Podcast: Thomas Boudreau, Professor of Conflict Analysis and Dispute Resolution at Salisbury University

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Common Home Conversations Beyond UN75

June 2, 2021

Kimberly White
Hello and welcome to Common Home Conversations. Today we’re joined by Thomas Boudreau, Professor of Conflict Analysis and Dispute Resolution at Salisbury University. Thank you so much for joining us today!

Thomas Boudreau
My pleasure. Thank you for inviting me.

Kimberly White
So, you’re a Professor of Conflict Analysis and Dispute Resolution at Salisbury University. Can you tell us more about this and the focus of your current research?

Thomas Boudreau
Yes, we’re a relatively new department. We grew out of one course taught by a charismatic professor, Phil Bosserman, and now we’re an undergraduate program and a graduate program. In 2018, we were recognized as the second-best program in conflict analysis in the United States. So in a very short time, we’ve made a mark both in our undergraduate teaching and our graduate program.

Kimberly White
That’s fantastic- congratulations! So earlier this year, renowned naturalist David Attenborough told the UN Security Council that climate change is the “biggest threat to security that modern humans have ever faced.” Similar sentiments have been expressed by leading climate and environmental scientists. Now, you have proposed an Earth Armistice to address this existential threat. Could you please tell us more about this and the benefits such a resolution could have for our global community?

Thomas Boudreau
Yes, well, first, I’d like to recognize the extraordinary work and achievement of Sir David Attenborough. He’s just a world treasure, and we should all thank the United Kingdom for sharing him with the rest of us. Extraordinary individual. Sir David is absolutely correct in characterizing climate change as the greatest threat that humanity has ever faced and certainly faces today. And we have to address this in the next 5 or 10 years, or it will become a runaway freight train. And I think if we wait too long, it’ll be too late. So I asked myself, “what organization can make a global law with one vote in one day in one place?” And that’s obviously the UN Security Council. And the UN Security Council is charged with the maintenance of international peace and security. And there is no question that climate change is increasingly threatening the maintenance of international peace and security and will continue to do so in major ways in the coming years. So, the UN Security Council is a natural place to address this. It also, by the UN Charter, is responsible for the regulation of armaments. And so the Earth Armistice idea is, namely, for the UN Security Council to vote. As I say, and they could do this in one vote, it’s not simply a resolution. They have the power, the legal authority under the charter, to make binding decisions on all the member states. That’s why the great powers watch the council like a hawk. But they could vote an Earth Armistice; they could approve it, which would require every state to cut from 10 to 20 percent of its current defense budgets and devote it exclusively to addressing climate change. And to do so, nation states have to do the obvious- namely, redefine and expand their understanding of national security to include the threats that climate change presents to us today and will increasingly present to us in the future. I don’t think the Earth Armistice will be adopted today or tomorrow. I think it will be adopted at some point. My fear is that it will simply be too late to address the coming storms that are now inevitable.

Kimberly White
Now, you said that the Earth Armistice would be essential to ensure sustainable development as well as achieving the Sustainable Development Goals. Could you please elaborate on that?

Thomas Boudreau
There will be no sustainable development unless we develop a sustainable climate. But to do so will involve enormous costs as well as opportunities. The transition from a carbon-based global economy to a green-based global economy will involve tremendous opportunities and new jobs in a variety of sectors. And what’s needed is the funding, and the global militaries now spend almost $2 trillion a year on national defense defined in terms of defending the nation state against other nations. What they need to do- and this you see this thinking already among the military, unfortunately, don’t see it as much with the politicians- but what you need to do is redefine your national security in terms of sustainable development. To do that, you need to invest in green economies. There’s tremendous work to be done in the conversion of current carbon-based energy sources to green sources, such as solar and wind, and making them resilient and ensuring that they can sustain the coming winds and weather that could do a lot of damage to existing infrastructure. At the same time, you want the green economies to develop the necessary negative emission technologies, or carbon sequestration, to start pulling carbon out of the atmosphere. And we’ve made very little or no progress in this area whatsoever, and that’s, again, a reason for the Earth Armistice. Creating negative emission technologies can create hundreds of thousands of jobs, especially in the developing world, and thus encourage sustainable development and the very rapid emergence of green economies throughout the globe.

Kimberly White
I’m glad you brought up carbon sequestration- I think that’s such an important part of tackling climate change. People don’t realize how important natural solutions- such as soil- are to our environment and to the health of our planet.

Thomas Boudreau
Well, I think we’re gonna have to go beyond soil sequestration or carbon farming, although that can play a critical role. I think we need to try a whole variety of approaches to carbon sequestration using the land and the oceans. And I’d like to make a distinction between carbon sequestration, which is land or ocean-based, and geoengineering, which is the spraying of aerosols in the atmosphere, which I am very skeptical of. Because we had an experience in the States with sulfuric acid killing the lakes, acid rain, and I think the current plans for the use of aerosols in the atmosphere, solar geoengineering, could be a repeat of that acid rain experience, if not worse.

Kimberly White
Absolutely, the risks associated with solar geoengineering are far too great. I believe that restoration efforts are essential moving forward. For instance, with the peatlands. Peatlands cover just three percent of our land globally, yet they are a carbon sequestration powerhouse. They store over 550 gigatons of carbon. And recent studies have shown that restoring some of these habitats could prevent the release of as much as 394 million tons of CO2.

Thomas Boudreau
There have to be massive restoration efforts of reforestation, aforestation, which means planting forests in areas where they don’t exist. There’s going to be the increasing problem of droughts and massive wildfires. The forests have to be planted or reforested in areas that aren’t going to burn down anytime soon. Personally, I find the phenomenon of green lawns in front of homes to be hopelessly obsolete; I think people should get tax breaks for planting trees on 50 percent or more of their lawns. There are areas in Montgomery County, north of DC, that have one home on top of a hill surrounded by a huge lawn that was carved out of a forest. And they cut the lawn every week, and deer eat on the lawn at night, but they could replant that lawn with trees. And if people just did that, in areas where there was still a lot of rain, we could significantly cut into the existing carbon at least on a seasonal basis that’s up there already in the atmosphere. But every single technique has to be tried at this point. Because in 2018 and 2019, we put 43 million tons of CO2 up in the atmosphere. Despite Paris, despite all the promissory notes to cut carbon. It was the most carbon we have ever put up in the atmosphere, I’m talking about us as human beings, so we really need to start pulling some of this out if we have any hope of keeping temperatures down to a livable level. So we have to try every possible nook and cranny of carbon sequestration that’s available to us.

Kimberly White
Absolutely, and it is important to ensure that these solutions do not exacerbate other issues. As far as large-scale restoration efforts go, there have been several great initiatives. Pakistan and their billion trees tsunami, which soon turned into their 10 billion trees tsunami, if you look at the before and after pictures of what they’ve been able to do with the land as far as restoration, it’s very impressive.

Thomas Boudreau
Well, absolutely, I mean, in terms of preserving biodiversity, we need to restore the forest and as much wilderness as we can. It also creates jobs, and that’s where Earth Armistice would provide funding, would provide the actual money. People trying to get money out of governments will be very difficult as we face declining agricultural productivity and other consequences due to climate change. So getting money out of existing budgets will be very difficult unless we all agree to, together, simultaneously, cut our military budgets.

Kimberly White
Now, in your article “Preserving Nature and the Nation: Redefining State Sovereignty in the Anthropocene Age,” you relate that in the face of accelerating global climate change, it’s time to reconstruct the legal definition of sovereignty, ensuring that it includes the state’s primary responsibility to preserve life. Meaning it must protect both the nation and nature, or you say the “nation-state may well prove to be the modern dinosaur, doomed to extinction.” Current environmental law appears to be designed to deal only with the tangible things of nature within territorial borders. Given your expertise, how do you think we can best move past this and protect the intangibles of nature that we all share and need for life on this planet?

Thomas Boudreau
That’s actually a very good and very complex question. First on, on redefining national sovereignty, it’s become almost this absolutist definition that doesn’t allow any international law, or very little, to percolate within the domestic jurisdictions of many states and courts. And that, of course, is changing. And a variety of scholars have noted that. What I argue for is that the state, in view of climate change, the state has to recognize that its fundamental basis for legitimacy and sovereignty is its ability to preserve life and nature. The nation is the agency of regeneration- nation comes from natio in Latin, meaning birth- so the primary responsibility of the state and of governments is to ensure the birth and rebirth of the people who are entirely dependent upon nature and natural resources for their existence. So, we don’t need to so much change national sovereignty as much as enlarge it to what I call integral sovereignty. Integral comes from the Latin meaning parts of the whole, parts of a greater whole. And, in this case, the greater whole is, of course, Mother Earth that supports and sustains us. And one of the ideas that I proposed in that article is that the configuration of sovereign powers within a government between the executive, the legislative, and the judicial be reconfigured so that the judiciary has the power and responsibility to enforce environmental laws to preserve nature as a precondition for state sovereignty. In other words, it isn’t a creation of state sovereignty. The judicial recognition and enforcement of laws to protect nature are a precondition for legitimate and lawful state sovereignty. And that opens the courts up to accepting international agreements, that opens the courts up to accepting international principles, general principles of international law, such as the precautionary principle, the “do no harm” principle, the prevention principle, they should all be enforced in domestic jurisdictions, by courts. In fact, the court in Germany just made this watershed decision, saying that the young people in Germany have human rights to a future. So, they are recognizing that, and they did so on the basis of European law as well as their own human rights law, but they also noticed the lack of international binding law in this area. And so, I think there is a real need to develop binding legal treaties and concepts that recognize the earth systems as a whole, as necessary to the preservation of nature and the nation. And in that sense, courts could enforce, if there was greater international recognition of this, then courts could enforce that domestically within their own territorial jurisdictions. So, I see the courts as playing a critical role in helping to preserve the environment, nature, and the nation, but to do so, they have to be seen as recognizing environmental law as a precondition of state sovereignty.

Kimberly White
In “Promoting the Rule of Law in the Global Environment,” you discuss how our global commons are “under constant and destabilizing assault” by states whose economies are largely carbon-based and that the legal protection of the global commons is critical. Do you think now is the time to recover the 1988 Maltese proposal of recognizing climate as a Common Heritage of Humankind?

Thomas Boudreau
Well, I love the work that Malta has traditionally done in this area, especially in articulating and recognizing the concept of a common heritage of humanity. I think it’s been an invaluable contribution to international law. The challenge facing us now is that we need to enforce that, and we need to go beyond that. The problem with the common heritage of humanity is that it talks about all states working together to protect the globe as a whole, which is absolutely essential. But to do so requires the construction of an international agency or organization, and that could take 10 to 15 years, and I don’t think we have time to do that. We need to operationalize these legal constructs immediately and apply them immediately in the courts and in policymaking between states. So, I think we need to absolutely recognize the principles of the common heritage of humanity on a collective level, but at the same time, we need to recognize ancient ideas such as trusteeship, Justinian’s idea of public trust, that certain areas of the global ecology have to be preserved in order to ensure the continuation of life and biodiversity on this planet. I call these the core commons. Paulo [Magalhães] calls this the condominium concept of protecting the Earth’s systems as a whole. And we now know what the nine or so critical systems are to preserving life on this planet, and many of them are under assault, so they need legal protection. So, I think the challenge is to not just develop the common heritage of humanity, but also to recognize the earth systems as a legal condominium, to recognize them as a public trust, and also to recognize people’s right to a future, as the German courts did recently, as a human right. So, those provide a variety of arguments. Courts and policymakers usually accept one argument out of many, and so the hope is if you present them with several alternatives, that they’ll run and develop at least one of them.

Kimberly White
Now, you’ve referenced Paulo with the Common Home of Humanity. Could you share a little bit more about your thoughts on the proposal from CHH?

Thomas Boudreau
Well, I think it’s absolutely essential. I think it is wonderful work that Paulo has initiated in Portugal and enlisted support from around the world. I think he’s absolutely right that we have to look at the life systems of the Earth as a system as an integrated, complete system. And we are not treating the Earth’s biosphere and life systems as one integrated system. And so I think Paulo’s work is absolutely essential to our understanding that if we’re going to save ourselves, we need to save the basic life support systems that make all of life possible on Earth, or we’re not going to make it.

Kimberly White
What do you think the role of law should be in addressing the climate emergency as well as other environmental challenges we face? Do you believe it is necessary to rethink the legal concept of the planet?

Thomas Boudreau
First, I think we have to enlarge our understanding of what law is, especially international law. Before Jeremy Bentham, who did not approve of the American Revolution and was an imperialist, before he defined international law as an agreement between sovereigns, he did not say, for instance, between sovereign states. He meant between kings and emperors. And that’s the current definition of international law, and I think it’s hopelessly inadequate, especially since the legal revolutions caused by World War II. I think we need to enlarge and expand our understanding of international law and the profound interrelationship between international law and norms and domestic law and norms, especially in the field of the environment. I co-authored a book on this with Dean Sainz-Borgo of the University of Peace in Costa Rica in 2017, where I tried to go back to Blackstone’s definition of the law of nations, which included individuals, groups, nations in the state, and disputes under the law of nations could be adjudicated in domestic jurisdictions. If we’re going to have an accurate understanding of how the law can operate or should operate in this challenging era, I think we need to combine Blackstone’s understanding of international law, or as the law of nations, which was much more permeable, with Jeremy Bentham’s understanding as law between sovereigns, which has been interpreted now as simply agreements between sovereign states. So, I think we need a more robust understanding, and that’s already happening in practice. They call it transnational law or international constitutionalism. There’s a variety of paradigms out there trying to describe the phenomenon how, what I described as the domestic diffusion of legal norms across domestic jurisdictions or the differential diffusion of international norms into domestic jurisdictions, that’s already happening. I think we need to do much more of that with environmental law if we’re going to have any hope of preserving what remains. As I say, it’s an absolute obligation of the courts and as a precondition to legitimate state sovereignty. States cannot claim to be sovereign states unless they are preserving nature and the nation, and most of the developed countries and industrialized countries, I would add, not just simply developed ones, but industrialized countries are not doing that. So there has to be a marked difference, a marked expansion of our understanding of law as it applies in the world today.

Kimberly White
So, essentially we need a global paradigm shift in order to effectively tackle the converging crises of climate change and widespread biodiversity loss. Do you think the proposed Global Pact for the Environment could be the vehicle for such a shift and, in your opinion, what should be its content?

Thomas Boudreau
Very good question because I’ve worked on this, as you know, since 2018. I think the Global Pact for the Environment emphasizes that everyone has a human right to a healthy environment. And something I noticed in the recent German decision, which is simply a watershed moment, is that they seem to lament, mostly in terms of the absence of any international pact, there was a lack of citing of international treaties, especially concerning human rights because the German court argued in terms of the human rights of young people to a sustainable future. So, I think the Global Pact for the Environment could fill a critical legal need and niche in providing an overarching, legal right that people can argue in their own domestic jurisdictions in order to protect the local and global environment. But as I mentioned before, I think the Pact could also include more explicit language about Justinian’s idea of public trust. When you talk about the rule of law, most jurisdictions contain a very likely body of fiduciary duties, responsibilities, norms, and parties, and so I think the language of trust and trusteeship could and should be in the Global Pact for the Environment. You don’t know what the courts or what judges will favor, and so I also think that the language of the common heritage of humanity and Paulo’s idea of the legal condominium of the earth system as a whole could be in there. And so you provide a variety of arguments that the courts or policymakers could then seize upon, they might only seize upon one in making their own decisions or legal judgments, but I think the Global Pact for the Environment is absolutely essential because it will fill this glaring gap in international law that desperately needs to be filled if we’re going to make any progress in preserving the nature or the nations in the very near future.

Kimberly White
Now, we’ve already discussed the role of law in tackling the climate emergency- what role does civil society play in driving the necessary ambition needed to achieve real, concrete action?

Thomas Boudreau
Well, I think civil society is absolutely essential. And by that, I mean, the rest of us, you know, we’re not politicians, we’re not in the government, we’re not in the judiciary. I think civil society can be the main driver for changing the current trajectory of the environmental disaster that we’re on. For instance, in our consumption patterns, we need to live life very locally. Environmental elites still love to get on jets and fly to other countries or continents to conferences, protesting climate change and thereby creating an enormous carbon footprint when you consider the hundreds of delegates, diplomats, NGOs who go and then the media, you’re creating an enormous carbon footprint at every one of these conferences and thereby becoming a victim of your own protest. So I think we need to learn to live locally, especially since we have Zoom and Skype and video conferencing. That’s why I also emphasize the role of the United Nations. The largest diplomatic community in the world already exists in New York City. There’s one in Geneva, there’s one of Vienna, in Kenya, in Singapore. We don’t need to recreate these conferences. I know the COP parties meet periodically, but what I’m saying is, at the same time, we should be using institutions that already exist and that don’t contribute any more carbon footprints, massive carbon footprints to the problem. I also think that civil society can really fundamentally change our consumption patterns. There’s no need, especially during the crisis, to eat red meat, especially in the United States. I mean, the idea of having three squares a day that each contain some red meat, I think, is ludicrous.

We need to really cut back on consumption that is literally killing the planet, and so civil society can contribute to that. We need to live very locally. We need to curtail our consumption patterns that are contributing to the death of the planet, and we need to get actively involved in trying to restore our local environment.

Kimberly White
All right, thank you, Thomas. But before we go, is there anything else you’d like to share with our audience?

Thomas Boudreau
Yes, I would like to share the basic idea that we are already in the decisive decade, I think we will decide the fate of the planet or, or the fate of much of the planet, both nature and people on it in this decade, and so we need to take decisive action now and in the next few years, if we’re going to avoid catastrophic climate change and destruction. So the challenge is really to all of us to start acting, living locally, and making the changes necessary, individually, collectively, nationally, internationally, to ensure that life survives on this planet.

Kimberly White
All right, and there you have it. Without a sustainable climate, there will be no sustainable development. Transitioning from a carbon-based global economy to a green-based global economy is essential and will provide a myriad of opportunities and new jobs in a variety of sectors. The Earth supports and sustains us, and many of its systems are under assault and need legal protection, and currently, international law is inadequate. We need to develop binding legal treaties and concepts that recognize the earth system as a whole. The Global Pact for the Environment could fill the glaring gap in international law, providing us with an opportunity to preserve nature and nations. That is all for today, and thank you for joining us for this episode of Common Home Conversations. Please subscribe, share, and be sure to tune in on June 30th as we kick off the new season of Common Home Conversations. And visit us at www.ThePlanetaryPress.com for more episodes and the latest news in sustainability, climate change, and the environment.

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