisions, submissions, etc.

15. IEL and complexity • For global ecological integrity, the design of IEL needs to reflect the nature of the tightly coupled, nonlinear interrelationships among sub-systems and processes in the Earth System • Need to search for a structural blueprint for the MEA system • Complex network theory provides a non-reductionist theoretical and methodological framework • MEA system to be understood and nurtured as a complex adaptive system