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.
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.
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.
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 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.
This chapter assesses the ways in which compliance has been addressed under the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It highlights the different merits of assessing and promoting compliance with international commitments on climate change, as it goes beyond the measuring, reporting, and verification of relevant data. In particular, compliance mechanisms stabilize cooperation and enhance effective implementation by helping to build and maintain trust, address capacity problems, clarify rule ambiguities, and protect against free-riding. The politics of compliance mechanisms involves balancing two considerations. First, any compliance mechanism implies some level of multilateral supervision of national implementation and thus limits national choices. Second, compliance mechanisms can build trust and confidence and ensure effective implementation of commitments, while non-compliance completely undermines the agreement.
Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea
This chapter explores key normative features of the legal and institutional framework for areas beyond national jurisdiction (ABNJ) and their applicability to the conservation of marine biodiversity. It considers gaps and disconnects in that framework and global and regional initiatives to develop the legal and institutional framework for conservation and sustainable use of marine biodiversity in ABNJ. It suggests that the biodiversity conservation elements of any multilateral agreement adopted under the umbrella of the UN Nations Convention on the Law of the Sea (LOSC) should be designed to implement the spirit and intent of Part XII provisions of the LOSC, rather than radically changing the basic principles and inherent balance of the law of the sea.
This article explores some of the critical approaches relevant to international environmental law, and considers how they have been deployed to analyse and critique the underlying assumptions of international environmental law and policy. It looks at feminist approaches, post-colonial approaches, critiques of development, the anti-globalisation/global justice movement, and the environmental justice movement. The article provides a brief overview of the relevant scholarly literature and describes the ways in which activism has built on (or developed) these insights. In particular, it discusses feminist theory, feminist engagement with development and environment, feminist engagement with international law, post-colonial theory and international law, approaches from civil society, the concept of ecological debt, development and post-development, a post-development perspective on sustainable development, and globalisation and anti-globalisation.
This article focuses on the various ‘twilight’ norms at the bottom of the normative hierarchy of modern international environmental law, such as ‘precaution’, ‘polluter pays’, ‘common but differentiated responsibilities’, ‘equitable utilisation of shared natural resources’, ‘intergenerational equity’, ‘common concern of mankind’, and ‘sustainable development’. It discusses these ‘twilight’ norms in current international environmental law, and examines how legal experts and scholars assess their nature and normative quality. Given the ongoing controversy and considerable confusion concerning the status of these norms, as well as the roles they play and the effects they have, it is useful to analyse the phenomenon of ‘relative normativity’ in current international environmental law in more detail. Ronald Dworkin's legal theory, which separates ‘policies’ from ‘legal principles’ and ‘legal rules’, may help in this respect. The article also considers the principle not to cause transboundary environmental damage and environmental impact assessment.
International law, of which international environmental law is a part, shapes and constrains state behaviour. Essentially, it tells states what they are permitted to do, what they are prohibited from doing, and what they are required to do. In this respect, international law is indistinguishable from domestic law. In other respects, however, domestic and international law could not be more different. Domestic law develops and is applied within a vertical system of governance, with a legislature that creates law, a judiciary that interprets law, and an executive that enforces law. International law, by contrast, is rooted to a horizontal system – states at once make, interpret, and enforce international law. This article presents an economic theory of international environmental law, showing how international law can restructure incentives, making it in the interest of states to change their behaviour, and so protect the environment. It examines customary law, theory of treaty design, treaty participation, minimum participation, compliance, narrow and deep versus broad and shallow treaties, tipping treaties, trade restrictions, asymmetric countries, and payment compensation.
Navraj Singh Ghaleigh
This chapter presents an economic analysis of climate change and international climate change law. From an economic perspective, the environment becomes a scarce resource which must be allocated between competing ends. The economics of climate change draws mainly on the two foundational insights of economics. The first is that the free exchange of goods tends to move resources to their highest valued use, in which case the allocation of resources is said to be ‘Pareto-efficient’. The second is that economic agents respond to incentives. Economic agents are rational utility maximizers, meaning that they will undertake those actions which raise their level of utility. The chapter examines economist Ronald Coase’s article The Problem of Social Cost, which deals with externalities, the cost or benefit that affects a party who did not choose to incur that cost or benefit, and applies it to pollution and emissions trading.