Beyond Crisis and Ambition: Operative Closure as a Critical Lens for Observing International Environmental Law and the South China Sea

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Kang, K orcid iconORCID: 0000-0002-2256-0805 (2025) Beyond Crisis and Ambition: Operative Closure as a Critical Lens for Observing International Environmental Law and the South China Sea. German Law Journal. pp. 1-24. ISSN 2071-8322

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Abstract

Current scholarship often views international environmental law (IEL) through a crisis or ambition lens. The “crisis lens” apologizes for the limitations of doctrinal methods in resolving disputes. The “ambition lens” seeks to align IEL with a planetary perspective but is criticized for utopianism. We offer a social-systems-theoretical alternative. IEL’s ability to learn and adapt to social change also depends on sustaining law’s function of stabilizing expectations. This constitutes the core of Luhmann’s theory of operative closure. We devise three hypotheses to reconstruct IEL’s operative closure and apply them to the South China Sea. Hypothesis 1: Environmental impact assessment norms address the problem of contingency management. Hypothesis 2: Due diligence norms address the problem of confidence maintenance. Hypothesis 3: Cooperation norms address the problem of trust retention. Our analysis shows that reconstructing IEL’s operative closure reveals its societal responsiveness. This presents a new critical lens for observing IEL’s social phenomena.

Item Type: Article
Uncontrolled Keywords: 1801 Law; 48 Law and legal studies
Subjects: G Geography. Anthropology. Recreation > GE Environmental Sciences
K Law > K Law (General)
Divisions: Justice Studies (from Sep 19)
Publisher: Cambridge University Press (CUP)
Date of acceptance: 15 May 2025
Date of first compliant Open Access: 17 December 2025
Date Deposited: 17 Dec 2025 16:30
Last Modified: 17 Dec 2025 16:30
DOI or ID number: 10.1017/glj.2025.10171
URI: https://researchonline.ljmu.ac.uk/id/eprint/27730
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