From Abandoning Fossil Fuel to Sharing our Earth: Professor Joyeeta Gupta on Protecting the Public Interest in Times of Climate Change

[This interview was conducted by Dr Stephanie Triefus, a researcher at the Asser Institute and Academic Coordinator for the Netherlands Network for Human Rights Research] 

The Annual T.M.C. Asser Lecture is an occasion for reflection on pressing questions of international law and is the Asser Institute’s flagship activity. Each year, the Asser Institute invites a distinguished scholar or practitioner to share their ideas on critical global challenges and the evolving role of law in society. Previous speakers have included Martti Koskenniemi, Anne Orford, Andrew Murray, Michael Fakhri, Brigid Laffan, and Fleur Johns.

For its festive 10th edition, taking place in the year of the institute’s 60th anniversary, the Asser Institute has invited Professor Joyeeta Gupta. The topic of the lecture is “Protecting the public interest in times of climate change: from abandoning fossil fuel to sharing our Earth.” Those interested in attending can register here.

Joyeeta Gupta is the 2023 winner of the Spinoza Prize, the highest academic award in the Netherlands, and the 2025 Amsterdam Impact Prize. She is a full Professor of Environment and Development in the Global South at the University of Amsterdam and Professor at IHE Delft Institute for Water Education. A leading global voice on climate and environmental governance, she co-chaired UNEP’s Global Environment Outlook-6, presented at the UN Environment Assembly, and was awarded the PROSE Award for environmental science. She was co-chair of the Earth Commission and is currently co-chair of the UN Secretary General-appointed Group of Ten  High-level Representatives of Civil Society, Private Sector, and Scientific Community to Promote Science, Technology and Innovation for the SDGs (10-Member-Group), part of the Technology Facilitation Mechanism.

The UN Secretary-General recently said that based on what states are reporting for their emissions to be in their nationally determined contributions (NDC) reports for this year’s Conference of the Parties (COP) meeting, we will soon surpass 1.5 °C of warming above pre-industrial levels. You’ve stressed in your work that the higher the temperature target, the more unjust the consequences for people everywhere, but particularly in the Global South. What’s your reaction to this news, and what needs to happen now?

Not all countries have submitted their NDCs, so we have no idea what it would all add up to. But already last year, we crossed 1.5℃ of warming for the first time. And normally, you need to cross it for a few years before you have definitely passed 1.5℃. So, the situation is dire, and the Secretary-General is emphasizing the urgency of the issue. Moreover, many countries take ‘overshoot’ (crossing the temperature objective and returning to it later in the century) for granted, and many actors want to increase their emissions while compensating for it (net zero). Both these related delay tactics are problematic.

I personally feel that if you really want to remain within 1.5℃ of warming, you need to have a slightly different mentality, a sort of COVID-like mentality that there is something serious happening; that the CO₂e budget for 1.5℃ will be over in three years. And that I don’t see happening right now. 

What do you think it would take for such drastic action, or such drastic change, to come at the international level in relation to climate change?

It might even just be simply one country that says, ‘We’re going to phase out fossil fuel’, and other countries follow. During COVID, everybody was copying each other to deal with the situation. The problem with climate change is a little bit more complex than COVID in the sense that it’s not going to be solved in two years. It will require major structural change to the way we live, and that is where, for most rich countries, the problem is: they don’t really feel the desire to change the way they live. Moreover, governments, big companies, and the middle class in the poorer countries all aspire to high incomes and the lifestyles of the Global North. 

Who suffers in all of this? The frontline vulnerable groups, such as children and senior citizens, are most affected by things like air pollution and storms. The impacts will almost always affect the poor more existentially. The rich will also be affected – and definitely more financially. So, it’s a bigger problem than COVID. But vested interests use misinformation to disinformation to deny, delay, confuse, and manipulate people into not taking this problem seriously.

If we had started to take this problem seriously in 1990, we would have been in a completely different place than we are today. We would have adopted a gradual long-term policy of structural change. We did not, and the reason for that is that at the national level, politicians come to power for four to five years, and they postpone rocking the boat in that period. At the international level, the target adopted at Kyoto in 1997 was with respect to the period 2008-2012, so you’re postponing all the responsibilities to eleven years later and hence to future governments. Politicians are not taking a long-term perspective, but that also goes for the CEOs of very large companies: they’re there for three and a half, four years and then they leave. 

Rich countries need to realize that they don’t have control over the problem anymore. About 78% of the remaining fossil fuel is in the territory of the Global South. And when I talk to people from Global South countries, they often say “we will use our fair share of fossil fuel” because it’s in their territory. We didn’t leave them space to use their ‘fair’ share. But if they did use their ‘fair’ share, then the climate problem worsens. So, it is in the self-interest of the Global North to ensure that the Global South has alternatives to fossil fuel, and it is affordable for them. 

The recent advisory opinions of the International Court of Justice, Inter-American Court of Human Rights, and the International Tribunal for the Law of the Sea have sent a strong message to states that they have clear obligations under international law to take urgent action on climate change and that states may be held liable for their failure to do so. What is your reaction to the advisory opinions, and how do you think they will influence the international conversation on climate going forward? 

Collectively, the three advisory opinions basically say CO₂ is a pollutant, which has implications for conducting environment impact assessments and licenses. Moreover, 1.5℃ is now seen as the legally binding target of the climate regime, and that all states must not cause significant harm, and that if they continue to use fossil fuel, they are probably causing an internationally wrongful act. Furthermore, we are in an emergency situation violating human rights. Even if these three advisory opinions are not legally binding, they tell us what the current interpretation of international law is. 

And in that sense, they are a major step forward because they try to counter the power politics of states. And these three advisory opinions are supported by more than 3000 court cases worldwide on climate change, of which at least 86 (we calculate 161) are against fossil fuel companies. Since the Paris Agreement, court cases are increasing, and in different jurisdictions, different arguments play a different role. Many of them will now use the arguments also used in international and other national courts. You’re seeing slightly different narratives (e.g., misconduct, indigenous people’s rights, human rights, procedural violations) coming up in different parts of the world. I think they will support each other, they will start citing each other, and this will create a new storyline. Worldwide social movements are playing a key role in this. I’m very hopeful that (inter)national law will play its part in reducing harm to people. 

With the Earth Commission, you have been working on the concept of safe and just boundaries. What are safe and just boundaries, and do the advisory opinions reflect this concept?

Across cultures worldwide and in international law, we have the principle of do no significant harm. However, this principle was not used in the Climate Convention. And probably that was deliberate. 

But it has returned. It has returned in the ICJ advisory opinion, where the judges talk about the duty to prevent significant harm to the environment. In the Inter-American Court of Human Rights’ advisory opinion, the judges focus on human rights violations as a consequence of climate change. Thus, this concept is becoming increasingly important, and hopefully, it prioritizes harm to humans as opposed to harm to the climate system, as mentioned in the Climate Convention.  

The next question is when does that harm happen, and does the harm to humans happen before the harm to the climate system? And using the concept of Earth system justice, the Earth Commission proposes distinguishing between  safe and just boundaries. Safe boundaries are about causing harm to the system, which then collapses or is irreversibly damaged. But long before that happens, we will witness massive harm to unique cultures, individual sovereign states, as well as to large numbers of people calling for just boundaries. 

In the Earth Commission work, we were trying to figure out how many people should die or be irreversibly harmed before we draw a line and say, “that’s enough”. In our debate, we proposed that 1℃ is the just boundary and 1.5℃ is the safe boundary. Beyond 1.5℃, you trigger different tipping elements. But at 1℃, you’re already causing harm to tens of millions of people only through wet bulb temperatures, one of many impacts.

The IPCC said that 37% of the global population will be exposed to harm at 2℃, while 14% will be exposed to harm at 1.5℃. But who decides how many people should be exposed to the harm caused by extreme heat?  And the question is, how much harm is tolerable? If we can get that story right of doing no significant harm, that gives us a good boundary (long-term climate objective) that can be translated into a carbon budget. The carbon budget then must be shared in one way or another, and that’s why we’re talking about sharing our earth and putting limits to the amount of resources we use and pollute.

The ICJ did not go so far as to talk about distributive issues and the North-South topic. But what was interesting is that it countered the idea that the environmental and social legal system is fragmented by saying that you have to look at the international climate agreements in line with other international environmental agreements and human rights. However, it didn’t go so far as to say that international climate change law should also be somehow harmonized with the trade and investment laws, which stand in the way of implementing climate change, though Judge Cleveland addresses this in her declaration.

So, the international community is currently focused on this ‘safe’ boundary of 1.5°C warming above pre-industrial levels, but in your research, you demonstrate how harmful this ‘safe’ boundary is and propose an alternative ‘just’ boundary of 1 °C. How did you come to this alternative?

In the Earth Commission, we adopted a trial-and-error method and had to discard many of our approaches. But ultimately, we implicitly drew the line at tens of millions exposed to extreme harm from climate change (for other areas, the harm levels are more stringent).

Going beyond, I argue that there is a limit to the amount of resources we can use and resources we can pollute. So, there’s a limit to the amount of groundwater or surface water you can take out, and there’s a limit to how much PFAS and plastics you can put back into the groundwater or greenhouse gases into the atmosphere. Once we accept that there are ecological limits, then how many people are we willing to let die, be displaced, or otherwise harmed? And who decides how the resources within those limits should be shared? 

If you follow a rational actor model, there are three possible options. In the neo-liberal capitalist approach, individual freedom and deregulation are prioritized, and the market becomes the mechanism for allocation. Only the wealthy can then afford scarce resources or access pollution rights. This neoliberal, market-based approach leads to land and resource grabbing, which we are already seeing worldwide. Such a system is socially unjust but also environmentally ineffective: when the resources are grabbed by the rich, the poor will still try to survive, leading to more pollution. It is not possible that you can just fix the problem with the market. 

The second option is hegemony: for example, the principle of absolute territorial sovereignty that was quite dominant in water law. This has spilled over in other arenas as political leaders say ‘my country first’ or ‘no’ to multilateralism. And this narrative has become very popular in the global arena. Many countries don’t want to share anymore; they want to just grab their right to emit as much as they want and as fast as they can. I don’t think that solves the problem because if every country does that, we are going to cross the boundaries drastically, and everyone suffers now and into the future. 

The third option is Elinor Ostrom’s (1933-2012) story of polycentric governance, that there are many centers within which governance occurs. While I agree that there are polycentric governance structures, I think sharing ecospace requires a multilateral approach. Today, we have crossed so many of these Earth System Boundaries that if you want to go back, we must talk about it together. Nobody is going to rethink the way they live on their own. We must come together. So that’s why we need international law, but we need a local-to-global iterative process that is more transformative rather than incremental. 

These three rational actor models will not work. Very famously, Garrett Hardin talked about the tragedy of the commons, and he also talked about lifeboat ethics. We rich people are living on a lifeboat, and all the others are in the water. If you have a conscience and you help somebody into the boat, you have to give up your space and get into the water. So ultimately, everybody in the boat is without a conscience. Hardin thought that that was the only way for us (Americans) to survive. But I think the people outside are so many, they’ll pull the boat down. And in fact, the rise and fall of civilizations shows that when societies become very unequal and the environment can’t support life, the civilization collapses. 

My gut feeling is we need what is called, in Oran Young’s words, the social practice model. The social practice model is different from the rational actor model because it is based on normative values and forcing, good neighborliness, and reciprocity, not just cost efficiency and effectiveness. It brings all these different norms and values to the fore, and that’s how we become a civilized world. That means more collective thinking and less individualism; more policy mixes, not just market mechanisms; and stronger, not weaker, governments that can protect the local to global commons and ensure merit goods (e.g., education, health care). And I think that that’s the way to go, to get back to those different norms and values of not causing significant harm to others, defining what that is, and then trying to live within our own environmental footprints or within what’s allowed to each of us. And that requires a different thought process. It does not necessarily mean you have to sacrifice your happiness. 

Law is being mobilized by NGOs and grassroots movements to try and counter climate change through courts. But law is also being used by corporations and foreign investors to try and squash action on climate change, to cause regulatory chill, to get compensation in the billions for climate measures. How do you consider this use and abuse of law?

I see SLAPP (strategic litigation against public participation) as a big problem. SLAPP really disempowers NGOs and scientists from working further on these issues, because we just don’t have the resources to move forward. Part of the problem is that the fossil fuel lobby is unbelievably rich. They use denial and delay tactics, lobbying with government, technological optimism, strategic blame displacement, and necessitarianism. They peddle the narrative that you will need oil, and you will need gas, and that it’s you who wants to drive, not them. They displace the blame to the consumer. And of course, they do a lot of greenwashing.

The other problem I see is contract and investment law. For example, when you speak to people at, say, the port of Amsterdam, which is a fossil fuel port, they say that they are hemmed in by all kinds of contracts of receiving and delivering fossil fuel, which makes it difficult for them to violate these contracts. Similarly, in investment law, under the Energy Charter Treaty (ECT), foreign investors can use the ECT to freeze the climate transition process. The European Union has now withdrawn from the Energy Charter Treaty, but is still affected by the sunset clause. In the meanwhile, the ECT secretariat is trying to get developing countries to come on board, which will create a new problem for developing countries because they think if they come on board, they will get more foreign investment. But they might also get stuck in this whole process.

You’ve done an incredible job of working both at a broad conceptual level through ideas like sustainable development and justice, and at a highly specific level, empirically quantifying earth system boundaries. How do you navigate the relationship between the general and specific and the legal and the scientific? 

I’m not a typical positivist lawyer. I probably left that a long time ago because I landed in an interdisciplinary environment. I have been very carefully combining different elements and putting them together to create a story. Initially, I focused on getting the narrative and argument right. But increasingly, I am also looking for ways to quantify the narrative and arguments. When I became co-chair of the Earth Commission, the Commission was working on safe boundaries, which I felt was not just from the start. That led to a huge debate about what a just boundary is. I brought up the topic of no significant harm and human rights. And then everybody was saying, what does that mean? 

I then did a whole special issue on No Significant Harm in International Water Law. And that didn’t enlighten me very much because it’s also procedural. For example, if you do due diligence, then it’s good enough, but what is due diligence? I thought I do know what the law says, and we did that special issue with the lawyers on water to figure out what it means. But maybe I have to just go outside the boundary of the existing storyline to think further. That’s how we started to think that if the safe boundary is purely quantitative, like how much water, then maybe we should link it up with ambient quality standards so that we have a boundary that reflects directly with your life and your livelihood, and your health. We also suggested that a number is not enough; we should look at other criteria. We started working with all the different areas, and we worked with trial and error. This led to a very comprehensive assessment in the Lancet Planetary Health journal. 

Most of the time, I’m not doing the quantification. The postdocs did an amazing job working tirelessly to quantify. Coming to the human rights to food, water, energy, and infrastructure, which are the basic needs, our question was: can you meet basic needs within the just boundaries? This is different from the work of the doughnut of Kate Raworth because she uses different units for the minimum needs and the maximum. We said: if you have a minimum need for water, that is for your drinking, but also for the water for your food, the water for your energy, the water for your house, how much is that water? And then we calculated it in the same unit as the boundary. In this way, we could calculate how much space there is left between the boundary and that which should be reserved for meeting minimum needs, because that’s the space we are going to share.

The outer boundary is based on the principle of do no significant harm, and the inner boundary is based on meeting human rights. We are able to calculate (imperfectly, because you can’t take everything into account) how much space is in between; our research shows that we are outside the boundaries but have not met basic human rights. That means the rich people must not only reduce their consumption, but they must also make space for the poorest to meet their basic rights and increase their pressure on the environment. If you look at the Sustainable Development Goals (SDGs), they say that we should meet the basic needs of people. Many think that it is possible with a bit of charity, but without really changing our lifestyles. That will not work because meeting the social SDGs has an environmental footprint. Thus, meeting minimum access or social human rights already has a redistributive component, which requires revisiting our economic and legal system. That’s the sharing our world narrative.

You’ve mentioned in previous interviews that you’ve spent a lot of time fleshing out what the problems are, and then at some point, you realized that you wanted to contribute to or think about what the solution might be. What’s your vision for how we can better share the Earth?

There is a big problem between private international law, public international law, and human rights law. And that is one of the things I want to tackle with my project of crowd-sourcing input for a Global Constitution that defines rights and responsibilities for an equitable and sustainable world, inspired by constitutions from around the world. We welcome essay submissions from anyone above the age of 10 interested in shaping the future of global governance and becoming a contributing author of the draft Global Constitution. I think we need some kind of clear hierarchy in the international legal system, and that it should not be that the financial and related legal system is so strong that all the other systems are just add-ons or ignored by these processes. But we also need to regulate technologies, inequality, the rights of nature, and so on.

The question is, when does something new and original become institutionalized? If you take the rise of constitutions in countries, in most of the countries of the world, the constitution came either after the end of a monarchy, a revolution, after the end of colonialism and the start of independence. Which was quite bloody in some cases. However, there was almost always a deep point followed by a sort of a rise in hope and enlightenment, leading to an impetus to create a constitution for the country and to protect the minority, because a majority in democracies doesn’t protect the minority. Maybe what we’re currently experiencing at the global level with the ideological and financial attack on multilateralism is perhaps, I’m hoping, the deep point. I’m hoping that we can do something before multilateralism is completely destroyed; we need to ensure that the multilateral system can climb back out of this deep point. Or we may not be able to govern the local to global commons and undertake collective action. This may create room for a global constitution. 

In designing and moving forward with the project of the global constitution and especially having been involved in (and disappointed by) the negotiation of international instruments yourself, how do you balance a realistic or realpolitik view of international lawmaking with being innovative and optimistic that we could come together and do things differently?

The problem is that if you accept the realpolitik, it’s already a self-fulfilling prophecy of negative movement. The Berlin Wall came down overnight. It’s very difficult to predict, and things can happen overnight, also in treaty negotiations. I remember when the Kyoto Protocol was being negotiated. The Kyoto Protocol was adopted after the formal end of the conference. Most countries’ negotiators were already on their flights back, and then they saw on the big screen in their plane that the treaty had been adopted. A lot happened after the closing of the conference, and no one expected it. The dynamics are very difficult to predict, and so you just don’t know how it works. Who would have thought in an oil-rich country two years ago that we would start talking about phasing down fossil fuel? It is very difficult to predict where the dynamics in the room will bring you, and that’s important to keep in mind. 

We are in a period where multilateralism is massively under attack. We are seeing that the UN is having to shrink worldwide in New York and elsewhere; it may be forced to shrink to such a level that it may not have the critical mass to be effective. And we are seeing a decline in rule of law and civic space, not just in the United States, but across Europe and elsewhere.

And this is very, very problematic. We are going through a pretty bad patch. At the same time, we are seeing the worst ever storm happening right now in Jamaica; Cuba and the Philippines are facing extreme weather events. At some point, we have to wake up. I’m hoping that this four-year period is the lowest of the lowest we can go and that a window of opportunity for enhanced global multilateralism opens; that we can mobilize enough people to write essays and become contributing authors to the Global Constitution. If we can get enough, then we have a bottom-up story that we can use to mobilize change.

What advice do you have for students or anyone who is already struggling in daily life and may become overwhelmed by the problem of climate change? How can one person make a difference?

Every person can make a difference, and I would say to students and others: if your breakfast is expensive today, it will be more expensive tomorrow. Everything is going to go up with the changing climatic patterns, and it’s not going to be cheap. Don’t worry so much about your own fossil fuel use because that’s much more complicated than you would imagine; just try to be part of the social movements. Join the bigger groups and write massive numbers of letters to your parliamentarians. A lot of people are just indifferent in rich countries, and parliamentarians don’t get so many letters from the public, but once they start getting those letters, they get activated. Do not underestimate the power of expressing what you want in writing.