Showing papers on "Environmental law published in 2016"

New Transitions from Human Rights to the Environment to the Rights of Nature

Abstract: The weaknesses of our environmental laws stem in large part from the fact that legal systems treat the natural world as property that can be exploited and degraded, rather than as an integral ecological partner with its own rights to exist and thrive. This article analyzes the recent rise of a new generation of environmental laws which reject the ‘false dogma’ of ‘humans over nature’ and instead recognize our interconnectedness with the natural world and acknowledge its rights to exist, persist, and maintain its vital cycles. The article focuses on the transition from an anthropocentric approach, denoted by the ‘right to the environment’, to a biocentric approach constructed around ‘rights of nature’. This transition is evident in various new legal instruments – the Ecuadorian Constitution, certain Bolivian laws, and numerous ordinances of the United States – which incorporate and respect rights of nature, and grant legal rights to the natural world and enforcement rights to affected communities. These instruments serve as models for legal systems which can steer us towards more robust and effective environmental laws.

The Need for an International Legal Concept of Fair and Equitable Benefit Sharing

Abstract: This article proposes a concept of 'fair and equitable benefit sharing' deriving from international biodiversity law, international human rights law, and the law of the sea. The concept identifies normative elements that are shared among the international treaties that refer to benefit sharing, comprising the act of sharing; the nature of the benefits to be shared; the activities from which benefit sharing arise; the beneficiaries; and fairness and equity as the rationale for benefit sharing in international law. The concept is not intended to provide a holistic or exhaustive notion of fair and equitable benefit sharing but, rather, to support comparison and generalization with a view to shifting the current investigation from sectoral/technical approaches to the perspective of general international law and the contribution to research in other areas of international law. The proposed conceptualization is thus geared towards the development of a research agenda targeting a variety of international and transnational legal materials, allowing for the appreciation of differences in the context of varying logics of different areas of law.

The Oxford Handbook Of International Environmental Law

Abstract: The second edition of this leading reference work provides a comprehensive discussion of the dynamic and important field of international law concerned with environmental protection. The handbook discusses the key principles underpinning international environmental law, its relevant actors and tools, and rules applying in its substantive sub-fields such as climate law, oceans law, wildlife and biodiversity law, and hazardous substances regulation. It also explores the intersection of international environmental law with other areas of international law, such as those concerned with trade, investment, disaster, migration, armed conflict, intellectual property, energy, and human rights. The handbook sets its discussion of international environmental law in the broader interdisciplinary context of developments in science, ethics, politics, and economics, which inform the way in which environmental rules are made, implemented, and enforced. It provides an introduction to the foundations of international environmental law while also engaging with questions at the frontiers of research, teaching, and practice in the field, including the role of global South perspectives, the contribution made by Earth jurisprudence, and the growing role of a diverse range of actors from Indigenous peoples to business and industry. It is an essential reference text for all engaged with environmental issues at the international level and the applicable governance and regulatory structures.

Research handbook on the theory and practice of international lawmaking

Abstract: Contents: Preface Introduction: International Lawmaking in a Global World Catherine Broelmann and Yannick Radi PART I: THEORETICAL VIEWS OF INTERNATIONAL LAWMAKING 1. State Consent as Foundational Myth Wouter G. Werner 2. Subjects and Actors in International Lawmaking: The Paradigmatic Divides in the Cognition of International Norm-Generating Processes Jean d'Aspremont 3. Transnational Lawmaking Dennis Patterson 4. Contemporary Theories and International Lawmaking Ingo Venzke PART II: INTERNATIONAL LAWMAKING IN AN INTER-STATE SETTING 5. Lawmaking by Treaty: Negotiation of Agreements and Adoption of Treaty Texts Kirsten Schmalenbach 6. Lawmaking by Treaty: Conclusion of Treaties and Evolution of a Treaty Regimes in Practice Daniel Costelloe and Malgosia Fitzmaurice 7. The Emergence of Customary International Law: Between Theory and Practice Omri Sender and Michael Wood 8. Relying on General Principles in International Law Beatrice I. Bonafe and Paolo Palchetti PART III: INTERNATIONAL LAWMAKING BEYOND THE STATE 9. Institutional Lawmaking: The Emergence of a Global Normative Web Ramses A. Wessel 10. International Judicial Lawmaking Gleider I. Hernandez 11. Domestic Judicial Lawmaking Antonios Tzanakopoulos 12. Quasi-Judicial Bodies Mara Tignino 13. International Lawmaking by Hybrid Bodies: The Case of Financial Regulation Michael S. Barr 14. International Lawmaking and Civil Society Barbara K. Woodward 15. Lawmaking by Scholars Joerg Kammerhofer PART IV: INTERNATIONAL LAWMAKING IN SELECTED ISSUE AREAS 16. The Making of International Human Rights Law Vassilis P. Tzevelekos 17. The Making of International Criminal Law Sergey Vasiliev 18. The Making of International Trade Law Mary E. Footer 19. The Making of International Environmental Law Francesca Romanin Jacur 20. The Making of International Natural Resources Law Owen McIntyre Index

The politics of environmental migration and climate justice in the Pacific region

Abstract: Starting from a critical discussion of current arguments and concepts in research on the environment–migration nexus, the article analyses how environmental migration is discussed in the Pacific region. In the first section we provide a short overview of the academic debates on environmental migration and describe their limitations. We suggest that a legal stalemate has arisen at global level regarding environmental migrants. The second section examines the evolving negotiations to address environmental migrants in the Pacific region that are, in contrast to the global North, based on climate science and on calls for climate justice and solidarity. We conclude that the inclusion of post-colonial perspectives in the debates on environmental migration can render visible the political nature of climate adaptation choices and reconnect global negotiations to questions of fair burden sharing in adaptation. The article brings a legal anthropological lens to bear on empirical material from the Pacific region, to show the new rights, resources and policies that may emerge from climate change and migration debates. The article offers insights into the increasingly complex decision-making processes and development of policies and laws in the context of global climate change.

Groundwater Governance: The Role of Legal Frameworks at the Local and National Level—Established Practice and Emerging Trends

Abstract: Legal frameworks play a crucial role for effective groundwater governance. They flank and support water policy and provide users and the administration with rights and obligations to use, manage, and protect vital resources in order to achieve the overall goal of equitable and sustainable water use. This paper discusses key challenges that have to be addressed in water law to manage and protect groundwater effectively. It will provide an overview of established practice in groundwater legislation and discuss recent trends and developments in light of current challenges. It focuses on permit-based systems of administrative water rights but will to a limited extent also deal with customary, community-based, and informal arrangements. It will show that increasingly domestic groundwater legislation is strengthened and ranked on a par with surface water regimes, ideally by dealing with all water resources in an integrated manner.

Next-Generation Environmental Regulation: Law, Regulation, and Governance

Abstract: This article analyzes more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It shows how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved—their most important manifestations being pluralistic regulation, new technologies, compliance, and new governance. It shows how each of the frameworks examined proposes its own solutions and has something valuable to offer, as well as its own limitations. The article concludes by discussing a fundamental challenge confronting the field, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrum.

E‐products, E‐waste and the Basel Convention: Regulatory Challenges and Impossibilities of International Environmental Law

Abstract: Electronic waste is recognized as the fastest growing hazardous waste stream of the twenty-first century. Because e-waste streams contain highly valuable precious metals and other secondary resources as well as hazardous toxic substances, the issue of their regulation lies at a liminal space between products and wastes. This complex legal interface engages the distinct and sometimes contradictory international regimes of liberalized trade and environmental protection. With most global flows of e-waste being treated by informal recycling industries in developing countries, and given the continued structural exclusion of these marginalized e-waste recycling sectors from official waste governance paradigms, the globalization of e-waste raises important environmental justice and North–South development issues. The present article examines the discussion of e-waste within international environmental law. In particular, it assesses new guideline developments under the Basel Convention on Transboundary Movements of Hazardous Waste and their Disposal. It is argued that despite its overarching objectives in relation to human health and environmental protection, the Basel Convention and the newly adopted Technical Guidelines on E-waste primarily ensure the continued circulation of obsolete electronic commodities in conditions that reproduce international externalities. The impossibility of this international environmental regime to foster any meaningful and authoritative notion of accountability over hazardous wastes that are generated through transboundary flows of ‘products’ inevitably limits its potential to curb the externalization of hazardous waste pollution to vulnerable populations who suffer the most acute health risks of global hi-tech production, consumption and reproduction. In essence, the success of this international regime over ‘wastes’ depends very critically on its coupling with national legislative controls over ‘products’ and more importantly, necessitates serious reflection on the legal dimensions of the notion of sustainable consumption.

A New Environmental Protection Law, Many Old Problems? Challenges to Environmental Governance in China

Abstract: Through a three-year revision involving various stakeholders, China has enacted a new Environmental Protection Law (EPL). The new law seeks to harmonize economic and social development with environmental protection and for the first time establishes clear requirements for the construction of an ecological civilization. It toughens the penalties for environmental offences with specific articles and provisions for raising public awareness. It also places greater responsibility on local government and law enforcement for the protection of China’s environment. However, many of the problems identified in the old EPL and especially the obstacles to its implementation have not been fully addressed and resolved. Effective environmental governance entails not only environmental laws but also implementation mechanisms, accountability regimes, and institutional arrangements. Raising the status of the EPL and of the general environmental protection apparatus is only the first step to meeting China’s environmental challenges. More efforts in the area of enforcement and implementation will lead China to a cleaner future.

Global Environmental Constitutionalism in the Anthropocene

Abstract: There is persuasive evidence suggesting we are on the brink of human-induced ecological disaster that could change life on Earth as we know it. There is also a general consensus among scientists about the pace and extent of global ecological decay, including a realisation that humans are central to causing the global socio-ecological crisis. This new epoch has been called the Anthropocene. Considering the many benefits that constitutional environmental protection holds out in domestic legal orders, it is likely that a constitutionalised form of global environmental law and governance would be better able to counter the myriad exigencies of the Anthropocene. This book seeks to answer this central question: from the perspective of the Anthropocene, what is environmental constitutionalism and how could it be extrapolated to formulate a global framework? In answering this question, this book offers the first systematic conceptual framework for global environmental constitutionalism in the epoch of the Anthropocene.

Climate justice, loss and damage and compensation for small island developing states

Abstract: Low-lying small island developing states are threatened by inundation from rising sea levels caused by anthropogenic global warming. Islanders face the prospect of forcible relocation without protection under international law and with few resources for resettlement. They are entitled to compensation for climate-related loss and damage in the interests of climate justice. The present article discusses the history of proposals for an international compensation mechanism under the UN Framework Convention on Climate Change led by the Alliance of Small Island States. These calls led to the establishment of the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts in 2013. Several proposals have been put forward about how a mechanism should operate and achieve its objectives. I argue that climate justice will be promoted through compensation for loss and damage. An international compensation fund offers a relatively simple and ethically satisfactory way of acknowledging the physical loss and psychological damage resulting from climate change and from the extensive violation of islanders’ human rights.

The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law

Abstract: The 2009 Copenhagen Accord marked a significant shift in global climate governance which has been substantially adopted in the 2015 Paris Agreement. At Copenhagen, binding targets for states to reduce emissions were replaced by voluntary pledges. We argue that the Polanyian ‘double movement’ offers a useful lens to understand the Copenhagen shift in global climate governance as part of ongoing contestation in the international law system between principles of economic liberalisation and redistributive intervention. In the second half of the 20th century, redistributive design of international legal institutions became evident in a number of issue areas including trade law, oceans law and the seminal climate treaties. However, there has been ongoing US lead opposition to ‘redistributive multilateralism’ (RM), particularly over the last decade of climate negotiations. The Copenhagen model of voluntary pledges, therefore, needs to be viewed as an outcome of this opposition to RM and a related weakening of differentiation in international environmental law.

A tale of two agreements: negotiating aboriginal land access agreements in Australia's natural gas industry

Abstract: This PhD thesis develops practical, theoretically sound, broadly applicable and multi-disciplinary explanations for how Aboriginal traditional owners can maximise benefits from agreement making with resource companies. It focuses on negotiations conducted pursuant to the ‘future act’ regime of the Australian Native Title Act 1993 (Cth). This regime stipulates that resource companies seeking to access land subject to claimed or determined native title rights and interests must negotiate for at least six months with that land’s traditional owners with a view to reaching an agreement about the terms of that access. It does not allow traditional owners to veto access. Using a qualitative case study research design, this thesis examines two land access agreement negotiations for liquefied natural gas (LNG) processing facilities that resulted in very different outcomes for traditional owners. These agreements were described by research participants as being “like chalk and cheese”: the benchmark Browse LNG agreements in the Kimberley, Western Australia, and the inadequate Curtis Island LNG agreements of central Queensland. This PhD thesis joins only a handful of research projects to study real life negotiations from the perspective of all negotiation parties. The thesis argues that Browse LNG and Curtis Island negotiation outcomes were determined by a complex combination of factors. These primarily relate to the strength of Aboriginal political organisations and the structural context that each negotiation takes place in, including the history of the location of the proposed development, the land’s level of native title rights and the attitude of respective state governments. The thesis finds that the ‘right to negotiate’ is an important procedural tool for traditional owners, despite significant shortcomings. In central Queensland, an extremely violent colonial period has resulted in poor prospects for recognition of native title rights, and the displacement of people from similar cultural and language groups from their land and from each other. This displacement makes forming strong political organisations more difficult because not only are people less geographically proximate, they are also likely to find it harder to maintain solidarity and less likely to practise traditional law and custom. The State of Queensland was almost totally absent from the Curtis Island LNG negotiations, and its stance towards the development favoured LNG company interests over those of traditional owners. In comparison, Aboriginal people in the Kimberley experienced a different colonial impact (resulting in stronger native title rights), continue to practise Aboriginal law and custom, think of themselves as a single political and cultural domain, and are represented by several important Aboriginal organisations. The State of Western Australia’s stance in the negotiations aided traditional owner leverage because it was not only the proponent of the Browse LNG development, it also explicitly and publically linked the proposed development with a discourse of combating Aboriginal disadvantage in the Kimberley.

Differential Treatment in Environmental Law: Addressing Critiques and Conceptualizing the Next Steps

Abstract: Differential treatment in international environmental law is the broader manifestation of the principle of common but differentiated responsibilities (CBDRs). It reflects equity concerns that have underlain most environmental debates on a North-South basis for several decades. Over the past couple of decades, different forms of differentiation have been introduced in environmental law instruments to the point where it has become an essential element of any international environmental agreement. At the same time, differential treatment has been the object of sustained criticism, arguing that it should be temporary, that it fails to target beneficiaries appropriately, and undermines environmental outcomes. This article takes the opposite view and argues that differentiation remains crucial in a world where widespread inequalities remain. Beneficiaries need to be identified on the basis of environmental and social indicators and differentiation should constitute the basis on which environmental measures are adopted. Worsening environmental conditions and an evolving global context call for adding new elements to the existing framework for differentiation. This requires thinking beyond the current structure centered around nation states and conceptualizing differentiation around common heritage equity. It also requires expanding differentiation beyond the field of environmental law, to include all areas of sustainable development law. Further, differential treatment needs to be implemented in a way that benefits the most disadvantaged in every country. These measures are necessary to foster a vibrant international environmental law that addresses the equity needs of all states in years to come.

‘Common But Differentiated Responsibilities’ in the National Courts: Lessons from Urgenda v. The Netherlands

Abstract: The landmark 2015 decision by the Hague District Court in Urgenda v. The Netherlands represents the first time a national court has expressly used the international environmental law (IEL) principle of common but differentiated responsibilities and capabilities (CBDRs) of the climate regime as a complementary tool to interpret the scope of a state’s climate obligations under domestic law. This article highlights that despite the marked engagement of national courts with IEL in recent decades (including engaging with principles such as sustainable development, polluter pays, intergenerational equity, and precaution), until this decision CBDRs had remained outside the purview of environmental law jurisprudence at the national level. The article examines how the Hague Court used CBDRs to help address two common barriers to climate liability: causation and the ‘political question’ doctrine. The article argues that the Court was able to find normative content in a core element of the climate-related CBDRs: the ‘leadership’ role of developed countries in climate action. This core element has remained remarkably consensual throughout the contested history of CBDRs in the climate regime – a history that has gained a new chapter with the signature of the Paris Agreement in December 2015. The article concludes that Urgenda v. The Netherlands may serve as a starting point for a more productive and extensive use of CBDRs in climate litigation, provided litigants make more explicit use of the persuasive authority of the principle.

EU Environmental Law and Policy

Abstract: An accessible and comprehensive resource, EU Environmental Law and Policy explains the structure and logic of EU environmental law and enables readers to quickly gain a thorough understanding of th ...

Subsidiarity in European Environmental Law: A Competence Allocation Approach

Abstract: Since the 1970s, the influence of the European Union in the area of environmental law and policy has steadily expanded, even though environmental policy continues to be a shared competence between the European Union and its Member States. As such, the allocation of competences between the European and national levels is governed by the principle of subsidiarity, which is aimed at maintaining a high level of decentralization. As it stands, subsidiarity is tested primarily, if not exclusively, against the presence of, or potential for, economic or environmental externalities of the regulated activity. Notwithstanding recent changes in the Lisbon Treaty to strengthen ex ante political control over the application of the subsidiarity principle, a rebuttable presumption in favor of an ever-increasing European role in environmental policy has developed.This Article aims to move beyond this rebuttable presumption by introducing additional criteria for competence allocation: heterogeneity of preferences and conditions between regulated jurisdictions and activities, and the potential for economies of scale and scope. In addition, a distinction is made between the different phases of the regulatory process — specifically, norm setting, implementation, and enforcement — also referred to as regulatory competences. By distinguishing between these stages of regulation, the relative importance of externalities, and the additional criteria mentioned above, each stage of regulation is explicated. Finally, this Article discusses the extent to which instrument choice can act as an alternative for the centralization or decentralization of competences. The potential of this complementary “competence allocation” approach to the interpretation of subsidiarity in European environmental law is illustrated by a case study of the European Union Emissions Trading Scheme.

Evaluating the application of eu environmental standards in european public banks’ investment projects in third countries

Abstract: The topic lies primarily in the field of European environmental law. It focuses on the ‘export’ of European environmental legal standards to the third countries by the Europe-based investment banks (such as EBRD, EIB, NIB). In 2006 these banks voluntarily agreed to apply the EU legal environmental standards to their foreign direct investment projects in the third countries, where feasible. The major question the project addresses is how to trace the (non-)application of these standards in the third countries. The study approaches the issue via the results-based accountability of the investment banks, and eventually suggests the elaboration of legal environmental indicators, aimed at tracing the application of European legal environmental standards in investment projects outside the EU.

Strategic Environmental Assessment in International and European Law: A Practitioner's Guide

Abstract: Foreword * Introduction: SEA and the Law * Part I: International Law * An Overview of International Law * International Environmental Law * The Espoo and Aarhus Conventions * The SEA Protocol * SEA and the Conservation Conventions * Part II: European Law * An Overview of European Law * European Environmental Law * The EIA and other Horizontal Directives * The SEA Directive * Relationship between the SEA, EIA and other Related Directives * Comparisons and Conclusions * Index

Comparison of environmental laws publications in Science Citation Index Expanded and Social Science Index: a bibliometric analysis

Abstract: This study presents an analysis of environmental law research in the natural science and social science fields from a bibliometric perspective. Document type, publication language, annual output, and distributions of countries were quantitatively characterized and compared in the Science Citation Index Expanded (SCI-EXPANDED) and the Social Science Index (SSCI). The citation history of highly cited articles and word analysis were used to examine research tendencies and "hotspots" in environmental law research. The results show that from 1992 to 2014 SCI-EXPANDED has published more research in environmental laws than SSCI except in 2011. The USA is the most productive country in both databases. Developing countries such as China, India, and Brazil are among the top 10 productive countries in SCI-EXPANDED, while in that of SSCI, China is the only developing country. The USA had the most frequent collaborations with other countries both in SCI-EXPANDED and SSCI; collaborations were more frequent in SSCI than in the SCI-EXPANDED. Words analysis reveals that "sustainability", "compliance", and "environmental management" are key issues in SSCI, while articles in SCI-EXPANDED pay more attention to "risk assessment", "recycling", "wastewater treatment", and "temperature". "China" is a key issue in research in both natural science and social science field, which indicates the rapid development of environmental law research in China as well as the growing concerns of China's environmental law issues.

Petroleum Industry in Nigeria: Environmental Issues, National Environmental Legislation and Implementation of International Environmental Law

Abstract: Advances in the development of petroleum resources has contributed enormously to the global energy demand and economic development over the past decades, however, it has left profound negative impacts on the natural environment and adverse human health effects in most oil-producing host communities around the world. Apart from the loss of petroleum-derived revenue to corruption and ineffective government's petroleum development policies, the Niger Delta region has experienced a wide range of environmental pollution, degradation, human health risks and socio-economic problems associated with petroleum exploration, development and production. Over the years, several environmental laws have been institutionalized to regulate the petroleum sector in Nigeria. The Nigerian government and other African countries have played tremendous roles in the emergence of international environmental law that regulate the establishment of environmental institutions and legislations as well as strategies for conservation and management of natural resources. However, the existing Nigeria statutory laws and regulations for environmental protection appear to be grossly inadequate and some of the multinational oil companies operating in the Niger Delta region have failed to adopt sustainable practices to prevent environmental pollution. Poor implementation of national and international environmental policies associated with petroleum exploitation and production in the Niger Delta region have resulted in huge environmental costs, degradation and issues of responsibilities from the oil companies. Therefore, this research paper examines some of the contributions of multinational oil companies operation towards environmental degradation and the role of Nigerian Government in the implementation of the petroleum-related environmental policies in the Niger Delta region.

Beyond Access and Benefit-Sharing: Lessons from the Law and Governance of Agricultural Biodiversity

Abstract: The concept of fair and equitable benefit-sharing emerged in the early 90s as a corollary to the principle of national sovereignty over natural and genetic resources. In the context of agricultural biodiversity use, it can be conceptualized in three ways: as a defensive tool to balance the injustices enshrined in the intellectual property rights system; as a development tool to reap part of the benefits of the emerging biodiversity market; and as an incentive, to reward and enable farmers’ continued contribution to conservation. This paper seeks to assess the potential of the concept in operationalizing fairness and equity in agricultural biodiversity governance, in an increasingly complex legal and policy landscape of conflicting rights and policies. After explaining its emergence in the context of the evolving principles of governance of agricultural biodiversity, it concentrates on the Multilateral System of Access and Benefit-sharing established by the International Treaty on Plant Genetic Resources for Food and Agriculture, a system for the exchange of plant genetic resources and sharing of the benefits arising thereof, which is arguably the most sophisticated one in international law. On the basis of a technical examination of the ITPGR experience in the framework of IPR- and human rights-related processes, it identifies linkages, challenges and key lessons, which are useful for a wide range of processes within and beyond the international environmental law realm.

Brexit and the future of UK environmental law

Abstract: The United Kingdom’s decision to leave the European Union will have major consequences for environmental law. EU law is integrated into the UK’s laws in many ways that will be difficult to disentangle and a continuity of laws provision seems desirable in order to avoid gaps in the law appearing. The effect of devolution within the UK is that most environmental matters will in future be the responsibility of the devolved administrations. The UK’s freedom of action will continue to be constrained by obligations in international law, including those establishing a new relationship with the EU. Environmental law in the UK has changed greatly during the four decades of its membership in the EU and most of the innovations introduced through the EU are likely to be retained, although there may be a wish to restore more discretion over the outcomes to be achieved as opposed to having strict obligations to satisfy targets and standards. In structural terms the biggest changes are likely to be the loss of the stabi...