Transnational Environmental Law最新文献

In numerous climate litigation cases before national courts, plaintiffs have referred to the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and/or the Paris Agreement to support their claims. So far, no systematic appraisal has been conducted on how national courts have responded to such references to international climate law and the extent to which they have engaged with it. This article examines 148 cases in which plaintiffs refer to international climate law, mapping and analyzing judgments of national courts that either avoid, align with, or contest this legal framework. The findings indicate that invoking international climate law is not an easy path to success, as courts often have opted to avoid engagement with claims based on international climate law. Yet, in several landmark cases, courts have aligned with international climate law, contributing to the advancement of the objectives of the Paris Agreement.

In a world grappling with escalating agrochemical pollution, this article explores the potential for shifting from a security-centric approach to a human rights-based approach to safeguard health, the environment, and biodiversity. By engaging with European Court of Human Rights jurisprudence related to environmental protection and climate change, the article critically assesses how to address state (in)action regarding pollutants such as pesticides through human rights litigation. In its analysis, the article highlights climate change litigation as a catalyst for change to assert states’ threefold obligations to respect, protect, and realize human rights. It concludes that the legal approaches developed in climate litigation – with regard to both procedural and substantive aspects – provide a strong basis for addressing the human rights impacts of agrochemical harm.

With trade and the environment becoming increasingly interconnected, environmental impact assessments (EIAs) of trade negotiations help to integrate environmental considerations into trade-related treaty making by evaluating potential risks and opportunities, addressing public concerns, and facilitating the introduction of response measures. Despite international efforts, such ‘trade EIAs’ have not yet been universally adopted. At the domestic level, the United States, Canada, and the European Union have pioneered the use of EIAs through their institutionalized procedures for over 20 years. This article examines and compares the relevant practices of these three jurisdictions to identify major patterns and to discuss the pros and cons of existing differences in this area. It argues that the time-tested experience of these jurisdictions could provide benchmarks for consideration in promoting the widespread implementation of trade EIAs through global and regional trade regimes.

Global challenges such as climate change demand transnational responses, including from legal clinics. Building on earlier community legal clinic and international human rights clinic models, transnational legal clinics combine the objectives of legal clinics with the framework of transnational law to work across domestic and international planes. This article focuses on a Canadian–Peruvian legal clinic collaboration to research and draft an amicus curiae brief for landmark climate litigation in Peru. While the global north–south axis of collaboration raises structural challenges, adopting a transnational approach unites participants around the principle of solidarity and decentres assumptions about expertise. A transnational approach also contributes to the progressive development of law, in this case by offering insights into remedies in climate litigation. Overall, we argue that transnational legal clinic collaboration can spur participants’ reflective learning and make substantive contributions to the growing number of climate cases.

Catalyzed by the surge in climate litigation worldwide, this article examines the tension between the moral imperatives of intergenerational justice and the operational constraints of positivist legal frameworks. It hypothesizes that while positivist doctrine prima facie challenges judicial application of intergenerational justice principles, reconciliation is possible through contextually attuned adjudication and evolved conceptions of legal principles for the Anthropocene. The article explores three key litigation strategies: dynamic interpretation of existing rights, application of constitutional future generations clauses, and procedural mechanisms for representing future interests. Building on European climate judgments, it analyzes how these approaches strain positivist tenets and animate separation-of-powers objections. The article argues that addressing interpretive and foundational challenges posed by climate change requires both doctrinal innovation and theoretical reconstruction. It shows how contextual constitutionalism can help courts to acknowledge intergenerational duties while preserving legal determinacy, and explores how positivism might evolve to accommodate multigenerational climate governance. Situating leading cases within debates between positivism and non-positivist theories, the article offers a roadmap for developing a framework of legal validity suited to the era-defining challenge of climate change.

The international community has consistently emphasized the importance of protecting the Amazon rainforest as a global carbon reservoir and climate regulator. Basin states have historically responded by rejecting the ‘internationalization of the Amazon’, arguing that they have sovereign rights to exploit the area under their own development plans. By reaffirming their sovereignty rights over international environmental concerns, they have also excluded the ancestral rights of Indigenous peoples in the basin. This article examines how the principles of absolute sovereignty (‘enclosure’), ‘common heritage of humankind’, and ‘common concern of humankind’ have been incorporated into the discourses, instruments, and practices of international environmental governance of the Amazon. These principles interact through shared anthropocentric, ethnocentric, and state-centric premises. Through an analysis of the Amazon Cooperation Treaty Organization (ACTO), the article finds that despite the discursive rejection of international forces, the basin states appeal to ‘common concern’ to embrace international cooperation while promoting transnational extractive and infrastructure projects through the principle of ‘enclosure’. This produces fragmented governance that legitimizes the expansion of extractivism under sovereign and developmental imaginaries while excluding the self-determination claims and ecological perspectives of the Indigenous peoples of the Amazon.

Predominant climate club research emphasizes state-centric clubs that alter the incentive structure and bargaining context for climate cooperation. This focus on national governments, however, leaves climate clubs vulnerable to political turbulence afflicting individual club members. Subnational governments are an important yet often overlooked type of actor in the club literature. This article contributes to understanding the role and nature of subnational government-led clubs in transnational climate governance and lawmaking through qualitative case studies of the Western Climate Initiative and the C40 Cities Climate Leadership Group. I identify the distinguishing characteristics that these clubs manifest in their membership and functions, as formalized through legal arrangements. I demonstrate that these clubs have the potential to increase structural stability, withstand political changes, and enhance the legitimacy and efficacy of climate action. They do so by functioning not only as organizations that create incentives for committing to legal norms and mechanisms for deterring free riding but also as communities of practice that generate shared understandings, resources, and norms to sustain club cooperation in pursuing a shared commitment to climate action. As such, each club applies a mix of rationalist approaches to benefit generation and constructivist approaches to community building.

Greenhouse gas (GHG) emissions from shipping contribute meaningfully to climate change. Despite significant efforts of the International Maritime Organization over recent decades, existing measures are still inadequate for achieving net-zero GHG emissions in the shipping sector and multilateral negotiations hold little promise for improvement. This article considers the polluter pays principle (PPP) as an alternative or additional pathway for tackling marine GHG emissions. The article focuses on the challenges in identifying polluters, which is the key issue that must be addressed before the PPP can be applied. Specifically, the article presents an analytical framework and examines various approaches to identifying marine GHG emissions polluters. Firstly, it identifies the polluter from a general perspective, using three approaches: examining the issue broadly, reviewing international conventions and European Union initiatives that incorporate the PPP, and analyzing selected domestic legislation reflecting the PPP. The article then focuses on maritime shipping, considering specifically two types of contract of affreightment – charterparties and bills of lading – while highlighting key factors in identifying the polluter. In conclusion, the assessment of causal links, along with operational and management decisions regarding the vessel, attribute the status of primary polluter to the shipowner, demise charterer, and time charterer.

Over the past 20 years, the European Union (EU) has shifted the emphasis of its trade policy from multilateral agreements towards bilateral preferential trade agreements (PTAs) and, more recently, to unilateral policy instruments. In this article we analyze the EU’s growing ambitions in promoting environmental sustainability in the context of these shifts. We advance an analytical and a conceptual argument, focusing on a product group that is highly relevant to the EU’s green transition: aviation fuels. We argue that the increasing hardness and ambition of the EU’s environmental policy instruments on the sustainability of aviation fuels contributes to a trend of ‘unilateralization’ in EU trade policy. Our analysis further illustrates how the complementary qualities of hardness and ambition in the multi-, bi-, and unilateral EU instruments lead to their flexible combination in the EU trade policy mix. Based on these findings, we propose to describe and critically analyze the EU’s current approach as ‘flexilateralism’. The EU has changed from prioritizing multilateralism to a more pragmatic, flexilateral approach, rather than for fully fledged bilateralism or unilateralism. This is what the EU’s more assertive ‘strategic autonomy’ may be about: a flexilateral approach to better address issues such as environmental sustainability with the most useful combination of instruments available.

This article analyzes the application of environmental impact assessment as a tool for climate change mitigation from a global comparative perspective. It firstly confirms that, despite persistent resistance in a few jurisdictions, climate effect assessment is now widely applied on a global scale. Yet the article also shows that this practice has faced recurrent practical and conceptual issues, in particular, concerning the determination of the significance of a project’s climate effect and the assessment of indirect effects. Lastly, this article assesses how states have addressed these issues and identifies good practices. In doing so, the article illustrates the potential of functionalist comparative analysis in advancing our understanding of climate law and suggesting policy-relevant conclusions.