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International Environmental Law: of Sovereignty, Complexity, and Grotian Moments

In: Grotiana
Author:
Jutta BrunnéeDean & University Professor, Faculty of Law, University of Toronto, Toronto, Canada, jutta.brunnee@utoronto.ca

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Abstract

The Grotian Moment concept provides a lens through which to reflect on the enduring hold of state sovereignty on international environmental law. The article traces the development of the field’s customary rule framework and canvasses efforts to push its conceptual boundaries beyond the inter-state paradigm. Given their dominant role in the field, the article then provides a brief overview of treaty-based approaches to the development of international environmental law. It focuses on the global response to the climate emergency, as illustrative of how international environmental law has evolved in response to the challenges posed by complex crises. The article concludes by suggesting that international environmental law is unlikely to see a Grotian Moment at the level of customary international law, but that it does hold potential for the new thinking and new approaches that could produce a ‘quasi’ Grotian Moment.

Abstract

The Grotian Moment concept provides a lens through which to reflect on the enduring hold of state sovereignty on international environmental law. The article traces the development of the field’s customary rule framework and canvasses efforts to push its conceptual boundaries beyond the inter-state paradigm. Given their dominant role in the field, the article then provides a brief overview of treaty-based approaches to the development of international environmental law. It focuses on the global response to the climate emergency, as illustrative of how international environmental law has evolved in response to the challenges posed by complex crises. The article concludes by suggesting that international environmental law is unlikely to see a Grotian Moment at the level of customary international law, but that it does hold potential for the new thinking and new approaches that could produce a ‘quasi’ Grotian Moment.

1 Introduction

The idea of the Grotian Moment is one of the more evocative – and elusive –notions in international law discourse. A minimalist definition, focused on the evolution of international law, is employed by Tom Sparks and Mark Somos in their introduction to the special issues of Grotiana on Grotian Moments across international law. They are interested in ‘rapid crystallizations of new rules and doctrines of customary international law.’1 Many commentators appear to consider that for change in customary law to amount to a Grotian Moment it must be tied to a significant change in the world.2 More than that, a true Grotian Moment, so suggest many observers, is one that entails a (rapid) paradigm shift in international law.3

Indeed, B.S. Chimni, in his contribution to this collection of inquiries into Grotian Moments, invites us think of them as developments that ‘presage the arrival of a new international order,’4 much like the emergence of sovereign states and of capitalist modes of production in Europe that prompted Grotius to articulate legal concepts that could carry the Dutch colonial project,5 and that brought about the emergence of colonial international law.6 A new Grotian Moment, therefore, would involve nothing less than a ‘radical break from the past in the spheres of production, spatial organization and law,’7 and thus the emergence of a post-imperial and post-capitalist international law.8 Chimni allows that developments that ‘profoundly impact the “logic of territory” or/and the “logic of capital” without signalling the arrival of a new international order’ might also count as Grotian Moments of sorts.9 Hence, although neither a post-capitalist nor a post-imperial order emerged, Chimni considers that decolonization amounts to this kind of ‘quasi’ Grotian Moment, in part because it ‘extended the principle of sovereignty to the colonized world.’10 Finally, Chimni suggests that mainstream international law scholarship uses the concept more expansively, qualifying various developments that have chipped away at the idea of absolute sovereignty, such as the outlawing of war, or the emergence of new fields, like international human rights law or international environmental law, as Grotian Moments.11

I highlight Chimni’s categories because they help illuminate why international environmental law has not seen a Grotian Moment to date. As I hope to show in this short article, this holds true regardless of which definition one adopts, save perhaps for what Chimni describes as the mainstream conception.

For the purposes of this article, I will set the latter conception aside. To be sure, the emergence of international environmental law is of great significance. But it strikes me that labeling the emergence and growth of the field, or the resultant gradual chipping away at state sovereignty, as Grotian Moments rather leaves matters in the eye of the beholder. In this vein, the Grotian Moment is largely a phrase international lawyers can deploy to expound on how international law might or should evolve in response to material or normative change in the world, or to underscore the significance and relative speed of legal developments in hindsight.12 There is nothing wrong with this usage, of course. But I find the narrower conception of the Grotian Moment as a significant, rapid shift in customary international law, and Chimni’s substantive conception of the Grotian Moment as a shift of a particular kind (indexed against the ‘original Grotian Moment,’ as it were), to be more productive lenses for reflecting on the patterns of change in international environmental law.

The first lens – the Grotian Moment as a significant and rapid shift in custom – brings the nature and pace of change in customary international environmental law into focus. In turn, Chimni’s substantive conception helps illuminate why international environmental law has not seen a Grotian Moment: it would entail nothing short of the dislodging of the foundational features of the international legal order Grotius helped bring about. International environmental law’s conceptual framework and modes of lawmaking are firmly anchored in state sovereignty. This sovereignty-based order both sits uneasily with the indivisibility of the global environment and resists the rapid and transformative legal change that the complexity of today’s interconnected, urgent concerns demands. Thus, Chimni’s proposition that a Grotian Moment would require a ‘radical break from the past in the spheres of production, spatial organization and law’ is equally applicable to international environmental law.13 And indeed, some observers argue that nothing less than such a paradigm shift is required now,14 as human activity has pushed the Earth to a series of tipping points, such that humanity has become a ‘planetary-scale geologic force,’ and the world has entered a new geologic epoch – the Anthropocene.15 Since the mid-twentieth century, so goes the argument, human impacts have accelerated and globalized to such an extent that the socio-economic system and the biophysical Earth system are now inextricably linked.16 The climate crisis is a prominent example of human development pushing against planetary boundaries, with starkly unequal distributions in development, contributions to the crisis and exposure to harmful impacts.17

Seen from an Earth systems vantage point, then, a true Grotian Moment in international environmental law would entail transcending its sovereignty-focused framework. Yet, from the vantage point of the current international order, such a shift would seem akin to defying gravity. To date, in any case, international environmental law has not seen any rapid development of customary international law, let alone paradigm shifts. The stock of rules of customary international environmental law remains relatively small, and closely tied to state sovereignty. To the extent that new custom has developed, it has done so gradually and incrementally. Rather than through the development of generally applicable rules, the evolution of international environmental law has occurred through other modes of normative development, including treaty-based lawmaking and non-binding standard setting. Environmental treaty regimes proceed incrementally too.18 Indeed, they are specifically designed ‘to evolve over time in response to new information, new problems, and changing perceptions and values.’19

Chimni’s observations are instructive also because the development of international environmental law and colonialism, as well as the subsequent efforts to decolonize international law, are intertwined.20 Colonialism, needless to say, entailed the exploitation and often ravaging of natural resources in the Global South,21 precipitating environmental decline and entrenching conditions of economic disadvantage or even incapacity.22 Colonialism also underpinned some of the antecedents of international environmental law. Among the earliest international agreements aimed at nature protection were treaties adopted by colonial powers to protect fauna and flora in Africa.23 Fast forward to the 1970s: when modern international environmental law began to evolve in the wake of the 1972 Stockholm Conference on the Human Environment,24 newly independent and developing countries sought to defend their hard-won sovereignty over their natural resources.25 Unsurprisingly, these countries were suspicious of industrialized countries’ efforts to promote international environmental laws that might curb their development goals.26 Many developing countries distrusted international environmental law, and perceived it as a green variant of neo-colonialism.27 Industrialized states, in turn, demanded that developing nations cooperate to protect the global environment, while at the same time resisting recognition of historical or differentiated responsibility for environmental degradation. This North-South tension remains inscribed in international environmental law and policy to this day.28

In this short article, I use the Grotian Moment concept as a lens through which to reflect on the enduring hold of state sovereignty on international environmental law. I begin by tracing the development of the field’s customary rule framework and canvass efforts to push its conceptual boundaries beyond the inter-state paradigm. Then, given their dominant role in the field, I provide a brief overview of treaty-based approaches to the development of international environmental law. Here, my focus will be on the global response to the climate emergency, as illustrative of how international environmental law has evolved in response to the challenges posed by complex crises. I conclude by suggesting that international environmental law is unlikely to see a Grotian Moment at the level of customary international law, but that it does hold the potential for the ‘new thinking and new norms and institutions’ that could produce a ‘quasi’ Grotian Moment.

2 Customary Law – a History of Incremental Change

International environmental law as we know it today first emerged through customary law.29 But it did not burst onto the scene as the result of a Grotian Moment. Rather, its rule framework grew incrementally from international law’s conceptual building blocks – principles defining sovereign rights and duties, and their mutual limitation. Thus, the 1941 arbitral decision in the Trail Smelter case,30 often referenced as a point of origin of international environmental law and of its foundational no harm rule, was not a Grotian Moment. To be sure, it became an influential focal point for argumentation and helped shape the subsequent evolution of the field.31 But its central proposition – that states do not have the right to use or permit the use of their territory in such as manner as to cause significant transboundary harm – was an application of well-established international and domestic law principles to a situation involving transboundary pollution.32 The no harm rule’s lineage can be traced back to earlier articulations of the rights and obligations attaching to territorial sovereignty,33 such as the 1928 Island of Palmas award’s balancing between one state’s territorial sovereignty and another’s territorial integrity,34 and articulations of the standard of due diligence applicable to states’ duties to protect the rights of other states.35 From these sovereign rights and obligations and the attendant standard of due diligence also emerged a number of related procedural rules of customary international environmental law, such as duties to notify and consult other states with respect to pending harm.36

The gist of this brief sketch is that international environmental law has its roots in general rules designed to strike a balance between states’ competing sovereign rights. The slow pace of customary international environmental law’s development is underscored by the fact that, up until the 1990s, the number of judicial decisions touching on the field had barely increased beyond the ones listed above.37 What is more, leaving aside the Trail Smelter arbitration (involving transboundary air pollution) and the 1957 Lac Lanoux arbitration (concerning the rights and obligations of neighbouring upstream and downstream states),38 the cases typically invoked by international environmental law scholars were not cases about the environment, but cases about sovereignty, such as the Island of Palmas award and the 1949 Corfu Channel case.39 One addition to the skinny canon of early ‘international environmental law’ cases were the 1974 Nuclear Tests cases, which did have an environmental dimension (assertions of a right to be free from nuclear fall-out), but did not address the issues on the merits.40

The jurisprudence of the International Court of Justice (icj) provides a convenient window on the slow and incremental development of custom in the environmental field. It was not until its 1996 Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons – some fifty-five years after the Trail Smelter case – that the icj finally had an opportunity to confirm that the no harm rule was ‘part of the international law relating to the environment.’41 The Court reiterated this conclusion in its 1997 decision in the Gabčíkovo-Nagymaros case,42 its 2010 judgement in the Pulp Mills case,43 and in its 2015 decisions in the Costa Rica v Nicaragua / Nicaragua v Costa Rica cases.44

Through these decisions, the icj helped clarify the development of customary international environmental law. First, it confirmed that states’ duties extend beyond the inter-state context, being applicable to impacts in other states and in ‘areas beyond national control.’45 Second, the Court confirmed that states are obligated to ‘respect the environment,’ rather than only territorial or other sovereign interests of states.46 Third, the icj confirmed that states are obligated to take steps to prevent harm, while also making clear that this obligation has venerable roots. The Court made a point of noting that the ‘principle of prevention, as a customary rule, has its origins in the due diligence required of a State in its territory,’ connecting the principle back to its judgment in the Corfu Channel case.47 Finally, the icj sought to concretize the obligation to prevent harm by fleshing out the requirements of due diligence and states’ attendant substantive and procedural duties.48 Indeed, the Court found that a new procedural duty had emerged, such that ‘it may now be considered a requirement under general international law to undertake an environmental impact assessment’ where there is a risk of significant transboundary impact.49

Unsurprisingly, the Court’s decisions on environmental harm prevention proceeded incrementally and followed the developments of international environmental law that had been pursued through a range of other forums since the 1970s. The perhaps most influential restatement of the no harm rule is found in Principle 21 of the 1972 Stockholm Declaration on the Human Environment.50 It stipulates that states have ‘the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’51 The phrasing of Principle 21, reaffirmed in the 1992 Rio Declaration on Environment and Development,52 and in a series of multilateral environmental agreements (mea s),53 served to highlight that states are obligated to prevent transboundary harm to the environment, and that this obligation extends also to the global commons. In turn, the interplay between the substantive and procedural dimensions of harm prevention has been a central feature of the growing number of mea s adopted since the 1980s,54 and has been at the heart of the International Law Commission’s (ilc) efforts concretize the general obligation to prevent transboundary environmental harm through a set of draft articles adopted in 2001.55

3 Pushing the Boundaries of Customary Law

As the preceding section has illustrated, over the course of several decades, the harm prevention rule was established as the core rule of customary international environmental law and then very gradually elaborated. What, then, of efforts to push the conceptual boundaries of the ‘international law relating to the environment,’56 and to extend the normative optic beyond the inter-state paradigm?

With respect to general international law, the Rio Declaration may serve as a convenient reference point, for it represented the last major international effort to articulate an expanded set of generally applicable principles.57 Like the Stockholm Declaration, the Rio Declaration is a non-binding instrument. It encapsulates existing customary norms, such as the obligation to prevent environmental harm to other states and areas beyond jurisdiction and the related procedural obligations,58 as well as emergent norms and principles. Chief amongst the latter are principles that seek to shift international law’s approach from prevention to precaution,59 instantiate the need for sustainable development and consideration of future, intergenerational impacts of current activities,60 and link states’ responsibilities to address global concerns to differential contributions, impacts and capacities.61

Whether any of these normative expansion efforts would amount to paradigm shifts is an interesting question. To my mind, each of these concepts would entail additional limitations on sovereignty within the same paradigm,62 rather than a Grotian Moment. The emergence in customary international law of a principle of common but differentiated responsibilities might signal further progress in the decolonization of international law, and thus what Chimni referred to as a ‘quasi’ Grotian Moment.63 However, given that this principle, as understood by developing countries, would entail a recalibration of states’ responsibilities for global environmental protection in light of differential contributions, impacts, and capacities,64 it too remains within the sovereignty paradigm. Alas, since none of the newer principles have grown into customary international law,65 the question of whether these changes would amount to Grotian Moments need not be pursued here.

The precautionary approach to environmental protection made some inroads, having become woven into the harm prevention rule through the inherently contextual due diligence standard, which becomes more demanding in the face of elevated risks and potential for irreversible harm.66 Yet, the precautionary principle itself, which stipulates that lack of full scientific certainty shall not be used as a reason to postpone harm prevention measures,67 has not emerged as a freestanding norm of general international law.68 Likewise, the concepts of sustainable development,69 intergenerational equity and common but differentiated responsibilities have not acquired customary law status.70 Nonetheless, like precaution, each of these concepts has been influential in shaping the development of international environmental law, particularly in the context of treaty-based regimes. For example, the global treaties that were adopted along with the Rio Declaration at the 1992 Rio Conference each contain references to these principles in their preambles,71 and in the case of the UN Framework Convention on Climate Change (unfccc) also in an operative article on principles that are to guide parties in pursuing the goals of the treaty.72

The upshot is that the only changes in customary international environmental law over the last several decades occurred in the context of the harm prevention rule: through the emergence of a new procedural obligation to undertake an environmental impact assessment, and through the expansion of the harm prevention rule itself to encompass the environment of areas beyond national jurisdiction.

The latter development merits a closer look, since it does quite literally push the boundaries of states’ environmental harm prevention obligations under customary law beyond the rule’s roots in balancing states’ respective sovereign rights. In this sense then, the harm prevention rule has undergone a significant change. After all, the default rule in areas beyond national jurisdiction was freedom to use, including the freedom to exploit and pollute, subject to the limits agreed among states.73 The expanded harm prevention rule established a new background rule, requiring all states to respect the environment.74

However, although the obligation to prevent harm to the environment of areas beyond national jurisdiction is firmly established in general international law, the scope of the obligation remains fuzzy. For example, does the obligation apply only to (geographic) ‘areas’ beyond national jurisdiction, such as the high seas, or does it apply more broadly to natural systems, such as the global climate system? One might assume that natural systems would be protected by this rule, but there has been little in the way of state practice that would allow a firm conclusion as to its scope.

Similarly, it is unclear to whom the obligation is owed. It stands to reason that the obligation to prevent harm to areas beyond national jurisdiction or control is owed erga omnes,75 such that ‘all States can be held to have a legal interest’ in compliance with it.76 But, again, there is little direct practice that would confirm the erga omnes nature of the obligation.77 Some support for this proposition can be found, for example, in the advisory opinion of the itlos’s Seabed Chamber on Responsibilities in the Area.78 According to the Law of the Sea Convention, the ‘Area and its resources are the common heritage of mankind.’79 The Seabed Chamber, noting that the International Seabed Authority was tasked with acting on behalf of ‘mankind as a whole,’ observed that each ‘State Party may also be entitled to claim compensation [for harm to the Area] in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and the Area.’80 It supported this observation by referring to Article 48 of the ilc’s Draft Articles on State Responsibility, which envisages circumstances in which states other than those directly injured could invoke another state’s responsibility for breaches of obligations owed erga omnes, ‘to the international community as a whole,’ or erga omnes partes, to all treaty parties.81

Finally, assuming the obligation is owed erga omnes, a question remains as to the circumstances under which a state would be entitled to hold another accountable for a failure to take appropriate harm prevention measures. While some of the icj’s recent judgments suggest a willingness to contemplate common interest standing for obligations erga omnes partes,82 the Court has not answered the standing question specifically for obligations erga omnes arising under general international law.83 The assessment by one observer that ‘there is limited evidence’ to suggest that public interest standing ‘has been accepted by states as part of customary international law’ arguably remains accurate today.84

In sum, the expanded harm prevention rule was hardly the product of a Grotian Moment. First, there was no rapid change in the law. Second, the precise parameters and legal implications of the parameters and legal implications of the obligation to prevent harm to the commons remain unsettled. Ultimately, the core rule of international environmental law remains firmly tied to the sovereignty paradigm from which it originated.

4 Beyond Custom: Treaty-Based Regimes as Catalysts of Change

Most contemporary international environmental problems do not revolve around discrete transboundary impacts, or even discrete issues. They are complex problems, with a series of traits that render them resistant to resolution, such as multiple, interconnected, dynamic variables, accounting for a dynamic problem situation; incompleteness of knowledge or understanding of the situation; and polycentricity of the problem, implicating states, sub-state and non-state actors.85 Climate change, for example, is not a single problem, but has intersecting and constantly evolving environmental, economic, security and social and intergenerational justice aspects, to name but a few.86 It is readily apparent that the customary law framework cannot carry the burden of guiding global climate action or addressing other similarly complex challenges. While it can help resolve situations involving transboundary impacts,87 customary law would be hard pressed to guide the necessary proactive, long-term interaction between more than 190 states, let alone sub-state or non-state actors. As a result, mea s establishing environmental regimes have come to play a dominant role in contemporary international environmental law.

A key strength of treaty-based regimes in tackling complex environmental problems is that they are not one-off agreements between states, but rather open-ended ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge.’88 mea s typically establish treaty-bodies for ongoing exchange and negotiation among parties, enabling the long-term interaction among regime participants that is indispensable in dealing with complex, inherently dynamic environmental concerns, and allow for non-state actor involvement. In other words, treaty-based environmental regimes serve to institutionalize collective responses to complexity and provide for extensive procedural elements, including an array of lawmaking and standard setting, as well as regime-specific compliance and accountability processes.

The most common approach to building dynamic, adaptable environmental regimes today follows the framework-protocol model of treaty design. This model has proven to be well suited to initiating the regime building process by articulating a common concern, and shaping a collective approach over time.89 The initial step in the regime building process is the adoption of a framework convention, which sets out key parameters and prerequisites for subsequent regime development.90 In the framework treaty, parties adopt basic obligations concerning matters such as scientific research and exchange of information, and establish a legal and institutional framework for future action. The framework convention thus provides the legal anchor for the development of protocols that contain more specific commitments and implementation mechanisms.

The framework-protocol model is premised upon incrementalism: states can begin to engage around a problem without waiting for agreement on all of its dimensions, let alone what response action is required. The expectation is that the processes set in motion by the framework convention will enmesh states in a dynamic that leads towards increasingly ambitious commitments. This dynamic is aided by the creation of the aforementioned institutional machinery, consisting of plenary bodies that meet regularly to consider the further development of the regime, bodies that facilitate exchange among scientific or technical experts, and a secretariat that supports the operation of the regime. These features, and the long-term nature of environmental regimes, have prompted some observers to compare them to international organizations.91

The lawmaking processes and further development of a regime are usually in the hands of the plenary bodies established by the framework convention and protocols. Gradual development of the regime is facilitated through lawmaking processes that are designed to strike a balance between the protection of state sovereignty through consent requirements and the importance of timely collective action.92

Formal consent-based processes continue to play a significant role. Notably, when an agreement is amended, or when an additional treaty, such as a protocol, is adopted, individual states are bound only when they consent to these instruments.93 But mea s also provide for a variety of decision-making processes meant to facilitate collective standard setting. For example, mea s tend to allow for technical standards to be changed or even expanded with effect for all parties, except those that explicitly opt out.94 Furthermore, a good deal of treaty-based standard setting emerges not through formal amendments or protocols, but through decisions of plenary bodies, without subsequent formal consent by individual states. These decisions commonly contain detailed standards or procedural requirements and even mandatory language, notwithstanding the fact that they are not legally binding.95 Although such non-binding standard setting too is subject to extensive negotiation, it nonetheless allows for more dynamic regime development than processes requiring formal consent would.

Of course, treaty-based approaches are not a panacea for tackling complex environmental problems through international law. The mismatch between sovereignty-based ordering and the need for dynamic and holistic approaches remains. But mea s have been able to bridge the gap to some extent.

For example, the framework-protocol approach was successful in addressing the complexities of pan-regional transboundary air pollution. Thus, the Convention on Long-Range Transboundary Air Pollution was able to draw 51 states into an expanding regime designed to deal with transboundary pollution the origins of which are ‘at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.’96 Multiple protocols served to break the problem down into substance-specific commitment regimes,97 thereby facilitating significant reductions in sulphur, nitrogen oxide, and volatile organic compound emissions, among others.98

Treaty regimes have also tackled the challenge of protecting the environment beyond the limits of national jurisdiction that customary law has been hard pressed to address. Treaties on marine environmental protection are good examples.99 In the context of global problems too, the framework-protocol approach has been deployed with some success. Indeed, the ozone regime is often referred to as the most successful of all international environmental regimes.100 The 1985 Vienna Convention on the Depletion of the Ozone Layer was supplemented through the 1987 Montreal Protocol, which was then repeatedly amended and adjusted to include a growing range of ozone depleting substances and to speed up the phase-out of these substances.101 A recent study suggests that the measures catalyzed by the ozone regime will lead to the recovery of the Earth’s ozone layer around the middle of the century.102

In part, these successes are the result of departures from ‘one-size-fits-all’ commitments: mea s have been able to facilitate responses to global concerns by allowing for differentiated commitments, notably as between industrialized and developing countries.103 The Montreal Protocol, for example, permitted developing country parties to achieve phase-out goals at a slower pace than industrialized states.104 In turn, the climate regime specifically acknowledged that parties ought to cooperate in tackling climate change ‘in accordance with their common but differentiated responsibilities and respective capabilities’ and that developed country parties ought to ‘take the lead in combating climate change.’105 The 1997 Kyoto Protocol gave expression to the latter proposition, by enshrining an initial five-year round of binding emission reduction commitments only for industrialized countries.106 However, the North-South dynamics averred to in the introduction of this article ultimately contributed to the need for a significant shift in the approach of the climate regime.107 Among other things, it proved impossible to amend the Kyoto Protocol so as to extend binding reduction commitments to developing country parties, notably the ones that in the meantime had emerged as the largest, and rapidly growing, sources of greenhouse gas emissions.108

Climate change, then, exceeded the change-catalyzing capacity of the framework-protocol model as it then stood. The regime was hamstrung by its practice of consensus decision making and need for consent to new commitments. In response to this dilemma, the 2015 Paris Agreement,109 also adopted under the auspices of the unfccc and effectively supplanting the Kyoto Protocol with a global commitment regime, introduced a step change in the climate regime’s approach.

The Paris Agreement calls upon states to curb greenhouse gas concentrations in the atmosphere with a view to averting dangerous temperature increases.110 To this end, all states are to undertake progressively more ambitious efforts.111 However, states’ contributions to ‘the global response to climate change’ are to be ‘nationally determined.’112 Thus, while parties are obligated to ‘prepare, communicate and maintain successive nationally determined contributions’ (ndc s),113 these ndc s are not legally binding under international law. The Paris Agreement merely requires parties to ‘pursue domestic mitigation measures, with the aim of achieving the objectives’ of their ndc s.114 Furthermore, parties are subject to detailed procedural requirements designed to ensure the transparency and accountability with respect to their ndc s and their performance in implementing them.115

The Paris Agreement is designed to side-step the challenges both of resolving on what basis commitments of developing and industrialized countries ought to be differentiated and of negotiating binding obligations that states are then required to implement. It relies on a more dynamic approach, which enables individual states to make policy choices in light of the Paris Agreement, and to adapt their commitments without the delays inherent in negotiation and entry-into-force requirements. In other words, the goal of the Paris Agreement is to inspire and orchestrate the required shifts towards more ambitious climate action by providing common goals and principles for action, and processes that facilitate international interaction and accountability.116 It is a shift in approach that reflects the challenges of international law-making in conditions of complexity.

5 Conclusion

The notion of the Grotian Moment is a useful analytical device for reflection on the evolution of international environmental law. It draws our attention to the field’s enduring challenge: promoting environmental protection – a goal that demands a dynamic and holistic approach – through a sovereignty-focused legal order.

The tracing of international environmental law’s evolution in this article has illustrated that today’s multifaceted, interconnected, continuously evolving challenges not only are beyond the reach of existing customary rules, but also may outpace customary law’s capacity for change. So far, changes in customary international environmental law have occurred slowly and incrementally, introducing only relatively modest adjustments to sovereignty-based rights and obligations. All indications are that Grotian Moments – rapid paradigm shifts in customary law – are highly unlikely in international environmental law. This goes for the emergence of rules that would better address the fraught history of North-South relations and recalibrate states’ responsibilities for global environmental protection in light of differential contributions, impacts and capacities. And, given industrialized and developing states’ shared investment in state sovereignty, the emergence of customary rules that prioritize Earth systems and their boundaries, rather than international law’s current territorial logic, seems even less likely.117

The Grotian Moment concept, understood as significant and rapid change in customary international law, is a sobering lens through which to consider international environmental law. But it may also be an unduly narrow lens, seeing as customary law seems ill equipped to address the accelerating climate and Earth systems crises. Thus, we might instead focus on Chimni’s ‘quasi’ Grotian Moments: ‘new thinking and new norms and institutions’ that ‘profoundly impact the “logic of territory’” or/and the “logic of capital” without signalling the arrival of a new international order.’118

Our best hope in this respect likely is the growing range of norm development processes and actors in international environmental law. Here, I have focused on mea s as the field’s most important sites for facilitating change and tackling complexity. mea s establish regimes designed to develop incrementally but dynamically, and to engage large number of states and other actors in this dynamism. The global climate regime, my main example in this article, has proven to be quite adaptable. The dual challenges of generating broad participation of states across the North-South divide and promoting ambitious commitments prompted a significant shift in the approach of the climate regime. This shift has been characterized as a move from a ‘top-down’ model of treaty design (i.e. binding commitments, to be implemented by states, and overseen by a treaty-based compliance system) to a ’bottom-up’ approach (i.e. nationally determined and internationally non-binding contributions towards achievement of the treaty goals).119 The change in approach certainly reflects ‘new thinking.’ And, in casting the climate regime as more an orchestrator of national, transnational, and non-state actions than a regulatory system, it both accommodates and dilutes the ‘logic of territory.’ This shift, then, may well be one of the most significant changes in the evolution of international environmental law – even a ‘quasi’ Grotian Moment in the face of complexity. But it is too soon to know for sure.

1

Tom Sparks and Mark Somos, ‘Grotian Moments: An Introduction’, Grotiana 42 (2021), 179–91, p. 179.

2

See e.g. Michael Scharf, ‘Grotian Moments: The Concept’, Grotiana 42 (2021), 193–211, pp. 194–5, 208–9; Dire Tladi, ‘Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?’ Grotiana 42 (2021), 335–53, p. 335 (noting, however, that the concept remains ‘rather obscure in international law’).

3

See e.g. Richard A. Falk, ‘The Interplay of Westphalia and Charter Conceptions of International Legal Order’, in: The Future of the International Legal Order. Volume 1: Trends and Patterns, ed. by Richard A. Falk and Cyril E. Black (Princeton, NJ: Princeton University Press, 1969), 32–72, at p. 32; B.S. Chimni, ‘The Grotian Tradition, Grotian Moment, and Decolonization: A twail Perspective’, Grotiana 42 (2021), 252–76, p. 266 (noting that, since the original Grotian Moment revolved around the emergence of the capitalist mode of production and the Westphalian system, “the term … should be confined to … a radical break from the past in the spheres production, spatial organization and law.”); Scharf, ibid., pp. 196, 208–10.

4

Chimni, ibid., p. 266.

5

Ibid, p. 252.

6

See generally Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).

7

Chimni, ‘The Grotian Tradition’, p. 266.

8

Ibid., at p. 276.

9

Ibid., at p. 266.

10

Ibid., at pp. 267, 276.

11

Ibid., at p. 267.

12

See Edward Jones Corredera, ‘Why International Lawyers Measure Time with a Telescope: Grotian Moments & Richard Falk’s Histories of the Future’, Grotiana 42 (2021), 212–228, pp. 224, 226.

13

See also Usha Natarajan and Kishan Khoday, ‘Environment’, in: Tipping Points in International Law: Commitment and Critique, ed. by Jean d’Aspremont and John D. Haskell (Cambridge: Cambridge University Press, 2021), 132-48, at p. 144.

14

Louis J. Kotzé, ‘Neubauer et al. versus Germany: Planetary Climate Litigation for the Anthropocene?’ German Law Journal 22 (2021), 1423–44, at p. 1428; Louis J. Kotzé et al, ‘Earth system law: Exploring new frontiers in legal science’ Earth System Governance 11 (2022), 1–9, at p. 8.

15

Will Steffen, et al, ‘The trajectory of the Anthropocene: The Great Acceleration’, The Anthropocene Review 2 (2015), 81–98, at p. 93.

16

Ibid.

17

See Natarjan and Khoday, ‘Environment’, p. 133.

18

For an overview, see Alan Boyle and Catherine Redgwell, Birnie, Boyle & Redwell’s International Law and the Environment, 4th edn (Oxford: Oxford University Press, 2021), pp. 14–38.

19

See Daniel Bodansky, ‘Thirty Years Later: Top Ten Developments in International Environmental Law’, Yearbook of International Environmental Law 30 (2019), 3–21, at pp. 4–5.

20

See Natarjan and Khoday, ‘Environment’, pp. 137–8; Karin Mickelson, ‘South, North, International Environmental Law, and International Environmental Lawyers’, Yearbook of International Environmental Law 11 (2000), 52–81, at p. 57–8. Interestingly, notwithstanding these connections, Third World Approaches to International Law (twail) scholarship has only relatively recently begun to focus on international environmental law. See Malavika Rao, ‘A twail Perspective on Loss and Damage from Climate Change: Reflections on Indira Gandhi’s Speech at Stockholm’, Asian Journal of International Law (2022), 1–19, at pp. 3–4; Usha Natarajan, ‘twail and the Environment: The State of Nature, the Nature of the State, and the Arab Spring’, Oregon Review of International Law 14 (2012), 177–99, at p. 182. Mickelson’s article remains an early touchstone piece.

21

See Natarajan and Khoday, ibid., at p. 137.

22

See e.g. M. Rafiqul Islam, ‘History of the North-South Divide in International law: Colonial Discourses, Sovereignty, and Self-Determination’, in: International Environmental Law and the Global South, ed. by Shawkat et al., (Cambridge: Cambridge University Press, 2015), 23–49, at p. 30. And see Mickelson, ‘South, North’, pp. 63–4 (citing the 1974 Cocoyoc Declaration adopted at the United Nations Environment Programme/United Nations Conference on Trade and Development Symposium on Resource Use, Environment, and Development Strategies).

23

See Mickelson, ibid., p. 58 (referring to the 1900 Convention on the Preservation of Wild Animals, Birds and Fish in Africa and the 1933 Convention on the Preservation of Flora and Fauna in Their Natural State). As Mickelson points out, these treaties responded to threats that European expansion visited upon the African continent, either directly, through hunting, or indirectly, through encroachment on habitat for agricultural or settlement purposes. See ibid., p. 59.

24

See Peter H. Sand, ‘Origin and History’, in The Oxford Handbook of International Environmental Law, 2nd edn, ed. by Jacqueline Peel and Lavanya Rajamani (Oxford: Oxford University Press, 2021), 50–66, at p. 56.

25

See Islam, ‘History’, pp. 34, 47–8.

26

See Rao, ‘A twail Perspective’, p. 7 (describing the work of the Founex Conference to foster agreement on the ‘nexus between development and environment’ in the lead-up to the Stockholm Conference); Sumudu Atapattu, ‘The Significance of International Environmental Law Principles in Reinforcing or Dismantling the North-South Divide’, in International Environmental Law and the Global South, 74–108, at p. 82.

27

See Natarajan and Khoday, ‘Environment’, p. 138.

28

See infra, notes 103–108 and accompanying text.

29

Of course, conservation agreements aimed at the protection of ‘useful’ species (e.g. fish, seals, or birds useful to agriculture) began to be adopted in the late nineteenth and early twentieth centuries, along with the aforementioned agreements aimed at the conservation of species in Africa. For an overview, see Sand, ‘Origin and History’, at pp. 51–5.

30

Trail Smelter Case (United States v Canada), Judgement of 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards, Vol. iii, p. 1905 (hereinafter Trail Smelter), available at: http://legal.un.org/riaa/cases/vol_III/1905–1982.pdf. The arbitration revolved around emissions from a Canadian smelter located in British Columbia, causing various kinds of harm south of the American border, in Washington State.

31

For a detailed analysis, see Duncan French, ‘Trail Smelter (United States of America/Canada) (1938 and 1941)’, in: Landmark Cases in Public International Law, ed. by Eirik Bjorge and Cameron Miles (Oxford: Hart Publishing, 2017), 159–88, at pp. 176–81 (on ‘repetition and myth-making’).

32

Trail Smelter Case, p. 1965 (opening the articulation of the no harm rule with the proposition that it arose ‘under the principles of international law, as well as of the United States’).

33

For a detailed tracing, see Jutta Brunnée, ‘Procedure and Substance in International Environmental Law’, Receuil des Cours 405 (2020), 75–240, at pp. 118–29.

34

See Island of Palmas Case, (Netherlands v United States of America), Award of 4 April 1928, pca Case No. 1925-01, p. 9, available at: https://pca-cpa.org/en/cases/94/, Reports of International Arbitral Awards, Vol. ii, p. 829 at p. 839.

35

See e.g. Alabama Claims of the United States of America against Great Britain, Award of 14 September 1872, Reports of International Arbitral Awards, Vol xxix, p. 125 (Alabama Arbitration) British Property in Spanish Morocco (Spain v U.K), Award of 1 May 1925, Reports of International Arbitral Awards, Vol. ii, p. 615.

36

See e.g. Lac Lanoux Arbitration (Spain v France), Award of 16 November 1957, Reports of International Arbitral Awards, Vol. xii, p. 281; Corfu Channel Case (UK v Albania), Judgement of 9 April 1949, icj Reports 1949, p. 4.

37

See also Bodansky, ‘Thirty Years Later’, p. 13 (observing that ‘until recently, [Trail Smelter] was virtually the only judicial decision of note’).

38

Trail Smelter Arbitration; Lac Lanoux Arbitration.

39

Island of Palmas Case; Corfu Channel Case.

40

Nuclear Tests (Australia v France), Judgment of 20 December 1974, icj Reports 1974, p. 253.

41

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, icj Reports 1996, p. 226, at p. 242.

42

Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, icj Reports 1997, p. 7, at p. 41. The case involved a dispute between Hungary and Slovakia concerning the construction of dams and other projects along the Danube.

43

Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment 20 April 2010, icj Reports 2010, p. 14, at pp. 55–6, 78. The case involved a dispute concerning the planned construction by Uruguay of a pulp mill on its side of the boundary river to Argentina.

44

Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment of 16 December 2015, icj Reports 2015, p. 665, at pp. 705–7. The cases revolved around various activities with the potential for transboundary impact undertaken by Costa Rica and Nicaragua, respectively, along the river marking the boundary between the two states.

45

Legality of the Threat or Use of Nuclear Weapons.

46

Ibid. (emphasis added). By contrast, in the Trail Smelter Arbitration, p. 1965 the focus was squarely on ‘injury … in or to the territory of another [state] or the properties or persons therein’.

47

Pulp Mills, pp. 55–6.

48

See ibid., p. 79 (observing that due diligence ‘entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators’).

49

Ibid., p. 83. See also Certain Activities, pp. 706–7.

50

Stockholm Declaration of the United Nations Conference on the Human Environment, done at Stockholm on 16 June 1972, 11 ilm 1416 (1972).

51

Ibid., Principle 21.

52

Rio Declaration on Environment and Development, done at Rio de Janeiro on 14 June 1992, 31 ilm 874 (1992), Principle 2.

53

For an overview, see Malgosia Fitzmaurice, ‘Legitimacy of International Environmental Law - The Sovereign States Overwhelmed by obligations: Responsibility to React to Problems Beyond National Jurisdiction’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 77 (2017), 339–70, at p. 342.

54

For an overview see Brunnée, ‘Procedure and Substance’, pp. 184–223.

55

International Law Commission (ilc), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, in Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, UN Doc. a/CN.4/ser.a/2001/Add.1, p. 152.

56

Legality of the Threat or Use of Nuclear Weapons.

57

A proposed Global Pact on the Environment aims to enshrine principles of general international environmental law in binding form, but has so far failed to garner sufficient support. See Towards a Global Pact for the Environment, Resolution adopted by the General Assembly on 10 May 2018, UN Doc. a/res/72/277. For a critical assessment, see Géraud de Lassus Saint-Geniès, ‘Not All that Glitters is Gold: An Analysis of the Global Pact for the Environment Project’, cigi Papers No 215, May 17 2019 (Centre for International Governance Innovation); at https://www.cigionline.org/publications/not-all-glitters-gold-analysis-global-pact-environment-project/.

58

Rio Declaration, Principles 2, 18 and 19.

59

Ibid., Principle 15.

60

Ibid., especially Principles 1, 3, 4 and 8.

61

Ibid., Principles 6 and 7.

62

See supra, notes 11–12 and accompanying text.

63

See supra, note 10 and accompanying text.

64

For a detailed exploration, see Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University Press, 2006). For a more recent assessment, see Philippe Cullet, ‘Differentiation’, in The Oxford Handbook of International Environmental Law, 319–34.

65

See Jacqueline Peel and Lavanya Rajamani, ‘International Environmental Law: Changing Context, Emerging Trends, and Expanding Frontiers’, in The Oxford Handbook of International Environmental Law, 1–30, at pp. 13–4 (noting, however, that sustainable development ‘has crystallized’); Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (Oxford: Oxford University Press, 2017), at pp. 43–55 (surveying the development of customary law that might be applicable to climate change).

66

See ilc, Draft Articles on Prevention, p. 155 (noting that due diligence could require ‘such measures as are appropriate by way of abundant caution, even if full scientific certainty does not exist, to avoid or prevent serious or irreversible damage’). And see Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, itlos Rep 10 (2011), Advisory Opinion of 1 February 2011, at pp. 43, 46–7, paras. 117, 131–2 available at: https://www.itlos.org/cases/list-of-cases/case-no-17/ (emphasizing the contextual nature of the due diligence standard, inter alia in light of the risks involved in a given activity).

67

See Rio Declaration, Principle 15.

68

See Bodansky, et al., International Climate Change Law, pp. 41–2.

69

But see Jorge Viñuales, ‘Sustainable Development’, in The Oxford Handbook of International Environmental Law, 285–300, at p. 291 (concluding that sustainable development has crystallized into a norm the content of which ‘must be determined by reference to the evolving treaty and customary law of environmental protection)’.

70

See Peel and Rajamani, The Oxford Handbook of International Environmental Law.

71

The three treaties are: the Convention on Biological Diversity, the Desertification Convention, and the Framework Convention on Climate Change. See also infra, notes 103–108 and accompanying text.

72

See United Nations Framework Convention on Climate Change, done at New York on 9 May 1992, 1771 unts, p. 107 (unfccc), Principle 3.

73

The law of the sea, of course, was fundamentally shaped by none other than Grotius, who articulated the principle that continues to underpin the field: the freedom of the high seas and the proposition that the high seas are res communis, such that they cannot be appropriated by any state but are open to use, and exploitation, by all. See Nico Schrijver and Vid Prislan, ‘From Mare Liberum to the Global Commons: Building on the Grotian Heritage’, Grotiana 30 (2009), 168–206, pp. 170–76; and Snjólaug Árnadóttir, ‘The Impact of Sea Level Rise on Maritime Limits: A Grotian Moment in the Law of the Sea’, Grotiana 42 (2021), 277–303, p. 282.

74

See also the United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, entered into force on 16 November 1994; UN Doc. a/conf.62/122 (unclos); 1833 unts 3; 21 ilm 1261 (1982), Art. 192 (enshrining the general obligation to protect and preserve the marine environment).

75

See e.g. Institut de Droit International, Obligations Erga Omnes in International Law (2005), preamble (referring to ‘obligations relating to the environment of common spaces’ as among the obligations ‘reflecting fundamental values’).

76

Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgement of 5 February 1970, icj Reports 1970, p. 3 at p. 32, para. 33.

77

But see the argument of New Zealand in Nuclear Tests (New Zealand v France), Interim Protection, Order of 22 June 1973, icj Reports 1973, p. 135 at p. 139. Australia, in a parallel case, did not frame its claim explicitly in terms of the rights of all members of the international community. It did, however, argue that the French tests would infringe the freedom of the high seas.

78

Responsibilities in the Area, p. 51, para. 148.

79

See unclos, Art. 136.

80

Responsibilities in the Area, p. 59, para. 180 (referring to Art. 137(2) unclos).

81

Draft Articles for Responsibility of States for Internationally Wrongful Acts, in Yearbook of the International Law Commission, 2001, Vol. ii, Part Two, UN Doc. a/CN.4/ser.a/2001/Add.1, p. 26 at p. 27, Art. 14(3), at p. 126, Art. 48. On the Draft Articles, see Jacqueline Peel, ‘New State Responsibility Rules and Compliance with Multilateral Environmental Obligations: Some Case Studies of How the New Rules Might Apply in the International Environmental Context’ Review of European Community and International Environmental Law 10 (2012), 82–97.

82

For a detailed analysis, see Priya Urs, ‘Obligations erga omnes and the question of standing before the International Court of Justice’, Leiden Journal of International Law 34 (2021), 505–25.

83

See James Crawford, ‘Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ilc Articles on the Responsibility of States for Internationally Wrongful Acts’ in: From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, ed. by Ulrich Fastenrath et al. (Oxford: Oxford University Press, 2011), 362–94, at p. 224 (observing that the debate about obligations owed erga omnes is “carried on almost entirely in the abstract, with little or no reference to earlier instances of international adjudication or State practice”).

84

Timothy Stephens, International Courts and Environmental Protection (Cambridge: Cambridge University Press, 2009), at p. 67. But see also Urs, ‘Obligations erga omnes’, p. 524 (concluding that the icj’s recent jurisprudence has developed such that the Court cannot ‘walk back the connection it has now clearly endorsed between the status of a primary obligation as erga omnes and the right of standing to institute proceedings for its enforcement’).

85

See Jutta Brunnée, ‘The Rule of International (Environmental) Law and Complex Problems’, in: The International Rule of Law: Rise or Decline, ed. by Heike Krieger, Georg Nolte and Andreas Zimmermann (Oxford: Oxford University Press, 2019), 211–31.

86

For an overview, see Richard Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’, Cornell Law Review 94 (2009), 1153–233.

87

See Jutta Brunnée and Ellen Hey, ‘Judicial Contributions to the Development of International Environmental Law: Refining the Duty to Cooperate in Environmental Harm Prevention’, Yearbook of International Environmental Law 30 (2019), 45–53, at p. 48 (noting that much of the field’s case law revolves around transboundary impacts between neighbouring states).

88

Steven Krasner, ‘Structural Causes and Consequences: Regimes as Intervening Variables’, International Organization 36 (1982) 185–205, at p. 186.

89

For an overview see Jutta Brunnée, ‘Environment, Multilateral Agreements’ in Max Planck Encyclopedia of Public International Law, ed. by Rüdiger Wolfrum (Oxford: Oxford University Press, 2011).

90

This paragraph draws from Bodansky et al, International Climate Change Law, pp. 57–8.

91

See Robin R. Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law’, American Journal of International Law 94 (2000), 623–59.

92

See Jutta Brunnée, ‘COPing with Consent: Lawmaking under Multilateral Environmental Agreements’, Leiden Journal of International Law 15 (2002), 1–52.

93

Ibid., pp. 17–8.

94

See Brunnée, ‘Procedure and Substance’, p. 210.

95

See Brunnée, ‘COPing’, p. 32.

96

See Convention on Long-Range Transboundary Air Pollution, done at Geneva on 13 November 1979, United Nations, Treaty Series, Vol. 1302, p. 217, Article 1 (b). For ratification status, see United Nations Treaty Collection, at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-1&chapter=27&clang=_en (accessed February 12, 2022).

97

See UN Economic Commission for Europe (unece), Protocols, at https://unece.org/protocols (accessed February 12, 2022).

98

See unece, The Convention and its Achievements: A Common Framework for Transboundary Cooperation on Air Pollution, at https://unece.org/convention-and-its-achievements (accessed February 12, 2022).

99

For an overview see Adriana Fabia, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in Peel and Rajamani, The Oxford Handbook of International Environmental Law, pp. 529–53.

100

See e.g. Frederike Albrecht and Charles F. Parker, ‘Healing the Ozone Layer: The Montreal Protocol and the Lessons and Limits of a Global Governance Success Story’, in: Great Policy Successes, ed. by Paul t’Hart and Mallory Compton (Oxford: Oxford University Press, 2019), 304–22, at p. 304.

101

See Vienna Convention for the Protection of the Ozone Layer, done at Vienna on 22 March 1985, United Nations, Treaty Series, Vol. 1513, p. 293; Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal on 16 September 1987, United Nations, Treaty Series, Vol. 1522, p. 3.

102

See World Meteorological Organization, ‘Ozone layer recovery is an environmental success story’ (15 September 2021), at https://public.wmo.int/en/media/news/ozone-layer-recovery-environmental-success-story (accessed February 12, 2022).

103

See Bodansky et al, International Climate Change Law, p. 62.

104

See e.g. Lavanya Rajamani, ‘The changing fortunes of differential treatment in the evolution of international environmental law’, International Affairs 88 (2012), 605–23, at p. 608.

105

unfccc, Preamble and Article 3.2.

106

Kyoto Protocol to the United Nations Framework Convention on Climate Change, done at Kyoto on 10 December 1997, United Nations, Treaty Series, Vol. 2303, p. 162. For a discussion, see Bodansky et al, International Climate Change Law, pp. 108, 173.

107

See supra, notes 26–28 and accompanying text.

108

See Bodansky et al, International Climate Change Law, pp. 108–115.

109

Paris Agreement to the United Nations Framework Convention on Climate Change, done at Paris on 12 December 2015, 55 ilm 740 (2016), p. 740.

110

Paris Agreement, Article 2.1(a).

111

Ibid., Article 4.3.

112

Ibid., Article 3.

113

Ibid., Article 4.2.

114

Ibid.

115

For an overview, see Brunnée, ‘Procedure and Substance’, pp. 203–6.

116

On the notion of ‘orchestration,’ see Kenneth W. Abbott, ‘Orchestration’, in: Governing Climate Change: Polycentricity in Action? ed. by Andrew Jordan et al. (Cambridge: Cambridge University Press, 2018), 188–209. See also Lavanya Rajamani, ‘Innovation and Experimentation in the International Climate Change Regime’, Receuil des Cours 404 (2019).

117

See also Giovanna M. Frisso and Elizabeth A. Kirk, ‘Changing role of law-making in responding to planetary boundaries’, in: Research Handbook on Law, Governance and Planetary Boundaries, ed. by Duncan French and Louis J. Kotzé (Cheltenham: Edward Elgar, 2021), 147–66 (for a broad exploration of the challenges of developing law that would reflect interconnected Earth systems processes).

118

Chimni, ‘The Grotian Tradition’, p. 266.

119

See Bodansky et al, International Climate Change Law, pp. 23–5.

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