Ian H. Rowlands
What is ‘atmosphere’ and what is ‘outer space’? The term ‘atmosphere’ is sometimes used interchangeably with ‘air’. Moreover, it is often assumed that ‘outer space’ is simply the area above and beyond ‘air space’ (another term often used). While understandings such as these are certainly reasonable for most discussions, the effective development of international environmental law may well demand more precise definitions. This article provides an overview of key atmospheric and outer space environmental challenges that have been – and continue to be – addressed by international environmental law. It examines transboundary air pollution, ozone layer depletion, global climate change, and outer space. For each of these issue areas, the article describes a particular environmental problem (or set of environmental problems). It also reviews key elements of the international legal response (including especially significant agreements), focusing on innovative approaches taken as part of this response. In addition, the article discusses transboundary transport of industrial pollutants as well as major industrial accidents.
In the past century, a large number of bilateral, regional, and global agreements have been adopted relating to the protection, preservation, conservation, and management of the Earth's terrestrial and marine species and genetic resources. Despite the vast amount of international law relating to the conservation of biological resources, species, habitat, and genetic diversity loss is now considered to be reaching crisis proportions, with potentially catastrophic consequences for humankind. This article examines the current international legal regime for the protection of the Earth's biological resources. It begins with a discussion of the meaning of the term ‘biological resources’, the philosophical rationales for their protection, and the theoretical approaches thereto. The article then examines the various legal regimes and regulatory measures that have been adopted. The types of regimes for the conservation of biological resources include the regulation of harvest (harvest of species and genetic resources), habitat protection, and regulation of trade (control of exploitation and introduction of alien or invasive species). The article also considers measures regulating direct threats and indirect threats.
Karen Alvarenga Oliveira
This chapter examines the climate change policy of Brazil. In 2010 at the Sixteenth Conference of Parties in Cancún, Brazil announced its voluntary national target of significantly reducing greenhouse gas (GHG) emissions between 36.1 per cent and 38.9 per cent of projected emissions by 2020. These targets were defined in the Brazilian National Policy on Climate Change (PNMC). The PNMC establishes principles, guidelines, and economic instruments for reaching the national voluntary targets. It relies on sectoral plans for mitigation and adaptation to climate change in order to facilitate the move towards a low-carbon economy. The PNMC defined various aspects related to the measurement of goals, formulation of sectoral plans and of action plans for the prevention and control of deforestation in all Brazilian biomes, and governance structure.
Steven R. Ratner
Business has a central role in international environmental law. Both treaties and treatises regard private economic actors as secondary players, and see states as the overwhelmingly dominant targets and prescribers of environmental law. This article examines the roles and goals of business entities with respect to international environmental law. It then considers how international law has accommodated the place of business in environmental policy with respect to two key issues: corporations as the target of legal obligations; and corporations as participants in the process of international environmental law, particularly with respect to law making and implementation. The article also looks at business-initiated non-governmental organisations, both those composed of, or representing, businesses within one state, as well as those with a more international profile. It examines business and environmental regulation, focusing on two visions of international business. Finally, the article analyses business as the target of international environmental law duties, civil liability conventions, soft regulation, corporations as prescribers of norms, monitoring and enforcement of business behaviour, and litigation.
The capture and long-term storage of carbon dioxide from power plants and other industrial installations may prove a key technology in climate change abatement strategies. Regulatory frameworks for carbon capture and storage (CCS) are now being developed in a number of jurisdictions. The European Union produced the first comprehensive legislation on the subject in 2009, which provides a compelling example of challenges associated with the design of regulation dealing with a novel technology. This chapter identifies three issues, each of which reflects aspects of regulatory legitimacy: the extent to which states within a federal or quasi-federal system should have the legal discretion to reject a technology; the way in which regulation provides for opportunities for public participation and engagement in issues concerning the new technology; and whether, and at what point, the state should assume responsibility for storage sites, given the long timescales necessary for secure storage.
Andrew Shoyer, Jung-ui Sul, and Colette van der Ven
This chapter examines the phenomenon of carbon leakage, which is an increase in carbon emissions as a result of businesses moving to other states without carbon reduction measures. Pursuant to the commitments established by the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, many developed states imposed numerous greenhouse gas emission (GHG) targets, while most developing countries have not adopted any carbon reduction measures. Carbon leakage remains an area of great concern to states and industries seeking to reduce carbon emissions, as it has the potential to undermine the effectiveness of carbon reduction measures and hurt the competitiveness of the industries that decide to remain in those states. The chapter outlines the measures taken to combat carbon leakage. Specifically, it highlights carbon leakage prevention measures under the European Union Emissions Trading Scheme and under similar carbon regulation measures in South Africa and the United States.
David Freestone and Clive Schofield
This chapter assesses the legal regime of the Caribbean Sea and Gulf of Mexico. It first examines regional maritime claims before reviewing marine activities, environment, and resources within the Caribbean. It then considers the current status of the delimitation of maritime boundaries in the Caribbean Sea, through agreements as well as judicial settlement. It highlights remaining problems and provides some concluding observations.
Since the early days of modern public international law, the state has been the most important subject thereof. However, today, it is neither the sole, nor necessarily the primary, actor in international (environmental) relations. In recent years, the role of the state and, notably, the ability of the state to address environmental risks and threats, have increasingly come to be scrutinised. While states' standard setting remains important, commentators have argued that the ability and willingness of states to implement and enforce such standards have major weaknesses. Nevertheless, the state remains a truly important actor in international relations. It forms part of international governance, which has become multilevel governance. This article discusses the changing role of the state in international environmental governance. It examines states as authors, addressees, and guardians of international environmental law. The article also considers the over-estimation of Westphalian concepts of sovereignty, international environmental agreements, international environmental obligations, statehood as an element of a global system of environmental governance, and the role of the state in the transformation of the international legal system.
This chapter explores the legal understanding of climate change damages in public international law. It shows that international law has been dealing with transboundary damages since its inception. Damages, whether material or immaterial, have been subject to many inter-state disputes presided upon by international courts and tribunals. The United Nations Framework Convention on Climate Change established the Warsaw international mechanism for loss and damage to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change, under the Cancún Adaptation Framework. The Warsaw international mechanism is also tasked with the promotion and the implementation of approaches addressing loss and damage associated with those adverse effects. The chapter also describes the growing trend of states who suffer from climate change seeking remedy from other states for their losses.
Daniel A. Farber
This chapter looks into a specific dimension of adaptation to climate change—disaster risks. It reviews the prospects for increases in disaster risk due to climate change and considers arguments that governments have a duty under international law to respond to these increased risks. Climate change greatly accentuates disasters, putting even more stress on disaster response systems. The list of potential disasters is long, and includes heat waves, droughts, crop failures, wildfires, and outbreaks of illness. Besides the direct threats to human life and property, impacts on food supplies could be severe due to pests, water scarcity, diseases, and weather extremes. The chapter also addresses all phases of the disaster cycle: mitigation, emergency response, compensation, and rebuilding, with rebuilding completing the circle by including (or failing to include) mitigation measures to deal with the risk of another disaster event, and discusses how climate change intensifies problems at each stage.
Alan Boyle and Navraj Singh Ghaleigh
This chapter discusses the various shortcomings of the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. As a ‘framework convention’, the UNFCCC itself does not regulate climate change but only creates a basis for negotiating multilateral solutions. The Convention’s most evident weakness, as demonstrated during the Marrakesh Accords and the Copenhagen negotiations, is the dependence on the ability of the parties to reach the necessary agreement within a timescale. Complementary to the Convention, the Kyoto Protocol establishes quantitative emission restrictions to advanced industrial states, or Annex I parties. However, the Protocol only focuses on greenhouse gas (GHG) emissions rather than on consumption, a reason which led to Canada’s withdrawal. According to international governance scholar Oran Young, these problems emerge as a result of the climate change regime not being based on ‘principles of fairness’ that are broadly acceptable major players.
This chapter discusses India’s role in international climate law and its domestic law on climate change, and demonstrates the limits of its legal position in addressing climate-related threats. Climate change presents a complex challenge for India, which is reflected in its evolving set of climate change laws and policies. Aside from being one of countries most vulnerable to climate change, India is home to some of the world’s poorest people whose lives and property are threatened by climate change. The government has adopted various initiatives to comply with the Kyoto Protocol. The central national initiative on climate change is the National Action Plan on Climate Change (NAPCC). Action under NAPCC is premised on the principle of sustainable development, which for the purposes of climate change means achieving growth while at the same time minimizing greenhouse gas emissions.
This chapter is concerned with EU’s climate change law and its impact on climate change action at a global level. It investigates whether the international climate change regime ‘tightens’ its own standards so as to match EU climate change law. The corpus of EU climate change law is codified in the Climate and Energy Package, which aims to provide a comprehensive and integrated climate change framework. It includes measures promoting the use of renewable energy, specifying and thus helping to monitor and reduce greenhouse gases from fuel, setting standards for new passenger cars, establishing a framework for the geological storage of carbon dioxide, outlining the effort of Member States to reduce greenhouse gases to meet the 2020 commitments, as well as revising the EU emissions trading regime (ETS).
Alex L. Wang
This chapter outlines China’s developing climate change response. The nation is the world’s largest emitter of greenhouse gases and the largest consumer of energy. China’s engagement in the international climate change negotiations can be divided into three phases: a ‘learning’ phase from 1989 to 1995; a shift toward more active participation between 1995 and 2007; and more comprehensive engagement on climate change domestically and internationally around the time of the UN Climate Conference in Bali in 2007. Shortly before the conference, Chinese authorities announced for the first time a comprehensive National Climate Change Program. It presented a range of existing policies created earlier to address other energy and environmental issues.
This chapter examines the scope of existing international law to address ‘climate change-related displacement’, a term used to describe movement where the impacts of climate change affect mobility decisions in some way. It looks into the role of international refugee law, human rights law, and the law on statelessness in protecting people displaced by the impacts of climate change. The extent to which international law and international institutions respond to climate change-related movement and displacement depends upon: whether such movement is perceived as voluntary or forced; the nature of the trigger; whether international borders are crossed; the extent to which there are political incentives to characterize movement as linked to climate change or not; and whether movement is driven or aggravated by human factors, such as discrimination. The chapter also considers the extent to which existing principles on internal displacement provide normative and practical guidance.
U. Rashid Sumaila
This chapter describes the literature of adaptation law in the context of international ocean governance. Adaptation law consists of rules aimed at minimizing the social costs associated with human response to climate impacts. These can be used to shape the behaviour of private actors or public institutions. The law sometimes might provide incentives to make enterprises more resilient as it makes capital unnecessarily stranded during climate change. In order to illustrate the challenges of implementation in the ocean context, the chapter focuses on two examples: international fisheries and ‘mari-engineering’. International fisheries represent ongoing ocean use and regulated by a well-developed body of international law. Due to the wide range of possible climate impacts and adaptive responses, proactive changes to existing fisheries rules in anticipation of climate change fit into the category of general adaptation law, while mari-engineering is engineering the seas to slow or halt climate change impacts.
This article examines three concepts that have emerged to respond to collective environmental concerns:‘common areas’, ‘common heritage’, and ‘common concern’. As will become apparent, the impact of these three concepts has been felt less in the development and application of customary law than in the development of treaty-based regimes. Today, such regimes institutionalise many collective environmental concerns, and provide settings in which states' commitments can be adjusted and refined on an ongoing basis. Within these regimes, it has also been possible to develop compliance procedures that are actually invoked and which reflect the collective nature of states' interest in environmental protection. To protect areas or resources beyond state jurisdiction, and to address common environmental concerns, international environmental law has not merely had to undergo a significant conceptual expansion, but has also had to do so against the grain of the foundational structures of international law.
This chapter examines the various common concerns of humankind. The concept has found its most explicit reference in relation to climate change, in the United Nations Framework Convention on Climate Change (UNFCCC), and the conservation of biological diversity in the Convention on Biological Diversity. It encompasses aspects of the global environment that, by virtue of their significance and the need for collective action to protect them, have been designated as common concern of humanity, either in treaties or through decisions of the United Nations General Assembly. The concept has, over the years, been the subject of considerable scholarship. Without delving into a discussion of customary law, this chapter proceeds on the basis that the common concern of humankind can reasonably be described as a principle of international environmental law against the interlinked backdrop of poverty eradication, economic development, energy availability and use, and climate change.
The Montreal Protocol on Substances That Deplete the Ozone Layer was among the first international agreements in which a specific non-compliance procedure was envisaged, and it is generally held to be the most developed example to date. Non-compliance procedures have become rather prevalent in international environmental law. Allowing for variations across regimes, most mechanisms have at least one compliance committee, usually composed of representatives of a limited number of parties (eight to fifteen) to the underlying multilateral environmental agreement and reporting back to the plenary body set up by that agreement (often dubbed the conference of the parties or meeting of the parties). Compliance (or non-compliance) procedures are usually said to exist, and be necessary, in international environmental protection because the environment cannot, for a number of reasons, be entrusted to the workings of traditional international law.
Compliance Theory: Compliance, Effectiveness, and Behaviour Change in International Environmental Law
Ronald B. Mitchell
International lawyers and legal scholars often assess the effects of international environmental agreements (IEAs) in terms of the extent to which states comply with their commitments. International relations scholars tend to examine IEA effects through a broader set of questions. They are concerned with any behavioural or environmental changes that can be attributed to an IEA – whether these changes involve compliance or not and regardless of whether these changes were desired, unintended, or even perverse. International relations scholars also focus on the reasons why states change their behaviour and what aspects, if any, of an IEA explain those behavioural changes. To see the difference between these approaches, consider four categories of behaviour: treaty-induced compliance, coincidental compliance, good faith non-compliance, and intentional non-compliance. This article reviews the theoretical terrain and shows that nominally ‘competing’ perspectives have different insights to offer those seeking to improve the practice of international environmental law.