Towards a Global Environment Trust: Determination of the General Principle of Trust Under International Law and Its Application to the Global Environment

Abstract

The current international environmental legal framework has been insufficient to avert the ecological crisis of the Anthropocene. Despite some progress in the fields of treaty law and customary law, States generally have been reluctant to agree to new rules that may further limit their sovereignty. As far as States are concerned, there is no legally binding duty to protect, restore and improve the global environment for the benefit of humankind (proactive duty). The customary obligation not to cause harm (reactive duty) and fragmented treaty obligations have been insufficient to protect the global environment. Through doctrinal and comparative legal research, this thesis shows that the missing duty can be found in the global environment trust, which has been implied in the language of the Stockholm Declaration and supported by the operation of general principles of law. This trust signifies that Governments are trustees of the global environment and owe fiduciary duties to humankind as the beneficiary. The fiduciary nature means that any State that harms the global environment or uses it contrary to the trust may be in breach of trust and liable for the damage caused. Since the general principles do not require express consent to be legally binding, the global environment trust may be enforceable against States, jointly or severally. While scholars have previously formulated trust-based concepts for the environment, those theories either remain ambiguous or depend on the express consent of States. Justifications for the existence of the general principle of trust have also been limited and underexplored. This dissertation contributes to scholarship by grounding the global environment trust in the general principles of law, systematically determining the existence, content, and implications of the trust, and situating it in the evolution of international environmental law. This thesis does not claim that the global environment trust can solve the ecological crisis, but it may assist the international community in strengthening global environmental governance.