Pub Date : 2022-11-01DOI: 10.1017/S2047102522000383
T. Etty, Josephine A. W. van Zeben, C. Carlarne, Leslie‐Anne Duvic‐Paoli, Bruce R. Huber, Anna Huggins
It is axiomatic that law evolves in response to change, including ecological change. Sometimes change is slow, with the law taking decades to evolve. Sometimes it is sudden and dramatic, or at least appears that way at first glance. Either way, the law evolves to accommodate changing social norms, changing political and economic conditions, and changing physical and ecological realities. The field of transnational environmental law is defined by efforts to envision and achieve changes in the rule of law. Notable legal evolution has come from projects at the intersection of human rights and the environment, climate justice, private law regimes for environmental protection, rights of/for nature,
{"title":"The Possibility of Radical Change in Transnational Environmental Law","authors":"T. Etty, Josephine A. W. van Zeben, C. Carlarne, Leslie‐Anne Duvic‐Paoli, Bruce R. Huber, Anna Huggins","doi":"10.1017/S2047102522000383","DOIUrl":"https://doi.org/10.1017/S2047102522000383","url":null,"abstract":"It is axiomatic that law evolves in response to change, including ecological change. Sometimes change is slow, with the law taking decades to evolve. Sometimes it is sudden and dramatic, or at least appears that way at first glance. Either way, the law evolves to accommodate changing social norms, changing political and economic conditions, and changing physical and ecological realities. The field of transnational environmental law is defined by efforts to envision and achieve changes in the rule of law. Notable legal evolution has come from projects at the intersection of human rights and the environment, climate justice, private law regimes for environmental protection, rights of/for nature,","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"447 - 461"},"PeriodicalIF":4.3,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46744906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-20DOI: 10.1017/S2047102522000322
Björn Hoops
Abstract Ownership has been a key tool in the exploitation of nature for centuries. However, ownership could also shield natural entities from extraction and pollution if it were vested in them, rather than in humans or corporations. Through a case study of German constitutional property law, this article examines the normative content of this constitutional right. It argues that in owning themselves, natural entities would have numerous tools to fend off human interference with their self-determination. Constitutional property law would require any harmful activity affecting the natural entity to be based upon legislation and necessary to achieve a public purpose. The natural entity would enjoy broader access to justice. Courts would also often award appropriate remedies; where the natural entity would be awarded only compensation, this would be unsatisfactory because money cannot replace nature. The article finds that constitutional property law offers the potential for further protection from human interference, which has not been realized because of anthropocentric value judgments prevalent in German legal doctrine. Ecocentric approaches to ownership and invalidity as a standard remedy would play an important role in unlocking the full potential of ownership for environmental protection.
{"title":"What If the Black Forest Owned Itself? A Constitutional Property Law Perspective on Rights of Nature","authors":"Björn Hoops","doi":"10.1017/S2047102522000322","DOIUrl":"https://doi.org/10.1017/S2047102522000322","url":null,"abstract":"Abstract Ownership has been a key tool in the exploitation of nature for centuries. However, ownership could also shield natural entities from extraction and pollution if it were vested in them, rather than in humans or corporations. Through a case study of German constitutional property law, this article examines the normative content of this constitutional right. It argues that in owning themselves, natural entities would have numerous tools to fend off human interference with their self-determination. Constitutional property law would require any harmful activity affecting the natural entity to be based upon legislation and necessary to achieve a public purpose. The natural entity would enjoy broader access to justice. Courts would also often award appropriate remedies; where the natural entity would be awarded only compensation, this would be unsatisfactory because money cannot replace nature. The article finds that constitutional property law offers the potential for further protection from human interference, which has not been realized because of anthropocentric value judgments prevalent in German legal doctrine. Ecocentric approaches to ownership and invalidity as a standard remedy would play an important role in unlocking the full potential of ownership for environmental protection.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"475 - 500"},"PeriodicalIF":4.3,"publicationDate":"2022-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49055023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-06DOI: 10.1017/S2047102522000334
A. Putzer, T. Lambooy, Ignace Breemer, A. Rietveld
Abstract Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.
{"title":"The Rights of Nature as a Bridge between Land-Ownership Regimes: The Potential of Institutionalized Interplay in Post-Colonial Societies","authors":"A. Putzer, T. Lambooy, Ignace Breemer, A. Rietveld","doi":"10.1017/S2047102522000334","DOIUrl":"https://doi.org/10.1017/S2047102522000334","url":null,"abstract":"Abstract Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"501 - 523"},"PeriodicalIF":4.3,"publicationDate":"2022-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48903906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-26DOI: 10.1017/S204710252200022X
C. Parker, Lucinda Sheedy-Reinhard
Abstract This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.
{"title":"Are Banks Responsible for Animal Welfare and Climate Disruption? A Critical Review of Australian Banks’ Due Diligence Policies for Agribusiness Lending","authors":"C. Parker, Lucinda Sheedy-Reinhard","doi":"10.1017/S204710252200022X","DOIUrl":"https://doi.org/10.1017/S204710252200022X","url":null,"abstract":"Abstract This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"603 - 628"},"PeriodicalIF":4.3,"publicationDate":"2022-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42117977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-15DOI: 10.1017/S2047102522000206
Y. Naiki, J. Rakpong
Abstract This article addresses the impacts of the carding system (green, yellow, red) of the European Union (EU) Regulation on illegal, unreported and unregulated (IUU) fishing on the fisheries laws of third countries. Specifically, it analyzes Thailand's national legal reforms, which followed interactions between the EU and Thailand during the yellow card period. Building on past research on the EU's use of market power to exert regulatory influence on third countries, the article explores other factors that might encourage third countries to engage in national regulatory reforms: the EU's powers of expertise, monitoring, and agenda-setting. Finally, the article also considers the legitimacy of the EU's regulatory power over third countries.
{"title":"EU–Third Country Dialogue on IUU Fishing: The Transformation of Thailand's Fisheries Laws","authors":"Y. Naiki, J. Rakpong","doi":"10.1017/S2047102522000206","DOIUrl":"https://doi.org/10.1017/S2047102522000206","url":null,"abstract":"Abstract This article addresses the impacts of the carding system (green, yellow, red) of the European Union (EU) Regulation on illegal, unreported and unregulated (IUU) fishing on the fisheries laws of third countries. Specifically, it analyzes Thailand's national legal reforms, which followed interactions between the EU and Thailand during the yellow card period. Building on past research on the EU's use of market power to exert regulatory influence on third countries, the article explores other factors that might encourage third countries to engage in national regulatory reforms: the EU's powers of expertise, monitoring, and agenda-setting. Finally, the article also considers the legitimacy of the EU's regulatory power over third countries.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"629 - 653"},"PeriodicalIF":4.3,"publicationDate":"2022-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44708719","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-15DOI: 10.1017/S204710252200019X
B. Mayer, Z. Ding
Abstract Climate change mitigation calls for the limitation and reduction of greenhouse gas (GHG) emissions across all sectors. However, limiting GHG emissions from aviation has proven to be problematic for technical reasons (e.g., lack of low-carbon alternatives) as well as legal reasons (e.g., international aviation does not readily fall within any one state's jurisdiction). Relevant initiatives have followed two streams. At the international level, the International Civil Aviation Organization (ICAO) has adopted technical standards and, more recently, a market-based mechanism to limit emissions from international civil aviation. In parallel, states have adopted their own policies and measures to regulate emissions from both domestic and international aviation, ranging from tax and technical standards to traffic management and infrastructural development. While much of the literature on climate change mitigation in the aviation sector has focused on international efforts, this article reveals the importance of understanding the tensions and complementarities of the two streams.
{"title":"Climate Change Mitigation in the Aviation Sector: A Critical Overview of National and International Initiatives","authors":"B. Mayer, Z. Ding","doi":"10.1017/S204710252200019X","DOIUrl":"https://doi.org/10.1017/S204710252200019X","url":null,"abstract":"Abstract Climate change mitigation calls for the limitation and reduction of greenhouse gas (GHG) emissions across all sectors. However, limiting GHG emissions from aviation has proven to be problematic for technical reasons (e.g., lack of low-carbon alternatives) as well as legal reasons (e.g., international aviation does not readily fall within any one state's jurisdiction). Relevant initiatives have followed two streams. At the international level, the International Civil Aviation Organization (ICAO) has adopted technical standards and, more recently, a market-based mechanism to limit emissions from international civil aviation. In parallel, states have adopted their own policies and measures to regulate emissions from both domestic and international aviation, ranging from tax and technical standards to traffic management and infrastructural development. While much of the literature on climate change mitigation in the aviation sector has focused on international efforts, this article reveals the importance of understanding the tensions and complementarities of the two streams.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"12 1","pages":"14 - 41"},"PeriodicalIF":4.3,"publicationDate":"2022-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47429289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-11DOI: 10.1017/S2047102522000127
Wei Lin
Abstract Multilateral development banks (MDBs) are crucial in promoting economic growth through their project finance activities. Meanwhile, to address negative effects arising from their development projects, MDBs increasingly have focused their attention on the environmental and social impacts of their supported projects in recent decades. This article analyzes the relationship between the Environmental and Social Framework (ESF) adopted by the Asian Infrastructure Investment Bank (AIIB) and multilateral environmental agreements (MEAs). It argues that better compliance with MEAs by the AIIB and its borrowers in implementing AIIB-supported development projects will be achieved only if its independent accountability mechanism (IAM) can actively examine project compliance with the ESF in the light of MEAs. The AIIB has an opportunity to provide leadership in promoting the fulfilment of MEA obligations in development finance. However, this is contingent on ensuring effective oversight by its newly established IAM moving forward.
{"title":"Bringing Multilateral Environmental Agreements into Development Finance: An Analysis of the Asian Infrastructure Investment Bank's Environmental and Social Framework","authors":"Wei Lin","doi":"10.1017/S2047102522000127","DOIUrl":"https://doi.org/10.1017/S2047102522000127","url":null,"abstract":"Abstract Multilateral development banks (MDBs) are crucial in promoting economic growth through their project finance activities. Meanwhile, to address negative effects arising from their development projects, MDBs increasingly have focused their attention on the environmental and social impacts of their supported projects in recent decades. This article analyzes the relationship between the Environmental and Social Framework (ESF) adopted by the Asian Infrastructure Investment Bank (AIIB) and multilateral environmental agreements (MEAs). It argues that better compliance with MEAs by the AIIB and its borrowers in implementing AIIB-supported development projects will be achieved only if its independent accountability mechanism (IAM) can actively examine project compliance with the ESF in the light of MEAs. The AIIB has an opportunity to provide leadership in promoting the fulfilment of MEA obligations in development finance. However, this is contingent on ensuring effective oversight by its newly established IAM moving forward.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"655 - 681"},"PeriodicalIF":4.3,"publicationDate":"2022-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44870890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-11DOI: 10.1017/S2047102522000176
P. Lawrence
Abstract At first blush, normative arguments justifying representation of future generations and nature appear to rest on contradictory values. This article argues, however, that there are strong synergies between these discourses. Arguments for institutions for future generations based on human rights are compared with justifications for proxy representation of nature based on ecological justice, Indigenous ecological justice and socio-ecological justice. Case studies involving the Welsh Commissioner for Future Generations, the Aotearoa New Zealand Parliamentary Commissioner for the Environment, and ascribing legal personality to rivers in Australia and Aotearoa New Zealand, are presented to demonstrate that representing future generations and nature reflect mutually supporting values. Building on these synergies is vital for reform efforts.
{"title":"Justifying Representation of Future Generations and Nature: Contradictory or Mutually Supporting Values?","authors":"P. Lawrence","doi":"10.1017/S2047102522000176","DOIUrl":"https://doi.org/10.1017/S2047102522000176","url":null,"abstract":"Abstract At first blush, normative arguments justifying representation of future generations and nature appear to rest on contradictory values. This article argues, however, that there are strong synergies between these discourses. Arguments for institutions for future generations based on human rights are compared with justifications for proxy representation of nature based on ecological justice, Indigenous ecological justice and socio-ecological justice. Case studies involving the Welsh Commissioner for Future Generations, the Aotearoa New Zealand Parliamentary Commissioner for the Environment, and ascribing legal personality to rivers in Australia and Aotearoa New Zealand, are presented to demonstrate that representing future generations and nature reflect mutually supporting values. Building on these synergies is vital for reform efforts.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"553 - 579"},"PeriodicalIF":4.3,"publicationDate":"2022-07-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44839394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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