Iheanyi Samuel Nwankwo, Kai Wendt and Jeanne Pia Mifsud Bonnici
Nicholas Wasonga Orago
Jan McDonald and Anastasia Telesetsky
René Urueña and Maria Angelica Prada-Uribe
Karen Da Costa
Flavia Zorzi Giustiniani
Elena Evangelidis and Thérèse O’Donnell
Kirsten Nakjavani Bookmiller
W. John Hopkins
Marcos Nelio Mollar
A Critical Assessment
Makane Moïse Mbengue and Rukmini Das
International disputes related to freshwater resources are increasing in number and complexity. The rising complexity is necessarily accompanied and compounded by the involvement of experts in dispute resolution. This monograph examines, through case studies of international tribunal decisions, the role and use (or absence) of experts in international freshwater disputes. Through this examination, the authors identify the good practices as well as the lacunae in expert use in disputes of this nature. The monograph goes on to suggest the best practices with respect to expert involvement and use for a more fair and efficient resolution of international water disputes.
Comment on the Opinion by Advocate General Saugmandsgaard Øe in the Tapiola Case (C-674/17)
The “wolf issue” is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers’ and hunters’ organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the engo community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the cjeu on whether such a license hunt is in line with the Directive. The Advocate General’s opinion in this case (C-674/17) came in May. This article is a comment to that opinion.
For decades, German agriculture has been responsible for high nitrogen inputs into the environment. Recent reductions in nitrogen surpluses that were originally caused by fertilization are not sufficient to meet European requirements. In the case of ammonia emissions, there has even been an upward trend despite contradicting national emission targets due to the expansion of animal husbandry. Both developments are not surprising, since German agricultural policy has for years been unable to adopt stricter measures that would reduce nitrogen surpluses and ammonia emissions and modernise existing regulatory concepts in line with European requirements. This paper presents the state of current emissions in section 1. Subsequently, sections 2 to 4 present the regulatory concepts for livestock facilities, agricultural fertilisation as well as the protection of Natura 2000 areas from agricultural intervention and identify their shortcomings in the light of recent rulings by the European Court of Justice. The paper offers a summary assessment that includes the most important areas for improvement.
Louis J. Kotzé
This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.
As with many biodiversity laws, the Habitats Directive allows for exemptions. While it can be argued that flexibility is necessary for handling dynamic ecosystems, the associated lack of legal clarity on the room to derogate can risk impairing both the effectiveness and the uniform application of EU-law. This study aims at clarifying the conditions to derogate from the strict protection of species under Article 16(1)(e), a provision which has been interpreted to provide a legal basis for hunting species with a favourable conservation status in several Member States. One such controversial case is the hunting of brown bears in Sweden. The Swedish brown bear management will thus be used as an illustrative example to discuss Member States’ discretion to derogate under Article 16(1)(e).
In Germany, the wolf population develops in a very dynamic manner. As a result, politics and society increasingly worry about human safety and whether the return of the wolf can be kept compatible with pasture grazing. Plans by the federal states (Länder) for wolf management serve both to prepare society for the return of wolves and to deal with likely emerging conflicts. In exceptional cases, conflict management may include the ‘removal’ of wolves, i.e. the killing of individual ‘problem-wolves’. This paper analyses the legal prerequisites for the removal of wolves; it also addresses the conditions that must be met for wolf management to be placed under a new legal framework – beyond the exemption regime under species protection law. In this context, the ‘favourable conservation status’ of wolves plays a key role.
Shawkat Alam and Sheikh Noor Mohammad
The ecosystem approach emerged in the international environmental realm to promote equity and justice for both people and nature. It provides a set of mechanisms, including equitable benefit sharing; conservation and sustainable use; adaptive management; and participatory practices. This article explores how the ecosystem approach that is used in natural resource management shares synergies with notions of environmental justice, including distributional justice, procedural justice and justice-as-recognition. It also explores how the ecosystem approach responds to two additional principles of environmental justice that are specific to environmental disciplines, namely, intergenerational equity and the precautionary principle. The article illustrates the complementarity between the ecosystem approach and environmental justice through practical examples and argues that environmental justice can be promoted by utilizing the ecosystem approach as a vehicle for policy-makers.
Beatriz Garcia, Mandy Meng Fang and Jolene Lin
Marine plastics pollution (MPP) is an alarming problem affecting many countries, particularly in the Asia-Pacific region, and generated mostly from land-based sources. Five Asian countries (i.e. China, Indonesia, the Philippines, Vietnam and Sri Lanka) have been identified as the largest sources of MPP globally. This article presents two cases studies focused on the two largest polluters: China and Indonesia. Both countries face similar challenges in dealing with plastic pollution. They have weak legal and institutional frameworks in place to deal with MPP. The two case studies also show that there have been more creative and effective measures taken at the domestic level by local governments and non-state actors, many of which involve partnerships among different stakeholders. This article argues that governance efforts to address MPP require an ‘all hands-on deck’ approach, involving multi-level and multi-actor strategies and targeted regulatory and non-regulatory measures. However, our findings also suggest that most efforts should be directed at the subnational level, from which the problem mainly originates. This article proposes a number of legal and policy recommendations, based on the lessons learned from the case studies, which can be instrumental in reducing the global MPP crisis.
Michael Addaney, Michael Gyan Nyarko and Elsabe Boshoff
Scarce environmental and natural resources, such as minerals and water, are traditional origins of armed conflicts in Africa. There are persuasive and wide-ranging claims to the effect that environmental degradation will intensify resource scarcity and consequently contribute to an increase in armed conflict. Existing studies show that most governments in Africa overexploit valuable natural resources such as diamonds, oil and timber to finance war, without regard to environmental protection. Environmental protection during armed conflict has therefore gradually gained significant attention at international, national and regional levels. This article explores how regional laws could fill gaps in the international legal frameworks for the protection of the environment and natural resources in the context of armed conflicts in Africa. It considers the extent to which the enforceable content of regional and international norms apply to environmental damage in times of armed conflict and assesses the main shortcomings of existing normative frameworks to make a case for reform. The article argues that regional law (the African Convention on the Conservation of Nature and Natural Resources) offers strong and direct protection to the natural environment during armed conflict and requires a lower threshold for its application as compared with the Additional Protocol I to the Geneva Conventions. It concludes by providing recommendations on finding durable solutions to protection of the environment during resource-fuelled armed conflict in Africa.
Andy Raine and Emeline Pluchon
Reported Period 15.11.2018-13.02.2019
Edited by Lorenzo Squintani
Juliane Kokott and Christoph Sobotta
The enforcement of EU environmental law is of particular relevance because EU law provides most of the framework of environmental law in the Member States, including the UK. Supervision by the EU Commission ensures a certain general standard of compliance, especially as regards transposition of directives and conformity of transposing legislation. The practice of domestic courts is an essential complement to Commission action. In this respect the Luxembourg jurisprudence has in particular strengthened the judicial powers of UK courts and provided some protection against excessive costs of judicial proceedings. After brexit much of this contribution could continue to be relevant, in particular if the agreement that was negotiated with the EU should be ratified.
Charlotte Streck, Moritz von Unger and Nicole Krämer
The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.
Annalisa Savaresi and Lucia Perugini
Under the recently adopted 2030 EU climate change policy framework, land use, land use change and forestry (lulucf) will for the first time contribute to the EU’s economy wide emission reduction target. This article looks at the history of the lulucf Regulation, analysing its contents in light of the history of international and regional efforts to regulate emissions and removals in this specific sector. It highlights the challenges associated with regulating this specific sector and reviews the regulation, assessing how well it has addressed these challenges.
Bernhard W. Wegener
The Gerechtshof in The Hague has condemned the Netherlands to take measures to ensure a reduction of at least 25% of Dutch greenhouse gas emissions by the end of 2020. The court thus confirms the first-instance Urgenda decision, which had attracted much attention worldwide and which serves as a model for a whole series of other climate change litigations, some of which have since failed, some are still pending or planned. Even bearing in mind the urgency of the climate protection goal pursued by these lawsuits, the idea of a world rescue through court decisions is ultimately misleading. It overestimates the power of the judicial branch and risks being lost in mere symbolism. Worse still, it shifts responsibilities and creates expectations that tend to further de-legitimize the constitutional democratic systems of the world and their concept of a separation of powers. Even from a solely environmental point of view, this constitutes a high risk, because there are no better alternatives of responsible government. Keeping this risk in mind, the fact that the specific “Urgenda”-decision is legally not convincing seems an almost minor aspect.
John H. Knox
This article provides a framework for considering how human rights norms have been, and may be, brought to bear on climate change. After describing how human rights norms have been applied to environmental issues generally, the article addresses the challenge of climate change, whose global nature complicates the application of environmental human rights norms. The third section summarizes the emerging human rights obligations of states with respect to climate change.
Annalisa Savaresi and Juan Auz
The adoption of the Paris Agreement has prompted a flurry of climate change litigation, both to redress the impacts of climate change and to put pressure on state and non-state actors to adopt more ambitious action to tackle climate change. The use of human rights law as a gap-filler to provide remedies where other areas of the law do not is not new, especially in the environmental context. It is therefore not a surprise that human rights arguments are increasingly being made, and human rights remedies increasingly being sought, in climate change litigation. While relatively few cases have been argued on human rights grounds so far, the trend is continuing and accelerating, with some striking results. This article takes stock of human rights arguments made in climate change litigation to date to gauge what they reveal about the evolving relationship between human rights and climate change law—and about possible future developments.
The adoption of the Paris Agreement in 2015 constituted an unprecedented step in the recognition by states of the importance of ensuring that their action on the climate is informed by human rights: for the first time a global environmental legal instrument referred explicitly to human rights. However, whether this provision will contribute to the shaping of climate policies depends significantly on the extent to which it is integrated into further guidance regarding the implementation of the Agreement. The adoption by states of guidance on most aspects of the Paris Agreement, at cop 24/cma1.3, in December 2018, is a litmus test on whether the implementation of the Agreement is likely to reflect a higher level of integration of human rights concerns into climate governance. Having noted the absence of explicit reference to human rights in the guidelines, this article reviews key aspects of the guidelines from the perspective of principles related to human rights, such as public participation, gender equality, and respect for the rights and knowledge of indigenous peoples. This review includes an analysis of the final provisions in key chapters of the guidelines. It is informed by the positions put forward by countries throughout the drafting process as well as by the evolution of negotiating texts prior to the finalization of the guidelines. The review finds that cop 24/cma1.3 failed, for the most part, to uphold the principles laid out in the preamble to the Paris Agreement, particularly in relation to human rights; the guidelines make only a few references to human-rights-related principles.
Annalisa Savaresi and Joanne Scott
In the wake of the disappointing outcome of cop 24/cma 3.1 in relation to human rights, this article asks whether the Paris Agreement’s preambular recital on human rights is the outer limit of what the regime can countenance, as the text appears to suggest, or whether it is a hook for the gradual mainstreaming and expansion of human rights protections in the climate regime, as many human rights advocates hope. To address this question, the article explores the contest over the manner and extent to which human rights law applies in the climate change regime, as well as the context in which it is set in relation to the evolution of the climate regime from a prescriptive to a facilitative regime. The article concludes that procedural rights and commitments, which leave considerable discretion to states in relation to outcomes, slot neatly into the Paris Agreement’s architecture, and will likely be progressively mainstreamed and expanded. However, a significant expansion of substantive human rights protections in the climate regime will need to await its moment.
The right to a remedy is central to a human rights approach to climate change. However, a range of obstacles inhibit access to justice for victims of human rights violations caused by climate change. This article considers two elements of the right to a remedy: access to justice and substantive redress. In relation to access to justice, it considers the potential of domestic courts, as well as regional and international bodies, to offer redress for human rights violations caused by climate change. In relation to substantive redress, it examines international jurisprudence on remedies and discusses its applicability in the context of climate change. Together, these discussions provide an insight into the obstacles to justice for human rights violations caused by climate change and the ways in which these may be overcome.
The Global Stocktake compels states periodically to focus on the Paris Agreement’s ultimate aims. Without it, each state’s attention would have been fixated on its own Nationally Determined Contribution and little else. The Paris Rulebook clarifies how the stocktaking mechanism is to function—in all but one respect: although the rules keep the emphasis squarely on “collective progress” as the proper object of the stocktake’s assessment, the text is ambiguous on whether its implied opposite—individual state progress—is to be excluded from the assessment. The ambiguity rides mainly on the notion of “equity”—a term as dutifully inserted into key passages of the Rulebook as its explanation is studiously avoided. Whatever the negotiators may have intended in this respect, an objective construction of the Rulebook shows that an assessment of the individual progress of states is permitted to occupy a substantial part of the stocktaking process, except when it comes to formal reporting on the stocktake’s outputs. The non-exclusion of individual assessment from the dialogue that powers the stocktake means that, while the ideology of “national self-determination” may have succeeded in turning out an Article 15 Committee of unprecedented blandness, it has neglected to defend its flanks in the Global Stocktake, making for an unpredictable, yet potentially useful process.
EU climate law has come to consist of many rules and court decisions. Given its breadth, complexity, and dynamic nature, it is a huge challenge for scholars to acquire a good overview, let alone develop a comprehensive and in-depth analysis of the law. It should not be taboo to concede that hard-working scholars may fall short of having a thorough appreciation of the “state of the art” of EU climate law. Because of this, not only prioritization but also cooperation among scholars is necessary. While legal research can point to problems and shortcomings in EU climate law, it should at the same time delve on the importance of having a body of EU climate law leading to emission reductions that most likely would not have been achieved if the EU member states had had to decide on this objective individually.
Gu Zihua, Christina Voigt and Jacob Werksman
This article provides a comprehensive overview of the modalities and procedures for the effective operation of the committee tasked to facilitate implementation of, and promote compliance with, the provisions of the Paris Agreement. This is done in the context of the negotiation history and the object and purpose of the Paris Agreement. The article explains how the Committee is expected to function, the situations that trigger its proceedings, and the outcomes that can be expected. The article also explores the linkages to other processes and mechanisms under the Paris Agreement, especially the Enhanced Transparency Framework, and explains how the Committee will add value to the Paris Agreement’s architecture.
Nationally Determined Contributions play a critical role in the architecture of the Paris Agreement. Parties are required to prepare and communicate their ndcs and to undertake domestic efforts to meet their mitigation commitments, facilitated in some cases by support and finance from other parties. The focus of this article is on key elements of the five-year cycle that deal with the content and process of ndcs, specifically the portion of the Paris Rulebook on the communication of ndcs and the accounting for their implementation. The article concludes that while the basics appear to be in place, there are a number of gaps and uncertainties that may result in implementation challenges.
This article examines the substantive and procedural rules on climate finance adopted as part of the Paris Rulebook. It finds that the Rulebook has occasioned some important progress, less on substance than on procedure facilitating greater transparency. On substance, the Rulebook recognizes the existing goal by developed-country parties to the unfccc to raise $100 billion of climate finance per year by 2020 and it provides for a process to be initiated in 2020 to determine a new collective goal that will be no less than the existing one. On procedure, the Rulebook establishes extensive reporting obligations for improved understanding of climate-finance flows. By examining the implementation challenges and gaps, this article discusses whether the climate-finance provisions of the Paris Agreement as developed through its Rulebook will be able to remain consistent with the applicable principles of international law on climate finance and thus drive a comprehensive shift in finance flows.
Jolene Lin and Alexander Zahar
The aim of this article is to assess and explain the effectiveness of the international climate regime in a problem-solving perspective, with a focus on mitigation. As CO2 emissions have increased by more than 60 per cent since the start of the climate negotiations, effectiveness is exceedingly low. In explaining the performance of the regime, the main focus is on its problem-solving ability, defined as a function of power, leadership, and institutional design. ‘Negative’ power and a lack of leadership constitute important reasons for low effectiveness. In this broader perspective, the role of institutional design, exemplified by the Paris Agreement and its Rulebook, is fairly modest, and its significance should not be exaggerated. The Agreement and Rulebook score high in terms of ambition, but whether the rules will ever realize those ambitions remains to be seen. Domestic interests and priorities of the most important emitting countries will be decisive in this regard.
In December 2018, cop 24/cma 1.3 adopted the Modalities, Procedures and Guidelines for the Transparency Framework under Article 13 of the Paris Agreement. Commenting on this decision, this article reviews and assesses the rules on transparency in the unfccc regime as they will apply during the coming years. Two main themes are identified: differentiation and progression. With regard to differentiation, while the Transparency Framework seeks to apply the same rules to all countries, bifurcation remains in place in some important respects. With regard to progression, the article identifies four aspects in which the adoption of a uniform set of rules has come at the expense of the stringency of the rules applicable to Annex i parties.
Reported Period 15.09.2018-15.11.2018
This paper discusses, if and how the challenges of climate change could be brought in a case before the Court of Justice of the European Union. It concentrates on the admissibility of such a case and finds in the European Charter of Fundamental Rights the lever to overcome the obstacles which Article 263 tfeu places in front of members of the civil society. It discusses successively the questions of the Union act which might be tackled, the questions whether individual persons are directly and whether they are individually concerned by climate change decisions; and it ends with a short concluding remark.
Noise constitutes an unwanted by-product of the use of transport infrastructure and various other social and economic activities, especially in dense urbanized territories, affecting citizens’ health, sleep regime, social behavior and psychological comfort as well as the environment. The Directive 2002/49/ec on the assessment and management of environmental noise (end) sets the legislative background for the prevention of environmental noise and the reduction of its harmful effects on humans putting Member States (ms) in the driving-seat when shaping and implementing noise rules. However, although it was the first comprehensive effort aspiring to carve out a coherent eu-wide noise policy, its fragmented and problematic implementation raises crucial questions about its effectiveness. To this end, except from the end enforcement at national level, emphasis will be given to the noise protective regime emerging from echr and the ECtHR case law as well as to the most recent developments in the field, such as the “smart city” mechanisms for improving acoustic well-being in urban living spaces and the Dutch concept of “environmental distribution policy”.
The advent of Rights of Nature (RoN) marks a new paradigm shift in the philosophical approach to nature. As such, the concept has generated enthusiasm amongst environmentalists and legal scholars. This is not surprising since granting legal personhood to nature seems to present itself as a relative easy fix for the multitude of deficiencies of “modern” environmental law. However, when critically assessed, many of the underlying assumptions justifying a shift towards rights-based approaches to nature are open to challenge. In this paper, which takes a more critical stance on the topic of RoN, it is submitted that also the much-criticized modern environmental law is moving towards a recognition of the intrinsic value of nature, puts breaks on property rights, offers remediation actions for pure ecological damage and also increasingly grants environmental ngos wide access to courts. Moreover, on a second level, it is argued that RoN are not a legal revolution and that many of the problems Rights of Nature tries to cure – such as a lack of enforcement – will simply re-emerge if not adequately assessed within this novel paradigm.
Edited by Gudmundur Alfredsson and Timo Koivurova
- human rights issues, such as autonomy and self-government vs. self-determination, the rights of indigenous peoples to land and natural resources and cultural rights and cultural heritage, indigenous traditional knowledge,
- local, national, regional and international governance issues,
- environmental law, climate change, security and environment implications of climate change, protected areas and species,
- regulatory, governance and management agreements and arrangements for marine environments, marine mammals, fisheries conservation and other biological/mineral/oil resources,
- law of the sea, the retreating sea ice, continental shelf claims,
- territorial claims and border disputes on both land and at sea,
- peace and security, dispute settlement,
- jurisdictional and other issues with regard to the exploration, exploitation and shipping of oil, gas and minerals, bio prospecting,
- trade law, potential shipping lines through the northwest and northeast passages, maritime law and transportation law, and
- the roles and actual involvement of international organizations in the Polar Regions, such as the Arctic Council, the Antarctic Treaty System, the European Union, the International Whaling Commission, the Nordic Council, the North Atlantic Treaty Organization, and the United Nations, as well as NGOs.
The papers in this volume are based on presentations at the ninth symposium in Akureyri in October 2016.
This article provides an analysis of the environmental challenges presented by coastal development on the Chinese coast of the Yellow Sea, and, in particular, its effect on migratory shorebirds. It reflects on the rate of coastal development in China and its impact on intertidal wetlands, including what is being done, from a legal perspective, to address the declines. Existing regulatory measures are examined and it is argued that strategic environmental assessment needs to be given greater attention by the Chinese authorities. In addition, principles of conservation such as participatory management need to be fully embraced to empower local communities to restore degraded sites, monitor birdlife, and, where necessary, challenge inappropriate development activities through the courts. These initiatives, coupled with the eventual enactment of a new national wetland law in China, should strengthen the response to the threats and help arrest some of the declines in shorebird populations.
Ben Boer, Benoit Mayer and Tianbao Qin
Brian J Preston
Litigation raising climate change issues has increased in the number and types of cases across a growing number of national and international jurisdictions. An emergent trend is litigation that invokes particular legal rights to address climate change issues. Referred to collectively in this article as ‘environmental rights,’ these include rights established under the public trust doctrine, as well as within the realms of constitutional and human rights, including the right to life and right to a quality environment. This article surveys the development of climate change litigation—in various jurisdictions around the world—in which parties have sought to invoke these environmental rights. In addition to examining how climate change litigation has adapted rights-based claims made in earlier, more traditional litigation, this article reviews recent significant cases and examines how this growing body of case law is contributing to an expansion in the content of fundamental rights in the climate change context.
David J Devlaeminck
The legal principle of reciprocity plays a strong role in the law of international watercourses in both bilateral and multilateral contexts. China, primarily an upstream state, shares transboundary rivers with 14 neighbouring states. These shared rivers are governed by a variety of treaties and soft law documents, with China preferring to take a bilateral approach. Building on previous research, this article aims to elaborate on the role that reciprocity has played in the development, maintenance and interpretation of the law of international watercourses and then applies this to China’s transboundary water treaties. For these purposes, this analysis focuses on China’s approach to sovereignty on its transboundary waters and the substantive, procedural and dispute settlement rules of China’s transboundary treaties, as well as future developments, including the influence of the concept of ‘common interests’ on China’s practices. There have been significant developments in China’s transboundary water cooperation, as transboundary waters are increasingly important for China’s development. The article concludes with the example of the China-led Lancang-Mekong Cooperation Mechanism, highlighting its reciprocal characteristics and pathways for future development.
Benjamin J. Richardson
Climate change has multifaceted aesthetic dimensions of legal significance. Global warming alters the aesthetic properties of nature, and further aesthetic changes are precipitated by climate mitigation and adaptation responses of impacted societies. The social and political struggles to influence climate change law are also influenced by aesthetics, as environmental activists and artists collaborate to influence public opinion, while conversely the business sector through its marketing and other aesthetic communications tries to persuade consumers of its climate-friendly practices to forestall serious action on global warming. This article distils and analyses these patterns in forging a novel account of the role of aesthetics in climate change law and policy, and it makes conclusions on how this field of law should consider aesthetic values through ‘curatorial’ guidance.
Ronald B. Mitchell
Climate law has become a vibrant legal field, offering scholars and practitioners increasingly deep analyses of what climate law is, how it is changing, what is driving those changes, and what those changes mean at the international, national, and local level. The field has elaborated and debated numerous climate-specific issues, including geoengineering, adaptation, and loss and damage. Scholars also have analysed the application of broad legal principles to the climate realm and have examined the intersection of climate law with other disciplines, especially economics and political science. I review these important accomplishments and then argue that the field could build on them in two ways. First, many opportunities exist to incorporate insights from economics, political science, and other disciplines, increasing the range of perspectives reflected in our understanding of how climate law works and how it might be improved. Second, opportunities exist for climate law to learn more from experience with other realms of environmental and non-environmental law as well as with other forms of governance. Pursuing both types of opportunities can foster the field’s continuing development.
Benoit Mayer’s new book The International Law on Climate Change is founded on the premise that the principle against transboundary harm is the core principle of climate law. Here, I show that premise to be mistaken. The principle against transboundary harm does not apply to the problem of climate change because climate change is not a transboundary problem. Even if the principle were applicable to climate change, it has been displaced by the climate change treaty regime. Because climate change is in fact a “commons” problem, the core principle of climate law is, or should be, that greenhouse gas emissions must be charged to the polluter (the polluter pays principle).
Cinnamon P. Carlarne and Mohamed S. Helal
As international climate change law approaches its third decade of existence, the field continues to evolve and prove resilient in the face of daunting political, technical, and economic challenges. Moving forward with efforts to structure effective responses to climate change requires scholars and policymakers to engage with the reality that international cooperation on climate change continues to lag. Early efforts to address climate change presumed the existence of an international community that would facilitate the level of cooperation needed to structure effective solutions to a massive and complex collective-action problem. This vision of the international community, however, is an illusion the reliance on which may hamper efforts to think critically about how to address the causes and consequences of climate change. Here, we deconstruct the idea of a cooperative, international community as an operative basis for international climate change law, with the hope of facilitating increasingly open conversation around effective and sustainable modes of cooperation in the future.
What are we trying to achieve through our scholarship? It appears that most scholarship in climate law seeks to describe ongoing developments by using, inter alia, doctrinal and comparative methodologies. This article argues that, in addition to these ‘mainstream’ scholarly interventions, a critical scholarship in climate law should be, and is, developing. By questioning the assumptions on which climate law is developed, assessing the relations between law and power, or revealing long-overlooked paradoxes, among other topics, critical scholarship broadly conceived could provide innovative and interesting insights that help to achieve a more complete understanding of climate law.
David M. Driesen
While the law of climate disruption constitutes a field of positivist study, the normative legal theory of climate disruption remains poorly understood. Many scholars treat climate-disruption law as another branch of neoclassical law and economics. This article argues that this approach does not fit climate law well and proposes an economic dynamic theory that provides a broad and useful framework for thinking about climate-disruption law and many other fields of law.
The UN climate regime is a domain of international environmental law (IEL) that has developed in distinctive ways. Applying insights from the work of Michel Callon, climate change is a ‘hot’ situation characterized by ongoing controversy, making it difficult to develop stable and sustainable legal frameworks to manage this state of flux. Building on Elizabeth Fisher’s work positing that environmental law has qualities of ‘hot’ law, this article argues that, in the context of the UN climate regime, the ‘hot’ nature of climate law is compounded by the geopolitical tensions among states in IEL, particularly the deep fault lines between developed and developing states. The novel legal and regulatory solutions that have been experimented with to address issues of differential treatment reflect attempts to manage and contain these ongoing controversies. The UN climate regime yields insights into the promises and pitfalls of designing international legal frameworks to respond to highly contested and divisive issues in a context in which states create, implement, and enforce legal rules.
Natalie L. Dobson
Amidst the lively discussion on legal fragmentation and climate change, this article seeks to highlight the windows for the potential interaction of jurisdictional and environmental norms. This is relevant for climate-protective trade measures, which, it is argued, are not exhaustively regulated by WTO law. Exploring the contours of ‘climate change jurisdiction’ in customary international law, the article considers how the traditional jurisdictional principles may be operationalized in the untested territory of cumulative and uncertain environmental harm. With their origins in criminal and economic law, the jurisdictional principles were not originally designed for these challenges. This paper argues that the environmental norm of precaution, which originated out of a need to respond to complex threats, should have a role to play. Precaution governs issues of state regulatory competence in the face of scientific uncertainty. Particularly in relation to questions of foreseeability and causation, this norm may be helpful in navigating the application of the abstract jurisdictional principles, providing opportunities for synergy in the crystallization of the climate change jurisdiction.
The UN climate regime has served as the focal point for interstate cooperation on climate change in the political and legal domains for the last twenty-six years. However, since the lead-up to the Paris Agreement, the regime’s interstate elements have been complemented by an evolving transnational sphere of governance in which sub-national and non-state actors engage in voluntary cross-border initiatives. These initiatives serve two key functions: first, they facilitate and implement climate action at the sub-national level and in the private sector, and second, they promote transnational normative frameworks which require members to take active steps to address climate change. This article describes how the UN climate regime has developed to recognize transnational climate governance initiatives, and it reflects on the implications of this development for legal scholarship on international climate change law.
Christopher Campbell-Duruflé and Sumudu Anopama Atapattu
The Advisory Opinion of the Inter-American (IA) Court of Human Rights on Environment and Human Rights, released in February 2018, has the potential to usher in a new era for the relationship between climate law and international human rights law. This article begins with the Inuit Petition submitted to the IA Commission on Human Rights in 2005 to identify three legal challenges which it brought to light on the application of the international human rights framework to climate change: enforceability, causality, and extraterritoriality. By relying on examples from the Human Rights Council and the Paris Agreement negotiations, we show that these three issues continue to have an impact on the relationship between climate law and human rights. We then draw attention to the groundbreaking character of the IA Court’s Advisory Opinion, and in particular to the finding that the American Convention on Human Rights gives rise to an autonomous right to a healthy environment and to state duties that are both preventive and extraterritorial in nature. We suggest that the IA Court’s revisiting of the three legal hurdles provides an opportunity to close the gap between the disciplines of international human rights and climate law.
In his essay on the thesis of my book, Alexander Zahar objects to my characterization of customary international law as one of the sources of the international law on climate change and, in particular, to my conclusion about the relevance of the no-harm principle. I disagree. In the first part of his essay, Zahar’s analysis of the no-harm principle is limited to arguments by analogy, but a valid international legal argument can be based on deduction from axiomatic premises of the international legal order. In the second part of his essay, Zahar claims that the UNFCCC regime excludes the application of the no-harm principle when, in reality, the UNFCCC regime really seeks to facilitate the implementation of general international law.
The EU ETS is the cornerstone of the European Union’s climate policy. The EU ETS will play a decisive role in the European Union plan to meet its commitments under the Paris Agreement. In November 2017, following more than two years of negotiations, EU member states and the European Parliament reached a final agreement on the revision of the EU ETS for the period 2021–2030. The final agreement struck an important, ambitious balance on a number of measures designed to ensure that the EU ETS achieves its legislative aims of promoting emission reductions in a cost-effective manner. The negotiations also provide a number of policy lessons for future negotiations relating to the role of EU institutions and the rules for free allocation which will be important for the EU ETS to meet its legislative objectives.1
Michael Faure and Jing Liu
We argue that climate law has specific features—including scientific complexity, a strongly transboundary nature, and long-term effects—that make it more challenging to study than other more traditional domains of environmental law. As a consequence, an interdisciplinary perspective may be needed even more for climate law than for the traditional study of environmental law. Climate law is to some extent underestimated by scientists, who should realize that for effective mitigation of greenhouse gases and adaptation to climate change, an optimal design and enforcement through climate law is necessary. Climate law can be expected to become more important with the implementation of the Paris Agreement, and for that reason climate lawyers should receive a more prominent position in the international policy arena of climate change.