Research Handbook on Transnational Environmental Law 1788119622, 9781788119627

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RESEARCH HANDBOOK ON TRANSNATIONAL ENVIRONMENTAL LAW

RESEARCH HANDBOOKS IN ENVIRONMENTAL LAW This highly topical series addresses some of the most important questions and areas of research in Environmental Law. Each volume is designed by a leading expert to appraise the current state of thinking and probe the key questions for future research on a particular topic. The series encompasses some of the most pressing issues in the field, ranging from climate change, biodiversity and the marine environment through to the impacts of trade, regulation, and sustainable development. Each Research Handbook comprises specially-commissioned chapters from leading academics, and sometimes practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Research Handbooks will be used by academic researchers, post-graduate students, practising lawyers and lawyers in policy circles. Titles in the series include: Research Handbook on Climate Change Mitigation Law Edited by Geert Van Calster, Wim Vandenberghe and Leonie Reins Handbook of Chinese Environmental Law Edited by Qin Tianbao Research Handbook on International Marine Environmental Law Edited by Rosemary Rayfuse Research Handbook on Biodiversity and Law Edited by Michael Bowman, Peter Davies and Edward Goodwin Research Handbook on Fundamental Concepts of Environmental Law Edited by Douglas Fisher Research Handbook on Freshwater Law and International Relations Edited by Mara Tignino and Christian Bréthaut Research Handbook on Environment and Investment Law Edited by Kate Miles Research Handbook on Law, Environment and the Global South Edited by Philippe Cullet and Sujith Koonan Research Handbook on Transnational Environmental Law Edited by Veerle Heyvaert and Leslie-Anne Duvic-Paoli

Research Handbook on Transnational Environmental Law Edited by

Veerle Heyvaert Professor, Department of Law, London School of Economics and Political Science, UK

Leslie-Anne Duvic-Paoli Lecturer, The Dickson Poon School of Law, King’s College London, UK

RESEARCH HANDBOOKS IN ENVIRONMENTAL LAW

Cheltenham, UK • Northampton, MA, USA

© Veerle Heyvaert and Leslie-Anne Duvic-Paoli 2020

Cover image: Ivan Bandura on Unsplash All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020944598 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781788119634

02

ISBN 978 1 78811 962 7 (cased) ISBN 978 1 78811 963 4 (eBook)

To Thijs Etty

Contents

List of contributorsix Prefacexiv Table of casesxv Table of legal instrumentsxx PART I

A THEORY OF TRANSNATIONAL ENVIRONMENTAL LAW

1

The meanings of transnational environmental law Veerle Heyvaert and Leslie-Anne Duvic-Paoli

2

Exploring transnational legal orders: using transnational environmental law to strengthen the global regulation of black carbon for the benefit of the Arctic region Kati Kulovesi

3

An unknown past, an unequal present, and an uncertain future: transnational environmental law through three research challenges Natasha Affolder

4

Methodological challenges of transnational environmental law Elisa Morgera, Louisa Parks and Mika Schroeder

PART II

2

18

32 48

UNDERSTANDING TRANSNATIONAL ENVIRONMENTAL GOVERNANCE

5

‘Interglobalsuprasubandtransialidocious’: mapping and disentangling transnational environmental governance Till Markus and Olaf Dilling

6

Regulatory instruments of transnational environmental governance Jerneja Penca

7

Transnational environmental regulation and evolving approaches to compliance Aleksandra Čavoški

104

8

Transnational environmental governance before the courts Suzanne Kingston

126

9

Facing the legitimacy challenge: law as a disciplining force for transnational environmental governance Josephine van Zeben

vii

67 88

145

viii  Research handbook on transnational environmental law PART III

CONSEQUENCES OF THE TRANSNATIONALIZATION OF ENVIRONMENTAL GOVERNANCE

10

The transnationalization of environmental constitutionalism Louis J. Kotzé

11

Regime interlinkages: examining the connections between transnational climate change and biodiversity law Jonathan Verschuuren

12

Global values, transnational expression: from Aarhus to Escazú Emily Barritt

PART IV

159

178 198

NON-STATE ACTORS AS A FOCAL POINT OF TRANSNATIONAL ENVIRONMENTAL LAW

13

The role of subnational actors in transnational climate change law Jolene Lin

216

14

The responsibilities of corporations: new directions in environmental litigation Lisa Benjamin

229

15

Art and activism in transnational environmental governance Benjamin J. Richardson

248

PART V

CROSSING JURISDICTIONAL AND DISCIPLINARY BORDERS

16

Sovereignty, unilateralism, and the transboundary reach of environmental protection 268 An Hertogen

17

Vice or virtue? Flexibility in transnational environmental law Sébastien Jodoin, Ling Chen and Carolina Gueiros

284

18

Judicial transnationalization Geetanjali Ganguly

301

19

Transnational litigation: what can we learn from Chevron–Ecuador?318 Robert V. Percival

20

Human rights in a changing environment Ole W. Pedersen

340

21

Intersections between climate change and the World Trade Organization Shawkat Alam

352

PART VI 22

CONCLUDING REMARKS

Concluding remarks Veerle Heyvaert and Leslie-Anne Duvic-Paoli

369

Index375

Contributors

Natasha Affolder is a professor at the Allard School of Law, University of British Columbia. Her teaching and research in the areas of transnational law and environmental governance address some of the most challenging and complex issues of our time. Her scholarship spans a wide range of substantive areas including international law, law and sustainability, transnational law, and climate law. She currently leads a research project that investigates how environmental laws travel. Shawkat Alam is Professor of Law and Director of the Centre for Environmental Law at Macquarie University. His primary teaching and research expertise lies in the areas of international law, environmental law, and sustainable development. His research focuses on the opportunities and challenges faced by developing economies to achieve sustainable development by examining legal, institutional and policy frameworks. He is the author of a monograph, Sustainable Development and Free Trade (Routledge, 2008), and has co-edited several books including International Natural Resources Law, Investment and Sustainability (Routledge, 2018) and International Environmental Law and the Global South (Cambridge, 2015). Emily Barritt is a lecturer in tort law and the Co-Director of the Transnational Law Institute at the Dickson Poon School of Law, King’s College London. Her research focuses on environmental democracy, access to justice, public participation, stewardship and climate change adjudication. Her forthcoming monograph with Hart Publishing is entitled The Foundations of the Aarhus Convention: Environmental Democracy, Rights and Stewardship. She teaches on the undergraduate tort and environmental law modules and runs a special module on courts and social change at HMP Belmarsh. Emily is a member of the Climate Law and Governance Centre at KCL. Lisa Benjamin is an assistant professor at Lewis & Clark Law School, Portland, Oregon, US. Her research investigates the intersection of corporate, energy and environmental law with a focus on climate change and climate risk. She also researches climate change from the perspective of developing countries. She is currently a member of the Compliance Committee (Facilitative Branch) of the United Nations Framework Convention on Climate Change (UNFCCC) and has been an adviser to, and member of, the Bahamian national delegation to the UNFCCC. Her forthcoming monograph with Cambridge University Press is entitled, Companies and Climate Change: Theory and Law in the United Kingdom. Aleksandra Čavoški is a professor at the University of Birmingham where she teaches and researches on environmental law. Her research agenda is interdisciplinary and explores the intersection of environmental law and other disciplines, in particular politics, science, public policy and language. Ling Chen is a DCL candidate at the McGill University Faculty of Law and a Joseph-Armand Bombardier scholar with the Social Sciences and Humanities Research Council of Canada. He previously worked for the Centre for International Governance Innovation, where he ix

x  Research handbook on transnational environmental law researched and wrote about market-based approaches and accountability mechanisms in multilateral environmental agreements. He holds an LLM from the University of Toronto. Before moving to Canada, he completed an LLB, a BA, and an LLM at Beihang University in Beijing. Olaf Dilling (Dr jur.) works as an attorney-at-law (Rechtsanwalt) in Berlin, with a specialization in public law and environmental law. Previously, he has been a researcher at the Helmholtz Centre for Environmental Research in Leipzig and has lectured at the universities of Bremen and Oldenburg (Germany). He has published in environmental law and legal theory. Leslie-Anne Duvic-Paoli is a lecturer in law and Deputy Director of the Climate Law and Governance Centre at the Dickson Poon School of Law, King’s College London. She teaches and researches public international law, with a focus on environmental principles, energy transition law and public participation. Leslie-Anne is the author of The Prevention Principle in International Environmental Law (Cambridge University Press, 2018). She is a member of the Transnational Law Institute at KCL and holds the 2020/2021 ‘Major Societal Changes’ Chair at Sorbonne University – Paris Institute for Advanced Study. Geetanjali Ganguly is a PhD candidate at the LSE Law Department and researcher/tipstaff (judicial clerk) to Justice Brian Preston of the Land and Environment Court of New South Wales in Australia. She is also an assistant editor for the Cambridge journal Transnational Environmental Law. Her doctoral research examines the role of climate science in transnational climate litigation, with a focus on actors such as the Intergovernmental Panel on Climate Change (IPCC), domestic courts and ENGO litigants. She has published on the topic of transnational climate litigation and has taught undergraduate courses on environmental law and European Union law and a postgraduate course on legal research. Carolina Gueiros is a DPhil candidate at the University of Oxford’s School of Geography and the Environment. Her research is focused on processes of policy change, diffusion, and innovation to address deforestation in the Brazilian Amazon. She holds a Master’s of Environmental Science from Yale University, a Master’s of Human Rights Studies from Columbia University, an LLM in Environmental Law from Pace University School of Law, and a Bachelor’s degree in Law from the Universidade Federal do Pará, Brazil. She has previously practised environmental law in the Brazilian Amazon and managed a legal consultancy firm in New York City. An Hertogen is a senior lecturer at Faculty of Law of the University of Auckland in Auckland, New Zealand, where she researches and teaches international law. Her two major current research projects deal with the concept of good neighbourliness in international law, and with international law in Aotearoa/New Zealand. She is a graduate of the University of Auckland, Columbia University and the KULeuven in Belgium. Before starting her academic career, she practised as an EU and competition lawyer at Linklaters in Brussels. Veerle Heyvaert is a professor of law at the London School of Economics and Political Science (LSE) and Founding Editor-in-Chief of the journal Transnational Environmental Law (with Thijs Etty). She teaches and conducts research on theory and practice of regulation, environmental law and European Union law. She has published extensively on issues of transnational environmental law and governance, including a monograph entitled Transnational Environmental Regulation and Governance. Purpose, Strategies and Principles (Cambridge University Press, 2019).

Contributors  xi Sébastien Jodoin is an assistant professor in the Faculty of Law of McGill University and holds the Canada Research Chair (tier 2) in Human Rights and the Environment. He is also a member of the McGill Centre for Human Rights and Legal Pluralism and an Associate Member of both the Max Bell School of Public Policy and the McGill School of Environment. His research focuses on two broad themes: the relationship between human rights and efforts to address complex environmental problems and the study of climate legal, policy, and governance processes in a comparative and transnational perspective. Suzanne Kingston is Professor of Law at University College Dublin and Barrister-at-Law practising at the Irish Bar, appearing regularly before the Irish and European courts. She served as a référendaire (legal advisor) in the cabinet of Advocate General Geelhoed at the European Court of Justice, Luxembourg, from 2004 to 2006, and has been an international visiting professor of law at Columbia Law School, New York. Louis J. Kotzé is Research Professor of Law at the Faculty of Law, North-West University, South Africa. He is also Senior Professorial Fellow in Earth System Law at the University of Lincoln, United Kingdom. His research broadly encompasses three interrelated themes that he approaches from a transnational perspective: human rights, socio-ecological justice and environmental constitutionalism; law and the Anthropocene; and Earth system law. He has over 150 publications on these themes. He is Assistant Editor of the Earth System Governance journal. Kati Kulovesi is Professor of International Law and Co-Director of the Center for Climate Change, Energy and Environmental Law at the Law School of the University of Eastern Finland. She is Docent of International Law at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki, and a senior associate researcher at the Institute for European Studies, Vrije Universiteit Brussels. She holds LLM and PhD degrees from the London School of Economics and Political Science. Her research focuses on climate change law and she is the Principal Investigator in the ClimaSlow ERC project. Jolene Lin is Associate Professor of Law and Director of the Asia-Pacific Centre of Environmental Law at the National University of Singapore. Jolene’s research focuses on climate change law and transnational environmental law. She has published in leading journals including the American Journal of International Law and the European Journal of International Law and is author of Governing Climate Change: Global Cities and Transnational Lawmaking (Cambridge University Press, 2018). Jolene graduated in law from the London School of Economics and Political Science. She holds an LLM from New York University and a PhD in law from Erasmus University Rotterdam. Till Markus (PD, Dr jur., LLM) is a senior researcher at the Helmholtz Centre for Environmental Research in Leipzig (Germany) and a lecturer in environmental law at the University of Bremen (Germany). He has published widely in the areas of environmental law, law of the sea, comparative law, and legal theory. Elisa Morgera is Professor of Global Environmental Law at Strathclyde University Law School, Glasgow, UK. She specializes in international, EU and comparative environmental law, and has researched specifically the interactions of biodiversity law with human rights, ocean governance and corporate accountability. Elisa was the Principal Investigator of the BENELEX project – ‘Benefit-sharing for an equitable transition to the green economy – the

xii  Research handbook on transnational environmental law role of law’ (European Research Council grant 335592) and the MARINE BENEFITS project – ‘Sharing the benefits of sustainable fisheries: from global to local legal approaches to marine ecosystem services for poverty alleviation’ (ESPA Grant No. NE/M007650/1, 2015–2017). Louisa Parks is Associate Professor of Political Sociology at the School of International Studies and the Department of Sociology and Social Research of the University of Trento, Italy. She is the author of Benefit-Sharing in Environmental Governance: Local Experiences of a Global Concept, published in 2020 by Routledge, and a former research fellow for the BENELEX project on benefit-sharing in global environmental law. She has published on community protocols, the discursive spaces for local communities’ views in the Convention on Biological Diversity, and more broadly on social movements, civil society, and the impacts of campaigning for transnational governance. Ole W. Pedersen is Professor of Environmental Law at Newcastle Law School where he teaches and researches a wide range of environmental law subjects. His research focuses on the role of courts in adjudicating environmental issues, regulatory enforcement, the theoretical foundations of environmental law, the relationship between human rights and the environment, and the nature of environmental law scholarship. He is joint author of Environmental Law (9th edn, Oxford University Press, 2017), Environmental Adjudication (with Emma Lees, Hart/Bloomsbury, 2020) and editor of Perspectives on Environmental Law Scholarship (Cambridge University Press, 2018). Jerneja Penca is a research fellow and Head of Academic Affairs at the Euro-Mediterranean University, Slovenia. Her publications in the area of environmental governance span biodiversity, climate change and fisheries regimes, as well as plastic pollution and ocean governance. She holds a PhD in law from the European University Institute (EUI) and LLM from the University of Nottingham. Previously, she held a postdoctoral position at the Pluricourts, University of Oslo, and taught environmental law at two faculties in Slovenia. Robert V. Percival is the Robert F. Stanton Professor of Law and the Director of the Environmental Law Program at the University of Maryland Carey School of Law. He is a graduate of Macalester College (BA) and Stanford University (JD/MA). Prior to joining the Maryland faculty, he served as a law clerk for US Supreme Court Justice Byron R. White and as a senior attorney for the Environmental Defense Fund. He is the principal author of the most widely used casebook in environmental law in the US, Environmental Regulation: Law, Science & Policy, now in its eighth edition. Benjamin J. Richardson is Professor of Environmental Law at the University of Tasmania. His peripatetic career over the past 25 years has been spent mostly abroad in universities in Canada, the UK and New Zealand, but he eventually returned home to Australia in 2014. His research interests include climate change law, corporate social responsibility and Aboriginal legal issues. His community engagement work includes serving in the Australian Panel of Experts of Environmental Law and the Independent Tasmanian Science Council. Mika Schroeder is a doctoral researcher at Strathclyde University Law School, Glasgow, UK. She specializes in international and comparative environmental law, with key interests pertaining to the recognition and safeguarding of community rights, knowledge and perspectives within decision-making processes. She has published on community perspectives in international investment law, local stakeholder participation at the Convention on Biological

Contributors  xiii Diversity, and spatial in/justice within marine spatial planning. She is also a reporter for the International Institute for Sustainable Development (IISD) Reporting Services which provide coverage on international environmental negotiations. Jonathan Verschuuren is Professor of International and European Environmental Law at Tilburg University, the Netherlands. In 2016–2017 he was a Marie Sklodowska Curie fellow at the University of Sydney, and he has an extraordinary professorship at North-West University, South Africa. In 2017, he was awarded the International Union for Conservation of Nature (IUCN) Academy of Environmental Law Senior Scholarship Prize. His research mainly focuses on various legal aspects of climate change, including coastal adaptation, biodiversity aspects and climate smart agriculture. He has written more than 300 publications in the field of environmental law, including several books and many articles in leading refereed journals throughout the world. Josephine van Zeben is Professor of Law and Chair of the LAW Group at Wageningen University, the Netherlands. Her research focuses on polycentric systems of governance and their ability to improve environmental regulation through the active involvement of private and public actors. She is particularly passionate about interdisciplinary research in the life and social sciences with a view to finding creative solutions to pressing environmental problems. She has studied law in several countries, allowing her to adopt a comparative, as well as interdisciplinary, perspective to her work.

Preface

Transnational environmental law is a young and dynamic area of research which responds to our pressing need to better understand and conceptualize the complexities of legal and regulatory responses to environmental problems. The purpose of this Handbook is to unpack the intricacies of this field of law to provide an accessible and broad-ranging guide to the major concepts, analytical tools, approaches and debates that shape transnational environmental law. By offering a detailed overview and critical discussion of the key themes and perspectives that characterize this burgeoning new discipline, we hope that the book will serve as an essential, state-of-the-art guide for further research. We have assembled in this Handbook a rich collection of contributions that offer stimulating discussion on existing transnational legal phenomena and showcase the impressive variety, the depth and the potential for innovation of this budding research field. We are very grateful to the contributors who have joined this project, leading and emerging scholars from around the world who have responded with enthusiasm to the project and have written thought-provoking and original pieces. The chapters were reviewed during a one-day event held in November 2018 at the Dickson Poon School of Law, King’s College London (KCL). Funding for the project was kindly provided by the Law Department at the London School of Economics and Political Science (LSE) and the Transnational Law Institute at KCL. We wish to express our gratitude to Simone Davies and Mita Vaghji for their support in organizing the review sessions. We are indebted to the Edward Elgar Publishing’s staff, and in particular Laura Mann, for their professional and invaluable assistance throughout the production of this Handbook. Our thanks also go to Sakshi Rai, a graduate of both KCL and the LSE, for her generous help in the editing of the book. Veerle Heyvaert and Leslie-Anne Duvic-Paoli April 2020

xiv

Table of cases

INTERNATIONAL African Commission on Human and People’s Rights v Republic of Kenya (App. No. 006/2012) (26 May 2017)  343 Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R (17 December 2007) 355 Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R (20 August 1999) 361 Canada – Certain Measures Relating to the Feed-In Tariff Program / Canada – Certain Measures Affecting the Renewable Energy Generation Sector, WT/DS412/AB/R and WT/DS426/AB/R (6 May 2013)  358, 359, 360, 361, 363, 366, 367 Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268 (20 November 1987)  354 Case ACCC/C/2008/32, Part I of the Findings and Recommendations of the Aarhus Convention Compliance Committee (ACCC) (14 April 2011)  140 Case ACCC/C/2008/32, Part II of the Findings and Recommendations of the ACCC (17 March 2017)  140 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2015] ICJ Rep. 665  282 Chevron Corp. v Republic of Ecuador, PCA case No. 2009-23  332 Fourth Interim Award on Interim Measures (7 February 2013)  332 Second Partial Award on Track II (30 August 2018)  322, 332 Corfu Channel (UK v Albania) (Merits) [1949] ICJ Rep. 4  281 European Communities – Measures Affecting Asbestos and Asbestos Containing Products, WT/DS135/ AB/R (12 March 2001)  354, 356 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products WT/ DS400/AB/R, T/DS401/AB/R (22 May 2014)  276 Gabčíkovo–Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep. 7  343 Human Rights and the Environment, Inter-American Court of Human Rights Advisory Opinion, OC-23/17 of November 15, 2017  343, 347 India – Certain Measures Relating to Solar Cells and Solar Modules, WT/DS456/AB/R (16 September 2016)  359, 360, 363 India – Measures Affecting the Automotive Sector, WT/DS146/R, WT/DS175/R (5 April 2002) 273 Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R 21 (1 November 1996)  274 Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep. 161  85 SERAC v Nigeria Comm. 155/96 ACHPR Doc. Comm/A044/1  343 United States – Certain Measures Relating to the Renewable Energy Sector (DS510), WT/DS510/R (27 June 2019)  364 United States – Restrictions on Imports of Tuna, (1991) BISD 39S/155  273, 275 United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (6 November 1998)  269, 275, 276, 281, 354, 355 United States – Import Restrictions on Shrimp and Certain Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/AB/ RW (21 November 2001)  281 United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 April 1996)  355, 356, 362 United States – Taxes on Automobiles, WT/DS31/R (11 October 1994)  362

xv

xvi  Research handbook on transnational environmental law

EUROPEAN UNION Court of Justice of the European Union Aher-Waggon GmbH ν. Federal Republic of Germany (Case C-389/96), [1998] ECR I-4473 135 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change (Case C–366/10), [2012] OJ C49/7  279 Ambulanz Glöckner v Landkreis Sudwestpfalz (Case C-475/99), [2001] ECR I-8089  131 British Airways plc v Commission of European Communities (Case C-95/04 P), [2007] ECR I-2331  133 ClientEarth v European Commission (Case C-57/16), [2018] ECLI: EU: C: 2018: 660  136 Commission of the European Communities v Ireland (Case C-427/07), ECLI: EU: C: 2009: 457 139 Commission of the European Communities v Kingdom of Belgium (Case C-2/90), [1992] ECR I-4421   135 Commission of the European Communities v Italy (Case C-135/05), [2007] ECR I-3475  347 Commission of the European Communities v Kingdom of the Netherlands (Case C-297/05), [2007] ECR I-476  135 Commission v Spain (Case C-404/09), [2011] ECR I-11853  183 Concordia Bus Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne (Case C-513/99), [2002] ECR I-7213  135 Der Grüne Punkt – Duales System Deutschland AG v Commission of the European Communities (Case C-385/07), [2009] ECR I-06155  134 Dusseldorp BV and Others v Minister van Volkshuisvesting (Case C-203/96), [1998] ECR I-4075   134 Diego Calì and Figli Srl v Servizi Ecologici Porto di Genova SpA (Case C-343/95), [1997] ECR I-1547   131 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd (Case C-263/08), ECLI: EU: C: 2009: 631  137 Entreprenørforeningens Affalds/Miljøsektion (FFAD), acting for Sydhavnens Sten & Grus ApS v Københavns Kommune (Case C-209/98), [2000] ECR I-3743  134 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches (Case C-171/11), eV ECLI: EU: C:2012: 453  134, 135 Hilti AG v Commission of the European Communities (Case C-30/89), [1991] ECR II-1439 133 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol (Case C‑265/03), ECLI: EU: C: 2005: 213  139 Intel Corp Inc. v European Commission (Case C-413/14 P), [2017] ECLI: EU: C: 2017: 632 133 Inter-Environnement Wallonnie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v Council of Ministers (Case C-411/17), [2019] ECLI: EU: C: 2019: 622  136 Kanal 5 and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (Case C-52/07), [2008] ECR I-9275  131 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Case C-240/09), ECLI: EU: C: 2011: 125  139 Ville de Paris v Commission (Case T-339/16), Ville de Bruxelles v Commission (Case T-352/16), Ville de Madrid v Commission (Case T-391/16), ECLI:​EU:​T:​2018:​927  226

EUROPEAN REGION European Court of Human Rights Dees v Hungary, 9 November 2010 (App. No. 2345/06)  Di Sarno v Italy, 10 January 2012 (App. No. 30765/08)  Fadeyeva v Russia, (2007) 45 EHRR 1 

345 347, 350, 372 345, 349

Table of cases  xvii Fagerskjöld v Sweden, 26 February 2008 (App. No. 37664/04)  347 Fredin v Sweden, 1991 (App. No. 12033/86  346 Giacomelli v Italy, (2006) 5 EHRR 871  346 Guerra v Italy, (1998) 26 EHRR 537  348 Hardy and Maile v United Kingdom, (2012) 55 EHRR 28  348 Hatton and others v United Kingdom, (2003) 37 EHRR 28  346, 348 Ivan Atanasov v Bulgaria, 2 December 2010 (App. No. 12853/03)  346 Jugheli and others v Georgia, 13 July 2017 (App. No. 38342/05)  349 Kyrtatos v Greece, (2005) 40 EHRR 16  349 López Ostra v Spain, (1995) 20 EHRR 277  345, 348 Matthews v United Kingdom, 18 February 1999 (App. No. 24833/94)  348 Moreno Gómez v Spain, (2005) 41 EHRR 40  345 Öneryildiz v Turkey, [2004 ECHR 657; (2005) 41 EHRR 20 (App. No. 48939/99)  348 Taşkin and others v Turkey, (2006) 42 EHRR 50  345, 346, 348, 349 Tătar v Romania, 27 January 2009 (App. No. 67021/01)  345, 346 Tyrer v United Kingdom, (1978) 2 EHRR 1  346

NATIONAL Australia David Kettle Consulting Pty Ltd v Gosford City Council [2008] NSWLEC 1385 

309

Brazil Brasilit v State Public Prosecutor’s Office Rio de Janeiro (2013) (STJ) 

309

Canada Chevron Corp. v Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69  Friends of the Earth v Governor in Council et al., 2009 FCA 297  Yaiguaje v Chevron Corp., 2017 ONCA 827 (CanLII), 138 OR (3d) 1 (31 Oct. 2017)  Yaiguaje v Chevron Corp., 2018 ONCA 472 (CanLII), 423 DLR (4th) 687 (2018) 

330 313 331 331

Colombia Future Generation v Ministry of the Environment and Others (pending) 

316

Germany Saul Luciano Lliuya v RWE (2017) 20171130 Case No-2-O-28515 

311, 312

Ecuador Maria Aguinda y Otros v Chevron Corp., No. 002-2003 (Provincial Court of Justice of Sucumbios 2011)  326

xviii  Research handbook on transnational environmental law India Pandey v Union of India (pending) 

316

Ireland Conway v Ireland, Barniville J, 16 July 2019, unreported  138 Neurendale Ltd t/a Panda Waste Services v Dublin City Council and Others [2009] IEHC 588 131

New Zealand Thomson v Minister for Climate Change [2017] NZHC 733 

312, 313

Pakistan Ashgar Leghari v Federation of Pakistan (WP No. 25501/2015), Lahore High Court Green Bench, Orders of 4 and 14 September 2015  313 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep. 226 281 Maple Leaf Cement Factory v EPA WP No. 115949/2017  308 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep. 14  282 Rabab Ali v Federation of Pakistan (pending)  316

The Philippines Philippines Reconstruction Movement and Greenpeace v Carbon Majors, Case No. CHR-NI-2016-0001 (2015)  315

Poland ClientEarth v Enea, judgment of the Poznań District Court of 1 August 2019 

136

South Africa Fuel Retailers Association of Southern Africa v Director-General Environmental Management and others (2007) ZACC 13 CCT 67/06  176

The Netherlands Plaumann & Co. v Commission of the European Economic Community (Case 25/62), [1963] ECR 199   137 Tetra Pak II v Commission (Case T-83/91), [1993] ECR II-755  133 Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689 43, 139, 310, 311, 314,  316, 317

United Kingdom ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 313 ClientEarth v Secretary of State for the Environment, Food and Rural Affairs, Secretary of State for Transport, Welsh Ministers and Mayor of London [2018] EWHC 315 (Admin)  136

Table of cases  xix United States of America Acuna-Atalaya v. Newmont Mining Corporation, 765 Fed. App’x. 811 (3d Cir. Mar. 20, 2019) 335 Aguinda v. Texaco, Inc., 1994 WL 142006 (S.D.N.Y. Apr. 11, 1994)  318, 321, 332 Aguinda v. Texaco, Inc., 175 F.R.D. 50 (S.D.N.Y. 1997)  318, 322 Aguinda v. Texaco, Inc., 2000 WL 122143 (S.D.N.Y. Jan. 31, 2000)  321, 322 Aguinda v. Texaco, Inc., 139 F. Supp. 2d 438 (S.D.N.Y. 2000)  322, 332 Aguinda v. Texaco, 142 F. Supp. 2d 534 (S.D.N.Y 2001)  318, 320–23, 332 Aguinda v. Texaco, Inc., 241 F.3d 194 (2d Cir. 2001)  322, 332 Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002)  323, 332 Chevron Corp. v. Stratus Consulting, Inc., 2010 WL 3923092 (D. Colo. Oct. 1, 2010)  324, 332 In re Application of Chevron Corp., 762 F. Supp. 2d 242, 248 (D. Mass. 2010)  324 In re Chevron Corp., 753 F. Supp. 2d 242, 248 (D. Md. 2010)  324 In re Chevron Corp., 762 F. Supp. 2d 242 (D. Mass. 2010)  324 Chevron Corp. v. Berlinger, 629 F.3d 297, 300 (2d Cir. 2011)  325 Chevron Corp. v. Camp, No. 1:10MC27, 2010 WL 3418394 (W.D.N.C. Aug. 30, 2010)  324 Chevron Corp. v. Donziger, 768 F. Supp. 2d 581 (S.D.N.Y. 2011)  327, 328 Chevron Corp. v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014)  328, 329 Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016)  329, 330 Chevron Corp. v. Camacho Naranjo, 667 F.3d 232 (2d Cir. 2012)  328, 332 Chevron Corp. v. Stratus Consulting, Inc., Civil Action No. 10-cv-00047-MSK-MEH, 2010 U.S. Dist. LEXIS 110023 (D. Colo. Oct. 1, 2010)  324 City of Los Angeles v. Nat’l Highway Traffic Safety Admin., 912 F.2d 478, 481 (D.C. Cir. 1990) 225 Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998)  318, 321 Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016)  315 Kelsey Cascadia Rose Juliana et al. v United States of America et al. (2016) Case No. 6:15-cv-01517-TC  313, 315, 316, 317 Kiobel v Royal Dutch Petroleum Co., 569 U.S. 108 (2013)  335, 336 Massachusetts v. Environmental Protection Agency, (2007) 549 U.S. 497  225, 313, 317 Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438  310, 311 Osario v Dole Food Co., 635 F.3d 1277 (11th Cir. 2011)  336 Republic of Ecuador v. Chevron Corp., 638 F.3d 384 (2d Cir. 2011)  326 Union Carbide Corp. Gas Plant Disaster at Bhopal, India, In re, 634 F. Supp. 842, 851 (S.D.N.Y. 1986)   336 Veiga, In re, 746 F. Supp. 2d 27, 46 (D.D.C. 2010)  324 Yaiguaje v Chevron Corporation, 2013 ONCA 758  330

Table of legal instruments

INTERNATIONAL

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123  342, 347 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Cultural and Social Rights (adopted 17 November 1988, entered into force 16 November 1999) 28 ILM 1561  342 Bern Convention on the Conservation of European Wildlife and Natural Habitats (adopted 19 September 1979, entered into force 1 June 1982) 1284 UNTS 210  182 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January 2000, entered into force 11 September 2003) 2226 UNTS 208  193 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 Art 2  252 Convention on Biological Diversity (adopted 22 May 1992, entered into force 29 December 1993) 31 ILM 818  55, 171, 185, 187,  190, 192, 195, 197, 222, 250 Art 8  192 Art 9  194 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 19 ILM 15  171, 182 Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243 Preamble  250 Convention on Long-Range Transboundary Air Pollution (adopted 16 November 1979, entered into force 16 March 1983) 1302 UNTS 217 (LRTAP)  20, 22, 23, 24 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) (OSPAR) 2354 UNTS 67  192

Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention) 92, 136, 140, 144, 175, 198,  199, 200, 203–7, 208, 209, 210, 211, 212,  213, 214, 266, 343, 348 Preamble  205 Art 1  205, 208, 210 Art 2  136 Art 3  138 Art 4  203, 209 Art 5  203 Art 6  137, 138, 203 Arts 7, 8  203 Art 9  136, 137, 138, 140, 203, 204 Art 15  199, 204 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217  342 Art 24  343 African–Eurasian Migratory Waterbird Agreement (adopted 16 June 1995, entered into force 1 November 1999) 2365 UNTS 203  196 Agreement on Subsidies and Countervailing Measures (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 14 (SCM Agreement)  364, 365 Art 3  361 Art 8  364 Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995) 1868 UNTS 120 (TBT Agreement)  85, 273, 352, 356 Art 2  85, 273 Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299 (TRIPS)  352, 360

xx

Table of legal instruments  xxi Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (International Centre for Settlement of Investment Disputes [ICSID]) (adopted 18 March 1965, entered into force 14 October 1966) 575 UNTS 159  75 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 11 ILM 963 (Ramsar Convention)  171, 191, 195, 196 European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, entered into force 3 September 1953) 213 UNTS 221  174, 342,  348, 349 Art 2  347 Art 8  175, 347 General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into force 1 January 1995), 1867 UNTS 187 (GATT)  85, 352, 353 Art I  273, 353 Art III  273, 275, 276, 353, 355, 356, 359 Art XI  274, 275 Art XX  275, 276, 280, 352, 354, 355,  356, 362, 363, 364, 365 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone to the Convention on Long-range Transboundary Air Pollution (adopted 30 November 1999, entered into force 15 May 2005) 2319 UNTS 81  20, 22, 23, 25, 30, 31 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3  169 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (adopted 21 September 1988, entered into force 27 April 1992) 1672 UNTS 302  197 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162  24, 116,  118, 119, 174, 183, 184, 216, 255, 287, 288,  290, 291 Art 3  24, 288 Art 6  289 Art 9  288 Art 12  184, 289 Art 17  289 Art 26  287

Art 20  288 Art 27  287 Annex B  24 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (29 December 1972, entered into force 30 August 1975) 11 ILM 1294  192 Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16 August 2017) 55 ILM 582  92 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (adopted 29 October 2010, entered into force 12 October 2014) UNEP/CBD/COP/DEC/X/1  50 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740 20, 22,  24–5, 28, 29, 31, 44, 74, 105, 116, 117, 118,  119, 120, 124, 174, 180, 181, 183, 184, 195,  217, 224, 233, 246, 248, 287, 288, 314, 357,  358, 371 Preamble  217 Art 2 24, 217 Art 3  184, 288 Art 4  24, 117, 118, 217, 233, 288, 365, 366 Art 5  185, 186, 295 Art 6  184, 186, 293 Art 7  117 Art 11  117, 252 Art 12  118, 252 Art 13  118, 119, 217, 288 Art 14  29, 119, 217, 288 Art 15  118, 217 Art 16  116 Art 22  288 Art 27  287 Art 28  287 Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 5778  252 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018, not yet in force) LC/CNP10.9/5 (Escazú Agreement)  199, 200, 206, 207, 209, 210,  211, 213, 214, 344 Art 3  209 Art 4  208, 210, 213 Art 5  209, 213 Art 6  209, 213

xxii  Research handbook on transnational environmental law Arts 7, 8  213 Art 9  210 Rio Declaration on Environment and Development (adopted 13 June 1992) 31 ILM 874  198, 345, 350 Principle 10  198–200, 202, 205, 206, 210,  211, 213, 214, 343, 344 Principle 15  308 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 39 AJIL Supp. 215  73 Art 38  73, 91 Stockholm Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972) UN Doc. A/ CONF.48/14/REV.12 39, 202, 281, 342,  343, 345, 373 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996) 1954 UNTS 3 (UNCCD)  190, 196, 222 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC)  22, 24, 29, 92, 105,  116, 155, 174, 183, 184, 185, 190, 195, 197,  216, 220, 238, 252, 287, 289, 292, 293, 294,  366, 371 Art 4  24, 92 Art 6  252, 293 Arts 24, 25  287 Universal Declaration of Human Rights (10 December 1948) A/RES/3/217 A  169 Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 26 ILM 1529  111 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331  73

EUROPEAN UNION Charter of Fundamental Rights of the European Union, 2000  174 Art 37 174 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L 175/40  346

Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206/7  181, 183, 191, 193 Art 16  139 Art 22  193 Directive 1999/31/EC on the landfill of waste [1999] OJ L 182/1  347 Directive 2000/60/EC establishing a framework for Community action in the field of water policy [2000] OJ L 327/1  191 Directive 2006/12/EC on waste [2006] OJ L 114/9  347 Directive 2007/60/EC on the assessment and management of flood risks [2006] OJ L 288/27  191 Directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L 152/1  24, 26 Arts 15, 16  26 Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] OJ L 164/19  192 Directive 2008/101/EC amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2008] OJ L 8/3  363 Directive 2009/28/EC on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L140/16  82 Art 29  82 Directive 2009/147/EC on the conservation of wild birds [2009] OJ L 20/7  181, 183, 191 Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control) [2010] OJ L 334/17  341 Directive 2011/65/EU concerning the restriction of the use of certain hazardous substances in electrical and electronic equipment [2011] OJ L 174/88  84 Directive 2014/95/EU amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups [2014] OJ L330/1  129 Directive (EU) 2016/2284 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC [2016] OJ L 344/1  25 Annex II  25

Table of legal instruments  xxiii Regulation (EEC) 2092/91 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs [1991] OJ L 198/1  73 Regulation (EU) No. 421/2014 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions [2014] OJ L129/1  277 Regulation 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles [2009] OJ L 140/1  129 Regulation (EC) No. 1221/2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS), repealing Regulation (EC) No. 761/2001 and Commission Decisions 2001/681/EC and 2006/193/EC [2009] OJ L 342/1  121 Regulation 995/2010/EU laying down the obligations of operators who place timber and timber products on the market [2010] OJ L 295/23  187 Regulation (EU) No. 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No. 1698/2005 [2013] OJ L 347/487 Art 5  189 Regulation 1143/2014/EU on the prevention and management of the introduction and spread of invasive alien species (IAS Regulation) [2014] OJ L 317/35  193 Arts 2, 4  193 Regulation 2018/841/EU on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework [2018] OJ L 156/1  186, 189 Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia [2003] OJ L 236/17  113 Treaty of Accession of the Republic of Bulgaria and Romania [2005] OJ L157/11  113 Treaty of Accession of Croatia [2012] OJ L 112/21  113

Treaty of the European Community (TEC) Art 174  346, 347 Treaty on the Functioning of the European Union (TFEU) Art 34  135 Art 101  130, 132, 133 Art 102  130, 131, 133 Art 106  131, 134 Art 191  347 Arts 258, 260  111, 114, 115 Art 263  140

NATIONAL Germany Basic Law for the Federal Republic, 1949 Art 20a 

161 162

Laos Constitution, 1991 Art 19 

162

Myanmar Constitution, 2008 Art 390b 

162

New Zealand Resource Management Act, 1991 

250

Republic of Ecuador Environmental Management Act, 1999 

336

Republic of South Africa Constitution, 1996  161 s 24  163, 176 s 39  176 National Environmental Management Act 107 of 1998  163

Thailand Constitution, 1997 Ch XIV 

162

xxiv  Research handbook on transnational environmental law United Kingdom Countryside and Rights of Way Act, 2000

250

United States of America 28 U.S. Code § 1782  324 Alien Tort Statute 28 U.S.C. 1350 (US)  320, 336 Clean Air Act, 1963  44, 311, 356 European Union Emissions Trading Scheme Prohibition Act, 2011, H.R. 2494  272 National Environmental Policy Act, 1972  344 Racketeer Influenced and Corrupt Organizations (RICO) Act, 1970  318, 326

Recognition of Foreign Country Money Judgments Act, 1962  323, 327, 328, 329, 338 U.S. Code § 4321  344 Wild and Scenic Rivers Act, 1968  250

Yugoslavia Constitution, 1974 

161

Zimbabwe Constitution, 2013 s 73 

176

PART I A THEORY OF TRANSNATIONAL ENVIRONMENTAL LAW

1. The meanings of transnational environmental law Veerle Heyvaert and Leslie-Anne Duvic-Paoli

1 INTRODUCTION Human pressures on the environment increase continuously and thresholds critical to the stability of the life-support functions of the planet have been, or are on the verge of being, exceeded.1 In this context, environmental lawyers have started to reflect on how inadequate legal systems have contributed to global environmental crises while, at the same, nurturing the hope that new legal forms will provide solutions to the sustainability challenges we are facing. As a relatively new field of law, environmental law is still maturing, which means that it remains faced with significant methodological questions and is prone to existential anxieties.2 In addition to trying to make sense of itself as an established yet still somewhat fluid legal discipline, environmental law must operate in a context of significant legal transformation arising from the need to respond to an increasingly complex society, which brings about significant intellectual as well as practical challenges for the legal field. Certainly, the nature of environmental challenges profoundly disturbs existing legal institutions.3 As a result, the traditional foundations of ‘law’ have found themselves challenged by new modes and structures of governance, acting in synergy, but also sometimes in opposition, with existing structures.4 The relativization of boundaries has led to the emergence of a variety of theoretical frameworks seeking to explain these phenomena.5 Amongst them, transnational law has developed into a discipline which offers a theoretical framework able to identify and explain the normative complexities arising from intensifying cross-border activities. Such promise has attracted a number of scholars and educators, eager to better understand processes that their own field of enquiry – ranging from commercial law

1 United Nations Environment Programme, Global Environmental Outlook 6: Summary for Policy-Makers (Cambridge University Press 2019). 2 E. Fisher, B. Lange, E. Scotford and C. Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, 228–31; A. Philippopoulos-Mihalopoulos and V. Brooks (eds), Research Methods in Environmental Law: A Handbook (Edward Elgar 2017); O. Pedersen, Perspectives on Environmental Law Scholarship: Essays on Purpose, Shape and Direction (Cambridge University Press 2018). 3 Illustrated in the context of climate change by, e.g., E. Fisher, E. Scotford and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) Modern Law Review 173; and D. Kysar, ‘What Climate Change Can Do about Tort Law’ (2011) 41(1) Environmental Law 1. 4 R. Lee and E. Stokes, ‘Environmental Governance: Reconnecting the Global and Local’ (2009) 36(1) Journal of Law and Society 1. 5 E.g., E. Melissaris, Ubiquitous Law (Routledge 2009); J. Pauwelyn, R. Wessel and J. Wouters, Informal International Lawmaking (Oxford University Press 2012); V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 205.

2

The meanings of transnational environmental law  3 to public international law – failed to fully account for.6 The governance of environmental impacts is no exception: transnational means of regulation fill a gap left by conventional modes of governance by acknowledging multilevel and multi-actor responses, recognizing the value of alternatives to ‘hard law’ and encouraging regime-crossing solutions. As the promise of transnational law has started to attract wider scholarly attention, its foundational core has diversified considerably, with varying assumptions regarding the meaning of the field underpinning the work of transnational legal scholars. As a result, transnational law is faced with conceptual challenges relative to its definition and scope. First, transnational law is not the only field of scholarly enquiry that seeks to explain similar phenomena. Among others, theories such as global law,7 world law,8 law and globalization,9 or legal pluralism10 have developed parallel research agendas. The presence of alternative, partially competitive framings serves transnational environmental law as a source of inspiration and ongoing introspection, as well as a trigger for the occasional bout of self-doubt. Secondly, definitions given to transnational law vary from broad to narrow, ranging from any type of trans-border legal relations11 to a more restricted understanding, which qualifies as transnational law only those normative communications which are expressed and enforced by actors other than the state.12 As a result, how transnational law interacts with other traditional bodies of law, such as international or comparative law, remains debated. Thirdly and relatedly, legal transnationalism challenges the classical dichotomy between law and non-law and hence is often described in various terms to reflect its complex relation to normativity, including ‘law’, but also ‘regulation’,13 ‘governance’14,‘process’15 or ‘legal order’.16 Whether these different denominations reflect a different reality, or understanding, of legal relations, also remains an unsettled question. The environmental sphere is not alien to the conceptual uncertainties present in the field of transnational law. While transnational environmental law has certainly consolidated in recent years, scholars tend to rely on different understandings about the meaning, and characteristics, of transnationalism in environmental law. This chapter maps these meanings into three broad P. Zumbansen, ‘Transnational Law’ in J. Smits (ed.), Elgar Encyclopedia of Comparative Law (Edward Elgar 2006) 738. 7 See e.g., R. Domingo, The New Global Law (Cambridge University Press 2010); G. Ziccardi Capaldo, The Pillars of Global Law (Routledge 2016). 8 H. Berman, ‘World Law’ (1995) 18 Fordham International Law Journal 1617. 9 P. Schiff Berman, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of Transnational Law 485. 10 See e.g., F.G. Snyder, ‘Governing Economic Globalization: Global Legal Pluralism and European Law’ (1999) 5 European Law Journal 334; P. Schiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155; R. Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and Social Sciences 243. 11 P. Jessup, Transnational Law (Yale University Press 1956); H. Koh, ‘Transnational Legal Process’ (1996) 75 Nebraska Law Review 181; G. Shaffer and C. Coye, ‘From International Law to Jessup’s Transnational Law, from Transnational Law to Transnational Legal Orders’ UC Irvine School of Law Research Paper No. 2017-02. Available at SSRN, https://​ssrn​.com/​abstract​=​2895159. 12 Such as, for instance, focusing only on the role of non-state actors in legal relations. 13 Heyvaert (n 5). 14 N. Rajkovic, ‘“Global Law” and Governmentality: Reconceptualizing the “Rule of Law” as Rule “through” Law’ (2010) 18 European Journal of International Relations 29. 15 Koh (n 11). 16 T. Halliday and G. Shaffer, Transnational Legal Orders (Cambridge University Press 2015). 6

4  Research handbook on transnational environmental law categories, as discourse, methodology, and field of practice. The reasons why the study of environmental law, specifically, often attracts a transnational perspective are then presented. On this basis, the chapter culminates in a mapping of transnational environmental legal scholarship with the view to explaining the scope and structure of the Handbook. A brief synthesis of each contribution concludes the piece.

2

ITERATIONS OF TRANSNATIONAL LAW: AS DISCOURSE, METHODOLOGY, AND FIELD OF PRACTICE

Transnational law is the expression of a desire to challenge and transcend the mainstream organization of law, which imposes a rigid, binary division of law into either national law or international law. The organization into national and international law is implicitly accepted in the discipline of law and deeply influences, even determines, every aspect of legal education, scholarship and practice. It should be remembered, however, that this near-axiomatic representation of law as divided into two exhaustive and mutually exclusive domains is overwhelmingly a product of the past two centuries. It was not nearly as dominant in the pre-Enlightenment era, during which lawyers more readily engaged with thriving bodies of, for instance, canon law and customary commercial law (lex mercatoria), neither of which was jurisdictionally organized with reference to statehood and geographical borders.17 Transnational law, therefore, while reaching for the post-national, equally taps into much older experiences and traditions of law. Yet, although the organization of law into a national and an international sphere may be less immutable than its present-day ubiquity suggests, the fact remains that it is dominant in today’s legal order. As such, it channels legal academic inquiry inexorably towards the state as the primary source of law and as the ultimate arbiter of what constitutes the public and the private sphere in law. Arguably, if at first glance counter-intuitively, the prevalence of mainstream conceptualizations of law into the binary and jointly exhaustive zones of ‘national’ and ‘international’ law is nowhere better exemplified than in the concept of ‘European Union law’. EU law cannot be adequately qualified as either national or international law, yet other than the occasional reference to ‘regional law’, a term which has never really caught on in any significant way, we lack even the vocabulary to categorize legal regimes that do not conform to either the national or international model. Hence, EU law typically remains just that, EU law, a sui generis oddity to be circumnavigated in an otherwise dualistic legal landscape. In the term ‘transnational law’ resonates both a concern for and a protest against this exclusionary mapping of state (or national) and international law. Transnational law draws attention to the extent to which this binary framing suppresses the relevance of decentred normative practices and processes, and of non-state actors, in the production and consolidation of law. This is the case regardless of whether we adopt a broad, Jessupian definition of transnational law as ‘all law which regulates actions or events that transcend national frontiers’,18 or define

17 A.C. Cutler, Private Power and Global Authority. Transnational Merchant Law in the Global Political Economy (Cambridge University Press 2003); C. Reid Jr and J. Witte Jr, ‘In the Steps of Gratian: Writing the History of Canon Law in the 1990s’ (1999) 48 Emory Law Journal 647, 650. 18 Jessup (n 11).

The meanings of transnational environmental law  5 transnational law more narrowly as law authored by non-state authorities and unconstrained by jurisdictional boundaries.19 From this vantage point, transnational law presents itself in the first place as a discourse. It communicates an alternative conceptualization of law, which focuses less on form and is less beholden to the institutional trappings of law than the binary, national/international law model. Instead, attention is shifted towards the more dynamic aspects of law: its construction, its functions, and its impact. Its departure from formalism is both a source of liberation and of existential challenge. As a discourse, transnational law at the very least needs to be able to explain its preoccupation with the dynamic, transformative aspects of lawmaking and implementation. Moreover, whenever transnational law involves the identification of a body of ‘non-traditional’ norms as constitutive of law, this opens the discourse to the formidable challenge of finding an alternative way of being; of generating and justifying the validity of different benchmarks, criteria or procedures that enable the identification of law and draw new boundaries between what is law and what is not. As a result, the identification of the transnational is not merely a descriptive act, but also a prescriptive one.20 The transnational perspective thus constitutes a provocative challenge to theorizing law.21 In particular, it is often looked to as an answer, or an alternative, to the absence of ‘hard’ rules and command-and-control mechanisms in transboundary relations, filling in an ever-more prominent legal accountability gap. For others, the distinctiveness of transnational law lies not so much in its discursive contribution as in its potential for methodological innovation. Transnational law as methodology denotes a field of study and practice that seeks to understand law – whether non-traditional or in all its state-rooted, binary glory – by tracing, untangling and analysing the complex, multipartite, and transboundary exchanges that result in the establishment of new legal norms and the disappearance of others.22 Transnational law as methodology, too, is in part a response to frustration with mainstream understandings of law. In particular, it challenges the widespread practice among legal professionals and scholars of taking the ‘law on the books’ as the starting point for analysis and critique. Instead, transnational law as methodology envisages law within its societal context and emphasizes that the diachronic and transformational process during which a norm becomes law is far more distinctive of law as a discipline than the particular content of the end product. Correspondingly, the challenges of transnational law as methodology in the first place relate to the development of reliable process-tracing strategies, which must be capable of tackling the difficult task of distinguishing causation from correlation and which must deliver an analytical toolkit that enables researchers to identify key transitioning points on the pathway to law. Importantly, this requires the acquisition of methodological skills beyond those that are part of the ‘standard set’ of practices and protocols imparted during legal education and training. In particular, it fuels a demand for empirical and quantitative skills which are more widespread among researchers working in other fields of the social sciences, such as political science and social policy, but may strike fear – or at least spark a twinge of nervousness – among the generally more data processing-averse ranks of legal scholars. At the

R. Cotterrell, ‘What Is Transnational Law’ (2012) 37 Law & Social Inquiry 500. E. Fisher, ‘The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers’ (2012) 1 Transnational Environmental Law 43, 47. 21 Zumbansen (n 6) 739. 22 P. Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Governance, and Legal Pluralism’ (2012) 21(2) Transnational Law and Contemporary Problems 305. 19 20

6  Research handbook on transnational environmental law same time, this growing need for an expanded methodological toolkit underlines the vital role of interdisciplinary communication for the maturation of transnational law. By the same token, the focus on lawmaking as a process, rather than an exclusive engagement with the legal norm as a fait accompli, demands a heightened versatility of legal researchers, who should be able to shift easily between different levels of governance as well as different stages of lawmaking, interpretation, application, contestation and reform. Finally, transnational law may assume a more substantive guise and be taken to refer to a distinctive field of practice; a discrete set of norms that govern transnational spheres of interaction. In this third iteration, the transnational character of law is primarily associated with the transcendental capacity of norms – however state-based and localized in origin – which generates new, transnational variants of legal standards and principles. Transnational law as a field of practice builds on transnational discourse and methodology since, rather than focusing on those transboundary provisions that are the product of international negotiation and treaty making, it centres attention on those laws and legal interpretations that are the product of informal influence and exchange. As legislative, judicial and administrative communication courses through transnational governance networks, from the Organisation for Economic Co-operation and Development (OECD) to the European Union Forum of Judges for the Environment (EUFJE),23 opportunities multiply to develop and consolidate a shared understanding of law, which projects its influence back to both the state and the international level. A key challenge for transnational law as substance involves managing the risk of researcher bias in the distillation of such shared, transcendental and therefore transnational understandings of law. Moreover, if there exists a substantive body of transnational law, then the difficult, politically combustible question of its relation to national and international law must be addressed: what kind of status, what collection of immunities and vulnerabilities, should the ‘transnational’ label convey? This is particularly difficult given that, contrary to the claims other legal orders tend to make for themselves, transnational law does not present as a unitary system but rather as an amalgam of norms, processes and actors with normative effects. It also has to ask the question whether it constitutes a legal order or a body of law and reflect on the differences that it could make.

3

BRINGING IN THE ENVIRONMENT

Whether represented primarily as a discourse, a methodology, or a field of practice, transnational law cuts across legal disciplines, from commercial arbitration to disability law.24 However, as the discipline matures, it has become apparent that the domain of environmental law lends itself particularly well to transnational inquiries and delivers a fertile basis for the further development of transnational legal theory. Conversely, transnational discourse

See Chapter 5 by T. Markus and O. Dilling and Chapter 18 by G. Ganguly in this book. See, e.g., P. Zumbansen, ‘Piercing the Legal Veil: Commercial Arbitration and Transnational Law’ (2002) 8 European Law Journal 400; K. Soldatic and S. Grech, ‘Transnationalising Disability Studies: Rights, Justice and Impairment’ (2014) 34 Disability Studies Quarterly, DOI: doi:​10​.18061/​dsq​ .v34i2​.4249; S. Bisom-Rapp, ‘Exceeding Our Boundaries: Transnational Employment Law Practice and the Export of American Lawyering Styles to the Global Worksite’ (2004) 25 Comparative Labor Law and Policy Journal 257. 23 24

The meanings of transnational environmental law  7 and methodologies, as well as the availability of an emerging body of transnational norms and principles, constitute exceptionally powerful lenses through which to study and access a deeper understanding of the relationship between law and environmental protection. The affinity between environmental law and transnational law can be explained by a range of factors. Most obviously, the subject matter of environmental law is as inconsiderate of jurisdictional boundaries as transnational law itself. Greenhouse gas emissions in China, the United States and Peru contribute to rising sea levels in Vanuatu; persistent organic pollutants in pesticide residues deposited on African soil wash up on Arctic shores; decades of sulphur and nitrogen emissions from the United Kingdom, Germany, Poland and the North Sea have caused acidification and reduced water quality in Norway, and every day the Yangtze, Indus and Nile rivers transport countless tons of discarded plastics towards the world’s oceans. In the light of the transboundary scope of the most pressing environmental risks for which legal and regulatory responses are sought, the state does not present itself as the best-suited medium through which to forge appropriate solutions. As a result, conventional legal framings, constructed on the premise of statehood and based on a domestic–international divide, find themselves ill at ease to explain and regulate phenomena that operate irrespective of borders, leaving space for other scholarly approaches such as transnational law.25 A second point of affinity between environmental and transnational law is that neither is comfortably categorized as a branch of either public or private law. Without calling into question its by now uncontested standing as a distinctive legal discipline, it is well known that the origins of environmental law can be traced back to a variety of public and private legal fields, including but not limited to administrative law, torts, constitutional, and criminal law. Transnational law, too, straddles the public/private divide. Indeed, as argued in greater detail elsewhere, the adoption of a transnational perspective challenges the continued relevance of the public/private distinction as an organizational model.26 Finally, although it manifests in different ways, both fields could be considered united by a concern about the responsiveness of law to social change. Within the context of both transnational and environmental law, pressing questions are being raised about law’s ability to understand and engage with a simultaneously globalizing and fragmenting life world, which ability arguably constitutes a vital prerequisite for its potential to effectuate change.27 The mounting expectations for law to serve as an engine for social change,28 as opposed to a stabilizer of interpersonal exchanges and power relations, are well documented in the environmental legal literature and, particularly, the climate change literature of the past few decades.29 The desperate need for more effective responses to the environmental calamities that threaten the well-being and even the survival of present and future generations, coupled with the evident

But also including, for instance, ‘global law’. See e.g., R. Percival, ‘Global Law and the Environment’ (2011) 86 Washington Law Review 579. 26 V. Heyvaert, Transnational Environmental Regulation and Governance. Purpose, Strategies and Principles (Cambridge University Press 2019) 182–214. 27 See A. Kotsakis, ‘Change and Subjectivity in International Environmental Law: The Micro-Politics of the Transformation of Biodiversity into Genetic Gold’ (2014) 3 Transnational Environmental Law 127. 28 P. Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Governance, and Legal Pluralism’ (2012) 21(2) Transnational Law and Contemporary Problems 305, 306. 29 See V. Heyvaert, ‘Governing Climate Change: Towards a New Paradigm for Risk Regulation’ (2011) 47 Modern Law Review 817. 25

8  Research handbook on transnational environmental law failure of over half a century of domestic and international environmental law to prevent them, fuel a search for alternative approaches to law which might at least create a possibility of delivering better environmental outcomes. Transnational approaches are at the forefront of this development. Their contribution is likely to become increasingly important to fill the gap left when governments disengage with environmental protection objectives (both domestically and internationally),30 leaving space for non-state actors to step in as subsidiary regulators. The factors discussed underline the depth of the connection between environmental law and transnational law in terms of their shared transboundary perspective, their hybrid status as neither assuredly a public nor private legal domain, and their shared preoccupation with law as a dynamic rather than a stabilizing social force. Yet significant questions remain regarding the relationship that transnational environmental law entertains with transnational law. Is transnational environmental law to be regarded as a sub-discipline of transnational law, in which case its meanings could be derived directly from those given to transnational law? Or does the specificity of transnational environmental law render such a transposition difficult or undesirable?31 Alternatively, transnational environmental law could be cast as a sub-discipline of environmental law, which would result in a different ordering of research questions for the field.32 Overall, these dilemmas appear as new editions of familiar conceptual difficulties running through the environmental law discipline, which relate to an abiding preoccupation with its relative autonomy and relation to other fields of law.33

4

MAPPING THE FIELD OF TRANSNATIONAL ENVIRONMENTAL LAW

The aim of this Research Handbook is to deliver an informed account of the fast-developing field of study and practice at the intersection of transnational and environmental law. As a scholarly discipline, transnational environmental law is a burgeoning enterprise, as attested by the veritable explosion of literature on the subject. This is most prominently reflected in the 2012 launch of Transnational Environmental Law (TEL), a journal dedicated explicitly to the study of the transnational dimension of environmental law and governance.34 In the past eight years, TEL has seen its reach expand significantly, publishing scholarship from across the globe and increasing its distribution from two to three issues per year. Obviously, transnational environmental legal scholarship is not confined within the covers of TEL itself, as other key environmental law outlets including the Journal of Environmental Law, RECIEL, the Asia Pacific Journal of Environmental Law, leading US environmental law reviews, McGill

T. Etty, V. Heyvaert and others, ‘Transnational Environmental Law on the Threshold of the Trump Era’ (2017) 6(1) Transnational Environmental Law 1; T. Etty, V. Heyvaert and others, ‘New Challenges for Transnational Environmental Law: Brexit and Beyond’ (2018) 7(1) Transnational Environmental Law 1. 31 See Fisher (n 21), who considers TEL as distinct from transnational law in other legal areas, in particular in relation to the expertise it requires from scholars. 32 Ibid 52. 33 T. Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2010) 95 Cornell Law Review 221. 34 Both editors of this Handbook are affiliated with TEL as, respectively, Editor-in-Chief and Assistant Editor. 30

The meanings of transnational environmental law  9 International Journal of Sustainable Development Law and Policy and generalist law journals also publish a healthy flow of contributions with a distinctly transnational environmental perspective.35 This body of work is complemented by an impressive stream of monographs and edited volumes on transnational environmental legal subjects, as documented in the (now annual) ‘Highlights of Recent Book Publications’ in the back pages of TEL. It is inevitably challenging to distil dominant themes from a rapidly growing body of work in a discipline that is still finding its voice, but certain features have already become apparent. The most obvious point to make is that transnational environmental law is a broad church under the auspices of which a collection of research interests and strategies converge. Some publications present the transnational dimension of their work as primarily reflected in a commitment to deepen and expand international and comparative environmental legal inquiries beyond conventional boundaries. This may involve, for example, shifting the focus of attention from the formally binding provisions of international environmental law towards the teeming mass of institutional arrangements and informal rules which anchor, interpret, extend, moderate or modify the typically brief and opaque official legal provisions.36 Alternatively, the transnational perspective may refer to an interest in the impact of international environmental agreements not within but beyond the jurisdictions of the signatory states, as non-member states deploy them as models, reference points against which to measure or assert the legitimacy of domestic legal initiatives.37 Other transnational studies display a similar preoccupation with the informal transboundary influence of law, but are chiefly interested in analysing and understanding this dynamic in a judicial setting and examine whether and to what extent courts in environmental disputes take their cue from novel argumentation attempted or validated in foreign judgments.38 In addition to the many and varied inquiries into the informal transboundary reach of environmental law, a vibrant body of work engages with transnational environmental law in its guise of an alternative to primarily international (but also regional and even national) environmental law. This line of scholarship displays a pronounced interest in the contribution of non-state actors to environmental law, a contribution that goes beyond facilitation and is instead constitutive in nature. Works in this vein include investigations into the expanding universe of private and hybrid environmental regulation,39 as well as the promulgation by

35 To give a handful of examples, see N. Affolder, ‘Transnational Conservation Contracts’ (2012) 25 Leiden Journal of International Law 443; Y. Naiki, ‘Trade and Bioenergy: Explaining and Assessing the Regime Complex for Sustainable Bioenergy’ (2016) 27(1) European Journal of International Law 129; O. Dilling and T. Markus, ‘The Transnationalisation of Environmental Law’ (2018) 30 Journal of Environmental Law 179; D. Matthews, ‘From Global to Anthropocenic Assemblages: Re‐Thinking Territory, Authority and Rights in the New Climatic Regime’ (2019) 82 Modern Law Review 665. 36 E.g., M.E. Recio, ‘Transnational REDD+ Rule Making: The Regulatory Landscape for REDD+ Implementation in Latin America’ (2018) 7(2) Transnational Environmental Law 277. 37 E.g., U. Etemire, ‘Public Access to Environmental Information: A Comparative Analysis of Nigerian Legislation with International Best Practice’ (2014) 3 Transnational Environmental Law 148; S. Whittaker, ‘The Right of Access to Environmental Information and Legal Transplant Theory: Lessons from London and Beijing’ (2017) 6 Transnational Environmental Law 509. 38 E.g., A.-J. Saiger, ‘Domestic Courts and the Paris Agreement’s Climate Goals: The Need for a Comparative Approach’ (2020) 9 Transnational Environmental Law 37. 39 J. Green, Rethinking Private Authority. Agents and Entrepreneurs in Global Environmental Governance (Princeton University Press 2014); Heyvaert (n 26) 37–49; E. Meidinger, ‘Beyond

10  Research handbook on transnational environmental law non-state actors of global environmental principles,40 and into the deployment of alternative legal structures, such as transnational contracts, to bypass the machinery of international law.41 Others yet associate the transnational dimension of their work with a research strategy that seeks to both discover synergies and problematize gaps and inconsistencies between different environmental legal regimes, or between environmental law and other legal disciplines with a pronounced transboundary dimension, such as trade, investment, competition and IT law.42 This brief discussion offers but a glimpse of the abundance and variety of writing on transnational environmental law. For the purpose of organization, however, it is important to devise categories that are at the same time sufficiently flexible to welcome the richness of the literature, and sufficiently instructive to generate a sense of coherence between different inquiries and, importantly, a solid indication of the boundaries of transnational environmental law. To this end, this Research Handbook organizes the field into five broad categories of inquiries. The first consists of general theoretical and methodological discussions, which contribute towards the articulation of a philosophy, a mature research agenda and an analytical toolkit for transnational environmental law. The second category groups together works that focus on the emergence and evolution of transnational environmental governance and its impact on environmental law. Part III examines distinctive mechanisms and consequences of the transnationalization of environmental governance. Fourth are studies that focus on the role of non-state actors in environmental lawmaking, and a fifth category groups together those inquiries that are interested in regime-crossing phenomena, including both jurisdictional and disciplinary crossings. Alternative modes of organization are possible, but in our view the five categories proposed in this Handbook offer readers a helpful, sufficiently differentiated yet parsimonious map to the field. As an added benefit, it is possible to discern a decent degree of correlation between the organization of the Handbook and the three accounts of transnational law as discourse, methodology and field of practice. Environmental governance studies tend to understand transnationalization of environmental law as a process of problematization, contestation and reconceptualization of legal conventions.43 Many of the questions that propel governance

Westphalia: Competitive Legalization in Emerging Transnational Regulatory Systems’ in C. Brűtsch and D. Lehmkuhl (eds), Law and Legalization in Transnational Relations (Routledge 2007) 121. 40 E.g., D. Ong, ‘From “International” to “Transnational” Environmental Law? A Legal Assessment of the Contribution of the “Equator Principles” to International Environmental Law’ (2010) 79 Nordic Journal of International Law 35; J. Spier, ‘The Principles on Climate Obligations of Enterprises: An Attempt to Give Teeth to the Universally Adopted View that We Must Keep Global Warming Below an Increase of Two Degrees Celsius’ (2018) 23 Uniform Law Review 318. 41 B. Cashore, ‘Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority’ (2002) 15 Governance 503; N. Affolder, ‘Looking for Law in Unusual Places: Cross-Border Diffusion of Environmental Norms’ (2018) 7 Transnational Environmental Law 425. 42 E.g., I. Offor, ‘Animals and the Impact of Trade Law and Policy: A Global Animal Law Question’ (2020) 9(2) Transnational Environmental Law 239; K. Tienhaara, ‘Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor–State Dispute Settlement’ (2018) 7 Transnational Environmental Law 229; L. Rubini and I. Jegou, ‘Who’ll Stop the Rain? Allocating Emissions Allowances for Free: Environmental Policy, Economics, and WTO Subsidy Law’ (2012) 1 Transnational Environmental Law 325; C. Lajaunie, B. Schafer and P. Mazzega, ‘Big Data Enters Environmental Law’ (2019) 8 Transnational Environmental Law 523. 43 Heyvaert (n 5).

The meanings of transnational environmental law  11 studies are essentialist in nature, seeking to determine the key attributes and consequences of contemporary environmental regulation, reflecting on the conditions and discursive significance of labelling measures as legal or part of ‘soft law’, and on the legitimacy of transnational governance institutions. Investigations that focus on the role of non-state actors, in turn, tend to have an interactionist framing in that attention is directed towards the provisions and processes that enable, shape and curtail their engagement with environmental law. This shows affinity with the representation of transnationalization as the process of embedding non-state environmental norms within national or international law, which is reflective of the methodological take on transnational law. As to the fifth and final category, the very notion of regime-crossing is predicated on the identification of converging or shared understandings of environmental rules and standards. We have indications that a norm has traversed a boundary precisely because of its materialization elsewhere. Studies in regime-crossing therefore direct the attention towards transnationalization as the transformation of normative content and the establishment of new fields of practice. In sum, this Research Handbook seeks to display a variety of perspectives on transnational environmental law while, at the same time, providing a conceptual map.

5

OVERVIEW OF CONTRIBUTIONS

Following on from this introduction, Part I of the Research Handbook offers contributions that aim to explain and fortify attempts to theorize transnational environmental law. It comprises three chapters written by, respectively, Kati Kulovesi; Natasha Affolder; and Elisa Morgera, Louisa Parks and Mika Schroeder. In ‘Exploring transnational legal orders: using transnational environmental law to strengthen the global regulation of black carbon for the benefit of the Arctic region’, Kati Kulovesi introduces the theme of regime and jurisdictional complexity, which arguably constitutes the seminal research challenge of transnational environmental law as a field of legal scholarship. She illustrates this by means of a practical example in the field of pollution control law, namely, the regulation of short-lived climate pollutants. The idea of mitigating black carbon emissions to reduce Arctic warming has been subjected to growing policy attention in recent years. Kulovesi’s chapter analyses opportunities to strengthen the global regulation of black carbon for the benefit of the Arctic region. In doing so, it draws on the growing body of literature on transnational environmental law and explores the benefits of using transnational environmental law as an analytical framework instead of the more traditional and narrow focus on formal international law. Based on this, the chapter argues that the transnational environmental law perspective reveals a much more active regulatory landscape, and leads to a more nuanced understanding of the opportunities to control global black carbon emissions affecting the Arctic. Natasha Affolder’s chapter, in turn, tackles the major task confronted by transnational environmental law as a legal discipline of developing productive research agendas in a context of pronounced uncertainty. In ‘An unknown past, an unequal present, and an uncertain future: transnational environmental law through three research challenges’, Affolder seeks to bring into focus three broad research challenges facing transnational environmental law – the eponymous unknown past, unequal present, and uncertain future. Transnational law theory invites scholars to stand at a distance from current orthodoxies and to contemplate environmental law

12  Research handbook on transnational environmental law and its practice from new vantage points. The study of transnational environmental law thus prompts new ways of thinking about where to look for environmental law and its foundational influences. New research agendas emerge organically from such shifts of gaze. Affolder asserts that, by identifying future research agendas, we can illuminate both the diversity of sites of past and present lawmaking and the plurality of ideas that shape concepts of the ‘environment’ and ‘environmentalisms’. These new imaginative spaces are central to understanding law’s roles in a global context – the roads taken and so far not taken. The concluding instalment of Part I focuses on the ‘Methodological challenges of transnational environmental law’. Elisa Morgera, Louisa Parks and Mika Schroeder’s chapter discusses the growing need for law students and researchers to acquire specific skills to understand complex and increasingly prominent transnational phenomena in environmental law. They focus on three inter-related methodological challenges. One is the use and further development of comparative legal methods for the study of transnational environmental law. The second is the reliance on empirical legal research for the study of transnational environmental law. The chapter assesses progress in empirical environmental legal research and the degree to which it engages with transnational issues, and transnational environmental issues specifically. The final challenge is effectively conducting collaborative and interdisciplinary work. Discussion on this issue includes questions around research ethics and funding needed to advance collaborative and inter- and transdisciplinary research on transnational environmental law. In conclusion, Morgera, Parks and Schroeder identify questions for further research and key issues to be addressed through embedded peer learning and peer review in postgraduate education and in collaborations between researchers and other stakeholders. Part II of the Research Handbook shines a light on the manifold legal questions and challenges that arise in the wake of the proliferation of transnational environmental governance. Contributions in this part of the book, by Till Markus and Olaf Dilling; Jerneja Penca; Aleksandra Čavoški; Suzanne Kingston; and Josephine van Zeben, respectively, tackle core themes of regulation and governance studies, ranging from the identification and categorization of transnational environmental governance regimes, to regulatory instrument choice, compliance, and the legality and legitimacy of transnational environmental governance. Chapter 5, ‘“Interglobalsuprasubandtransialidocious”: mapping and disentangling transnational environmental governance’ by Till Markus and Olaf Dilling, is designed to help the readers plot their course through the varied, ever-expanding and often confusing thicket of environmental regulatory and governance regimes. It provides a broad typology and a corresponding diagram of existing and emerging transnational governance phenomena, which are then explored in greater detail. The article emphasizes that transnational governance mechanisms can best be understood when considered from the perspective of more traditional and formal modes of government and law in which they are embedded and from which they have developed varying degrees of independence. Jerneja Penca’s contribution on ‘Regulatory instruments of transnational environmental governance’ continues the examination of the essential characteristics of transnational environmental governance through a review of the variety of governance instruments, methods and tools. In Chapter 6, Penca discusses the research on transnational environmental regulatory instrumentalization, presenting both traditional attempts by scholars to classify regulatory instruments and more recent approaches that have replaced binary divisions. The chapter argues for the need to examine individual instruments in the broader context of polycentric environmental regimes as well as governance structures and processes. According to Penca, an

The meanings of transnational environmental law  13 awareness of the values and concerns about social justice, which underpin various regulatory attempts, is just as integral to the study of transnational environmental regulation as is the focus on compliance, enforcement and effectiveness aspects. Compliance, enforcement and effectiveness are, precisely, the key themes addressed in ‘Transnational environmental regulation and evolving approaches to compliance’. In Chapter 7, Aleksandra Čavoški documents an evolution in both thinking about and the practice of transnational environmental regulatory enforcement, from traditional enforcement approaches in transnational environmental law to a more effective use of management strategies to bolster compliance. To that end, Čavoški examines the deployment of these strategies in highly institutionalized legal orders as well as in looser transnational networks. This chapter further argues that management-based approaches to compliance are strengthened when we adopt an action-oriented understanding of compliance. In Chapter 8, Suzanne Kingston turns her attention to the reception of transnational environmental governance within the judiciary. ‘Transnational environmental governance before the courts’ examines how international and transnational judicial bodies have sought to meet the challenges arising from operating in and needing to respond to a non-traditional regulatory context. Kingston does so by means of a three-pronged focus on courts and private norm creation; courts and private enforcement of environmental law; and courts and transnational diffusion of sources. She concludes that, while others have argued that transnationalization puts the role of courts in jeopardy, the judiciary generates significant added value as a transnational environmental actor in its own right. Public adjudication remains key as an impetus for broader societal transformation and debate. Whereas Chapter 8 concentrates primarily on the judicial construction of the legality of transnational environmental governance, Josephine van Zeben’s contribution engages with the question of legitimacy of transnational environmental governance, for which legality serves as a fundamental – yet not exclusive – benchmark. In ‘Facing the legitimacy challenge: law as a disciplining force for transnational environmental governance’, van Zeben reminds us that transnational environmental governance has developed in part as a response to the perceived lack of legitimacy of existing national and international regulatory systems. As the geographical scope of environmental impacts seldom overlaps with jurisdictional boundaries, non-state actors have increasingly created systems of governance that exist in parallel with the state-based forms of organization. This has created increased opportunity for voice and participation but also raises questions of legitimacy. Chapter 9 considers the role of law as a vehicle for legitimacy in transnational environmental governance, both in its own right and in relation to other sources of legitimacy. Particular attention is paid to the increasingly polycentric nature of transnational environmental governance and how this interacts with established understandings of the role of law in governance systems.  Part III of the Research Handbook moves the discussion forward by examining distinctive mechanisms and consequences of the transnationalization of environmental governance, namely: environmental constitutionalization, discussed by Louis Kotzé; the multiplication of environmental regime interlinkages, explored by Jonathan Verschuuren; and the scope for the emergence and maturing of transnational, or even global, environmental legal values, analysed by Emily Barritt. Part III starts off with Louis Kotzé’s chapter on ‘The transnationalization of environmental constitutionalism’. After reminding the reader of the considerable potential of environmental protection through its constitutional incorporation, Kotzé presents environmental constitution-

14  Research handbook on transnational environmental law alization as a process with an inherently transnational, rather than a purely domestic, dimension. Chapter 10 interrogates the transnationalization of environmental constitutionalism by exploring the notion of constitutional environmental protection; identifying the context and processes that give rise to the transnationalization of environmental constitutionalism; and reflecting on some of the manifestations of transnational environmental constitutionalism. In Chapter 11, Jonathan Verschuuren examines one of the inevitable consequences of the expansion of transnational environmental governance, namely, the opportunities and rapidly growing need for regime interlinkages. ‘Regime interlinkages: examining the connections between transnational climate change and biodiversity law’ uncovers the complexity of the interactions between these two key areas of transnational environmental policy. Across the globe, biodiversity has been declining at an alarming rate for several decades, mainly due to habitat loss, pollution and alien invasive species. Global climate change adds further significant threats to already vulnerable species of wild flora and fauna. At the same time, biodiversity plays an essential role in climate change mitigation and adaptation. Healthy forests and other forms of vegetation, soils and oceans are indispensable in any climate change mitigation policy for their carbon uptake. The crossroads of biodiversity law and climate change law therefore provides an excellent case study to research regime interactions – with a potential for disruptive impacts – and the growing need for transnational legal and regulatory orchestration in an era of globalized and systemic environmental risks. Encouragingly, Verschuuren’s work shows that current climate law and biodiversity law regimes at the international and the EU level are increasingly working together. Progress, however, is terribly slow and there are still areas where neither regime speaks to the other or the regimes are in conflict. Faster and more intense forms of inter-regime collaborations and interactions are needed. Last but by no means least, Emily Barritt’s contribution takes up the gauntlet thrown by Penca to look beyond questions of compliance and to consider transnational environmental governance as a vehicle for the delivery of environmental and social justice. In Chapter 12, ‘Global values, transnational expression: from Aarhus to Escazú’, Barritt seizes on the adoption of regional agreements on environmental procedural rights as an opportunity to examine the distinctive nature of transnational environmental values, which are characterized simultaneously by appeals to universality as well as pronounced degrees of differentiation. She argues that, even though it reflects key principles of international environmental law (transparency, participation, and democracy), the Aarhus Convention has failed to attract adherents beyond its own regional sphere. Instead, it has provided a theme, for transnational variation, incorporated in the 2018 Escazú Convention. The chapter examines how international values of environmental law find transnational expression in these sibling regional agreements, highlighting and explaining the ways in which these two instruments differ. It also considers the scope for the development of other regional instruments. Finally, Barritt reflects on the ways in which transnational environmental law, as expressed in regional agreements, allows for different legal cultures to elaborate on core values of international environmental law.  Part IV of the Research Handbook is dedicated to exploring the contributions of a selection of non-state actors to the development and interpretation of transnational environmental law. Jolene Lin tackles the role of subnational actors in the development of transnational environmental law, focusing particularly on their potential to contribute to climate change law. Lisa Benjamin, in turn, addresses the position of corporate actors in transnational environmental law, a position which is both brimming with potential and beset with challenges for the development of effective legal responses. Finally, Benjamin Richardson casts light on a cohort of

The meanings of transnational environmental law  15 actors which are increasingly prominent in transnational legal and governance proceedings, yet rarely subjected to a sustained analysis, namely, artists. In ‘The role of subnational actors in transnational climate change law’, Jolene Lin takes the proliferation of activity by cities and other subnational actors in the climate change space as a point of departure to study the growing involvement of subnational entities in transnational environmental lawmaking. Their activities take on a transnational dimension when, for example, subnational governments participate in cross-border networks to develop and implement norms, practices and voluntary standards. Subnational governments have also become involved in litigation. Indeed, some subnational governments pursue litigation to seek progress on climate change action where national governments and businesses are perceived as insufficiently proactive. Chapter 13 explores the role of subnational entities – cities, states, and regions – in developing and implementing transnational climate change law. It advances the argument that the participation of subnational actors in transnational legal processes invites us to re-examine theories of international lawmaking that posit the state as the only legally relevant actor in international affairs. Chapter 14, ‘The responsibilities of corporations: new directions in environmental litigation’ by Lisa Benjamin, starts with an acknowledgement of the overwhelmingly negative impact corporations traditionally have had on environmental quality, while at the same time recognizing their potential for positive contributions. However, carbon major corporations in particular have been slow to transition, and transnational environmental law has been largely ineffective to date in fixing these entities with legal obligations. Other transnational efforts have also had limited effect. Benjamin argues that litigation can open up avenues for the introduction of functional equivalents to good governance expectations, including human rights-based arguments against multinational enterprises such as carbon major corporations. The investigation by the Commission on Human Rights of the Philippines against 47 carbon majors is taken as an analytical point of departure and it serves as an expository exercise to highlight the damaging role these entities continue to play in the context of climate change. Situated in a developing country which was devastated by Typhoon Haiyan, it highlights the devastating impacts of climate change on the climate vulnerable. The final chapter in this grouping is ‘Art and activism in transnational environmental governance’ by Benjamin Richardson. He asserts that global environmental governance has important aesthetic dimensions, which tend to be overlooked in our preoccupation with the scientific, economic or ethical dimensions of environmental policy and governance. Yet environmental aesthetics are vital in shaping people’s emotional empathy for nature, and building a ‘sense of place’ or cultural connection to landscapes. The arts can help to mediate how people understand the environment, particularly in light of the changing aesthetics of the Anthropocene. In recent years, artists from many parts of the world have emerged as an important new stakeholder in the green activist space, using visual and performance arts, and music, to critique prevailing environmental practices, such as those associated with the fossil fuels economy, and to use art as means for advocating political and legal changes to respond to these problems. Chapter 15 evaluates the goals, methods and influence of green activist art, such as that used by the Extinction Rebellion movement, in transnational environmental governance. The fifth part of the Research Handbook comprises studies in border-crossing, which focus on transboundary environmental impacts and regime interactions. An Hertogen revisits the tension between state sovereignty and the transboundary reach of both environmental harm and environmental protection in a transnational context. In the following chapter, Sébastien

16  Research handbook on transnational environmental law Jodoin, Ling Chen and Carolina Gueiros explore the concept of flexibility as an alternative framing for transboundary environmental regime interactions. Geetanjali Ganguly explores the scope and potential of transnational judicialization, whereas Robert Percival reflects on the lessons, if any, to be drawn from large-scale transboundary environmental litigation. Finally, Ole Pedersen and Shawkat Alam examine the ever-intensifying interactions between the fields of environmental law and human rights, and environmental law and trade law, respectively. ‘Sovereignty, unilateralism, and the transboundary reach of environmental protection’, by An Hertogen, reminds us that the exercise of jurisdiction beyond the territory of the state is often challenged as unilateralism which infringes upon the sovereignty of other states. However, Hertogen draws our attention to a second, overlooked, version of unilateralism, which occurs when states, acting within their territory, cause environmental harm to other states or to areas beyond states’ jurisdiction. Although such activities raise no issues under traditional understandings of territorial jurisdiction, they can affect how another state exercises its sovereignty. After outlining the tension between sovereignty and unilateralism in the context of the environment, Chapter 16 explores how international law practice and scholarship have tried to overcome this challenge through multilateral initiatives, but also through more nuanced understandings of territorial jurisdiction and sovereignty. In Chapter 17, Sébastien Jodoin, Ling Chen and Carolina Gueiros focus on flexibility as a potential response to the impasse between sovereignty and the transboundary nature of environmental impacts. ‘Vice or virtue? Flexibility in transnational environmental law’ outlines the origins, concept, and manifestations of flexibility in transnational environmental law, examining the ways in which it has been recognized in multilateral, bilateral, and private forms of transnational environmental governance. Jodoin, Ling and Gueiros show that, on the one hand, flexibility can be seen as a practice that enhances the legitimacy and compliance pull of transnational environmental governance and provides opportunities for forms of experimentation, learning, reflexivity, and adjustment that are necessary for actors to grapple with the complexity, uncertainty, and changing nature of contemporary environmental problems. On the other hand, flexibility can be seen as undermining the predictability, certainty, and binding character of transnational environmental law, engendering the fragmentation of transnational legal norms and practices, generating inefficiencies, and ultimately helping to preserve unsustainable practices and patterns of behaviour. Next, the chapter assesses flexibility in the context of the transnational legal process for REDD+. In doing so, the authors consider the complex interactions between the development and implementation of legal norms and practices across the transnational, national, and local levels as well as between public and private forms of governance and the extent to which they have enhanced or undermined the effectiveness of REDD+. Geetanjali Ganguly’s contribution on ‘Judicial transnationalization’ shifts the focus from regime interactions in the regulatory sphere towards the judiciary. With the growth of litigation around issues such as climate change in recent years, courts and judges have stepped up their engagement with environmental problems through the formation of transnational judicial networks and alliances, with a view to knowledge sharing and enhanced coordination. Chapter 18 examines judicial exchanges and argues that they contribute to the transnationalization of environmental law and regulation. By considering judicial networking on environmental issues such as water justice and examples of high profile climate litigation from around the world, Ganguly contends that national courts are co-producing a new and emergent body of transnational environmental jurisprudence and soft law. These judicially fostered transdisci-

The meanings of transnational environmental law  17 plinary knowledge practices and the resulting cosmopolitan jurisprudence signify a shift away from a purely statist conception of environmental governance towards the transnationalization of environmental regulation and law writ large in recent years. Robert Percival’s chapter, in turn, highlights a different, and highly problematic, dimension of the relation between environmental litigation and transboundary impacts. ‘Transboundary litigation: what can we learn from Chevron–Ecuador?’ revisits one of the most challenging and frustrating cases in the history of environmental law. Despite decades of litigation, residents of the Oriente region of Ecuador have been unable to force remediation of, or compensation for, massive pollution from oil development in the 1970s. Chapter 19 tracks the myriad twists and turns of the litigation, which was repeatedly tainted by allegations of bad faith on both sides, and which resulted in a US court blocking enforcement of a Peruvian court award for damages and courts in Argentina, Brazil and Canada holding that Chevron’s subsidiaries in their countries are not responsible for the parent corporation’s debts. As Percival argues, the lessons from the case are complex but, at the very least, the case illustrates how difficult it is to hold multinational corporations accountable for environmental harm in developing countries. In Chapter 20, ‘Human rights in a changing environment’, Ole Pedersen examines the discourse between human rights and environmental law through the prism of case law and jurisprudence from human rights tribunals (primarily the European Court of Human Rights), showing that a strong driver behind the emergence of the human rights and environmental law discourse is the transnationalization of environmental standards. This transnationalization of domestic, supranational and international environmental law standards has, in certain jurisdictions, given rise to the emergence of concrete environmental human rights obligations which in turn translate into specific human rights standards. This emergence, however, raises questions in relation to the expertise of human rights bodies, the tendency for human rights discourse to ‘crowd out’ other assumptions, and the contested and contingent nature of environmental risks and problems. In the final chapter of this book, Shawkat Alam addresses the regime interactions between the disciplines of environmental and international trade law. Chapter 21, ‘Intersections between climate change and the WTO’, departs from the abiding goal within the international community to balance economic growth with sustainable development. The World Trade Organization, the General Agreement on Tariffs and Trade and other multilateral trade agreements play a central role in maintaining a system of open international trade to ensure that states do not unjustifiably discriminate between foreign and locally produced goods and services, while still maintaining this balance. Yet the achievement of this goal of balanced growth is now confronted with intensified challenges where paradigms of free trade conflict with climate change policies. Chapter 21 examines the varying challenges arising from the intersection of climate change policy and international trade law. In doing so, it explores how climate change action can operationalize concepts that are inherent in both international trade and environmental law, namely, common but differentiated responsibilities and special and differentiated treatment to illustrate that the two distinct legal regimes share the same path towards achieving sustainable development. The Research Handbook concludes with closing remarks by the editors which highlight the overarching messages of both inspiration and caution which emanate from the contributions to this book, and indicate directions for future research.

2. Exploring transnational legal orders: using transnational environmental law to strengthen the global regulation of black carbon for the benefit of the Arctic region Kati Kulovesi

1 INTRODUCTION Can our evolving understanding of transnational environmental law (TEL) produce tangible results in terms of environmental protection? This chapter examines the question by using climate change mitigation in the Arctic as a case study.1 The idea of mitigating black carbon emissions to reduce Arctic warming has been subject to growing policy attention in recent years. The polar region is warming faster than twice the global average rate and is therefore particularly vulnerable to climate change.2 The impacts of climate change are already clearly visible and there are serious concerns for the loss of Arctic sea ice, threats posed to ecosystems, traditional lifestyles as well as sources of income and livelihood, such as fisheries, reindeer husbandry and tourism. Changes in the Arctic environment also have important global implications given that the melting of the Arctic glaciers, led by the Greenland Ice Sheet, is the largest land-ice contributor to global sea level rise.3 At the same time, the decline of sea ice makes way for new economic activities in the Arctic, opening up new possibilities for shipping and resource extraction.4 Black carbon is currently considered one of the most important anthropogenic drivers of climate change along with carbon dioxide (CO2) and methane, and its impact on the Arctic may be even stronger than elsewhere given that it accelerates the melting of snow and ice.5 In addition, black carbon aerosols are part of fine particulate matter (PM 2.5) which causes serious negative impacts on human health. Against this background, this chapter analyses opportunities to strengthen the global regulation of black carbon for the benefit of the Arctic. In doing so, it draws on the growing body of literature on transnational environmental law (TEL) and explores the benefits of using TEL as an analytical framework instead of the more traditional and narrow focus on formal international law. As Heyvaert has argued, ‘state-based environmental regulation no longer offers the full picture, and this leaves us vulnerable to analytical

1 This chapter has received funding from the ClimaSlow project, ‘Slowing Down Climate Change: Combining Climate Law and Climate Science to Identify the Best Options to Reduce Emissions of Short-Lived Climate Forcers in Developing Countries’ (ERC Grant Agreement No. 678889) under the EU Horizon 2020 research and innovation programme. 2 Arctic Monitoring and Assessment Programme, Arctic Climate Change Update 2019, 2. 3 Ibid 8. 4 Ibid 9. 5 Ibid 10.

18

Exploring transnational legal orders  19 blind spots’.6 Indeed, when looking at the regulation of black carbon emissions affecting the Arctic, a focus on international law reveals only a weak layer of regulation with important gaps concerning both reporting and mitigation of black carbon emissions. However, the traditional image hides from view some important openings for stronger regulatory action. In contrast, widening the perspective and looking at the landscape through the broader perspective of TEL reveals a much more active regulatory landscape, and leads to a more nuanced understanding of the opportunities to control black carbon emissions affecting the Arctic. The basic idea is also in line with other streams of legal scholarship that attempt to conceptualize the ongoing transformation of the legal world and paradigm change through different lenses, such as global law and global legal pluralism.7 From the perspective of international law, Pauwelyn, Wessel and Wouters describe the situation in the following terms: ‘The international legal order has radically transformed in the past, on all three axes of actors, processes, and outputs. The conceptual boundaries of how international law may look in the future are wide open.’8 This chapter is structured as follows: Section 2 briefly presents the scientific argument for mitigating black carbon emissions affecting the Arctic, and draws attention to differences in the regulatory landscape seen through a traditional perspective that focuses on formal international law, and through an analytical framework informed by TEL which places more weight on soft law and non-state actors. Section 3 engages in detailed analysis of the current regulatory landscape and identifies options to strengthen it. Section 4 concludes by highlighting the usefulness of a TEL perspective for answering the chapter’s overarching investigation into opportunities to strengthen the regulation of black carbon emissions affecting the Arctic.

2

BLACK CARBON AND THE ARCTIC: SCIENTIFIC AND LEGAL PERSPECTIVES

2.1

The Case for Regulating Black Carbon Emissions in the Arctic

The special report by the Intergovernmental Panel on Climate Change (IPCC) on the impacts of global warming by 1.5°C above pre-industrial times recognizes the role of black carbon and other short-lived climate pollutants (SLCPs).9 Accordingly, global greenhouse gas (GHG) emission pathways that limit warming to 1.5°C with no or limited overshoot (i.e., temporarily exceeding the temperature goal) ‘involve deep reductions of methane and black carbon, 35 per cent or more of both by 2050 relative to 2010’.10 Scientific assessments under the auspices of

6 V. Heyvaert, Transnational Environmental Regulation and Governance: Purpose, Strategies and Principles (Cambridge University Press 2018) 3. 7 For an overview of different responses, see J. Husa, Advanced Introduction to Law and Globalisation (Edward Elgar 2018). On global law, see N. Walker, Intimations of Global Law (Cambridge University Press 2015); on global legal pluralism, see P. Schiff Berman, Global Legal Pluralism. A Jurisprudence of Law beyond National Borders (Cambridge University Press 2012). 8 J. Pauwelyn, R. Wessel and J. Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’ (2014) 25 European Journal of International Law 733, 734. 9 Short-lived climate pollutants also include methane, tropospheric ozone and hydrofluorocarbons. 10 Intergovernmental Panel on Climate Change, ‘Summary for Policymakers’ in V. Masson-Delmotte and others (eds), Global warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of

20  Research handbook on transnational environmental law the Arctic Council have argued that black carbon mitigation would be particularly beneficial for the Arctic region.11 At the same time, scientific uncertainty remains concerning how much black carbon mitigation reduces global warming.12 2.2

Benefits of TEL as Analytical Framework

Since the creation of the Westphalian system in the 17th century, legal thinking has tended to focus on formal law produced by sovereign states, and the duopoly of national and international law. Through these traditional legal lenses, most of the Arctic region falls under the respective national jurisdictions of the eight Arctic states, namely Canada, Denmark, Finland, Iceland, Norway, Russian Federation, Sweden and the United States (US).13 These countries also control large Arctic maritime areas within their continental shelves and Exclusive Economic Zones.14 The legal status of the Arctic is thus very different compared to the other polar region, Antarctica, which is governed through a specialized international legal regime.15 In the Arctic, only certain maritime areas are classified as high seas and thus are part of the common heritage of mankind.16 International law also applies to black carbon emissions in the Arctic through the participation of Arctic states in multilateral environmental agreements (MEAs), the most important of which are the Gothenburg Protocol17 to the Convention on Long-Range Transboundary Air Pollution,18 regulating black carbon emissions as part of fine particulate matter, and the Paris Agreement,19 which sets ambitious climate change mitigation goals and establishes a regime for global climate change mitigation. While there is certainly scope to strengthen black carbon mitigation in the Arctic through international and national law, the examples discussed in this chapter illustrate that such a traditional focus leaves some important blind spots, failing to conceive the full range of potential opportunities. Indeed, the key forum to address black carbon emissions in the Arctic thus far has been the Arctic Council. As the Council’s regulatory activities typically rely on voluntary measures and soft law instruments, much of its work falls outside the scope of traditional legal analysis even if the Council has been playing a clear role in advancing black carbon mitigation in the Arctic. Taking a broader perspective, Canada, Denmark, Finland, Norway, Sweden and the US have

strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (Cambridge University Press 2018) 14, para. C.1.2. 11 Arctic Monitoring and Assessment Programme (n 2). 12 T. Takemura and K. Suzuki, ‘Weak Global Warming Mitigation by Reducing Black Carbon Emissions’ (2019) 9 Scientific Reports 4419. 13 T. Koivurova, ‘Arctic Resources: The Exploration of Natural Resources in the Arctic from the Perspective of International Law’ in E. Morgera and K. Kulovesi (eds), Research Handbook on International Law and Natural Resources (Edward Elgar 2016) 350–51. 14 Ibid. 15 Ibid. 16 Ibid. 17 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone (adopted 30 November 1999, entered into force 15 May 2005) 2319 UNTS 81 (Gothenburg Protocol). 18 Convention on Long-Range Transboundary Air Pollution (adopted 16 November 1979, entered into force 16 March 1983) 1302 UNTS 217 (LRTAP). 19 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740.

Exploring transnational legal orders  21 been active in the Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (CCAC). This voluntary partnership of governments, international organizations, scientists, businesses and non-governmental organizations (NGOs) has had a noticeable influence on the regulatory landscape around SLCPs, including through its work to provide support for the development of laws, regulations, policies and plans. The picture becomes even more colourful when taking into consideration spatial complexities and the fact that emissions originating from the Arctic states are responsible for only about a third of black carbon’s warming effects in the Arctic.20 The other two-thirds come primarily from black carbon emissions outside Arctic countries, which raise global temperatures and thus affect the Arctic indirectly.21 In addition, black carbon emissions are transported to the Arctic from further south.22 This means that the involvement of countries from outside the Arctic region – in particular China and India as key sources of global black carbon emissions – would bring important benefits for the Arctic environment.23 For the purposes of this chapter, it means that an even wider spectrum of jurisdictions, legal regimes and instruments appear as relevant when identifying opportunities to strengthen black carbon mitigation in the Arctic. This overview of the relevant legal landscape points towards a mix of overlapping and interlinked combinations of jurisdictions and regimes. It also highlights the role of non-state actors and soft law in a way that challenges the traditional binary distinction between law and non-law.24 This, then, points towards the usefulness of drawing on TEL scholarship for the purposes of this analysis. To be sure, TEL scholarship is an emergent field and its definitional boundaries are not fixed.25 This chapter follows the understandings of TEL put forward by Shaffer and Heyvaert respectively, which conceive ‘transnational law as transnational construction and flow of legal norms’.26 This includes ‘law that targets transnational events and activities’ as well as ‘legal norms that are exported and imported across borders, with the involvement of international and regional institutions and transnational networks that define and convey the legal norm’.27 Unlike some definitions of transnational law, Heyvaert does not see international law in the traditional sense as excluded from the scope of transnational law.28 Similarly, Bodansky and Shaffer argue that ‘transnational environmental law encompasses all environmental law norms that apply to transboundary activities or that have effects in more than one jurisdiction’.29 Such a broad understanding of the relevant regulatory landscape seems useful in that it recognizes the relevance of MEAs and international legal regimes, but also pays attention to various other sites of potential regulatory action. The aim in Section 3 is

20 Arctic Monitoring and Assessment Programme, Summary for Policymakers: Arctic Climate Issues 2015. Short-Lived Climate Pollutants (AMAP 2015) 9. 21 Ibid. 22 C. Jiao and M.G. Flanner, ‘Changing Black Carbon Transport to the Arctic from the Present Day to the End of the 21st Century’ (2016) 121(9) Journal of Geophysical Research: Atmospheres 4734. 23 Ibid. 24 For a detailed discussion, see also K. Kulovesi, M. Mehling and E. Morgera, ‘Global Environmental Law: Context and Theory, Challenge and Promise’ (2019) 8(3) Transnational Environmental Law 405. 25 Heyvaert (n 6) 25; see also Kulovesi, Mehling and Morgera (n 24). 26 Heyvaert (n 6) 30. 27 Ibid. 28 Ibid 29. 29 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) 1 Transnational Environmental Law 31, 32.

22  Research handbook on transnational environmental law to provide a more detailed overview of the relevant transnational legal landscape.30 This serves the goal of understanding the current gaps and opportunities to strengthen the regulation of black carbon emissions affecting the Arctic, and offers an interesting opportunity to explore the world of transnational legal orders more closely.

3

REGULATING BLACK CARBON IN THE ARCTIC: EXPLORING THE TRANSNATIONAL LEGAL LANDSCAPE

3.1

Multilateral Environmental Agreements

Two MEA regimes stand out as particularly relevant for mitigating black carbon emissions in the Arctic. The first is the regional regime under the Convention on Long-Range Transboundary Air Pollution (LRTAP); the second is the global climate regime under the United Nations Framework Convention on Climate Change (UNFCCC).31 As explained below, both MEA regimes have some benefits, but currently neither adequately protects the Arctic region. Overall, international law in the traditional sense presently plays only a limited role in regulating transboundary black carbon emissions affecting the Arctic. There are important regulatory gaps concerning both black carbon reporting and mitigation targets. At a first glance, one potential recommendation for strengthening the regulation of black carbon could therefore be to adopt a new MEA or amend an existing one. However, negotiating a new MEA or MEA amendment tends to be a time-consuming and politically uncertain option compared with the alternatives that present themselves when exploring the broader regulatory landscape of multiple transnational legal orders. Hence, a TEL perspective that recognizes the relevance of non-state actors and soft law uncovers a more diverse and nuanced range of regulatory options, also taking into account how different regimes, instruments, institutions and levels of regulatory action could interact and influence each other. The following analysis highlights the role of TEL-type regulation through the Arctic Council and the nationally determined contributions (NDCs) under the Paris Agreement as the most interesting options to strengthen the regulation of black carbon for the benefit of the Arctic region, especially when considering the need arising from climate science to expand mitigation action beyond the Arctic states. Furthermore, continued scientific and technical work through the hybrid and voluntary structures of the CCAC appears to be important. 3.1.1

The Gothenburg Protocol to the Convention on Long-Range Transboundary Air Pollution Adopted in the late 1970s, the LRTAP forms the basis of a regional legal regime of eight protocols seeking to protect air quality in Europe, North America, and Central and West Asia. 30 Analysis in Section 3 builds on our previous work to analyse the relevant regulatory landscape. Y. Yamineva and K. Kulovesi, ‘Keeping the Arctic White: The Legal and Governance Landscape for Reducing Short-Lived Climate Pollutants in the Arctic Region and Opportunities for Its Future Development’ (2018) 7 Transnational Environmental Law 201; S.A. Khan and K. Kulovesi, ‘Black Carbon and the Arctic: Global Problem-Solving through the Nexus of Science, Law and Space’ (2018) 27 Review of European, Comparative and International Environmental Law 5. 31 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC).

Exploring transnational legal orders  23 The 1999 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone (Gothenburg Protocol) seeks to mitigate black carbon emissions by setting an emissions reduction target for PM 2.5 through an amendment adopted in 2012. Fine particulate matter is emitted during the combustion of fossil fuels and biomass, and also originates from other sources, such as industrial processes, soil dust and chemical reactions in the atmosphere involving gaseous emissions. The two key measurements for fine particulate matter are PM 10 and PM 2.5. The latter category is more dangerous for human health and is therefore subject to increasing policy attention. The Gothenburg Protocol is notable as the first MEA to set targets for PM 2.5, including black carbon. While this is an important achievement, the targets included in the Protocol are not very ambitious. The European Union (EU) target, for example, is to reduce PM 2.5 emissions by 22% between 2005 and 2020, while the scientific assessment and scenario analysis underlying the relevant Gothenburg Protocol amendment shows that existing EU legislation is expected to result in emissions reductions of 34% over the same period. Another notable shortcoming in the LRTAP regime is that the reporting of black carbon emissions is not mandatory; however, a number of parties do report their emissions voluntarily. Overall, LRTAP is a well-established MEA regime that has evolved and expanded over the course of decades. In theory, it could form a useful basis for strengthening the mitigation and reporting of black carbon emissions affecting the Arctic region. At the same time, the 2012 amendment to the Gothenburg Protocol establishing emissions reduction targets for PM 2.5 is yet to enter into force, pending ratification by two-thirds of Protocol parties. Overall, there seems to be no strong political appetite to further develop the Gothenburg Protocol with a view to strengthening the regulation of PM 2.5 and black carbon.32 That obstacle aside, another shortcoming from the present perspective is that Iceland and Russia are not parties to the Gothenburg Protocol and, in any case, the LRTAP regime does not cover black carbon emissions from key sources outside the Arctic, such as China and India.33 However, the potential to advance the black carbon mitigation agenda through informal collaboration between the LRTAP and other relevant bodies should not be overlooked. The LRTAP short-term policy recommendation for 2018–19, for example, proposes bringing all relevant actors (the Arctic Council, the CCAC, the Economic Commission for Europe (ECE), the Global Methane Initiative and the United Nations Environment Programme (UNEP)) together in a workshop to discuss how best to collaborate on achieving global SLCP mitigation.34 Indeed, such informal links and interactions between the different regimes, instruments and bodies may play a useful role in fostering future regulation and seem generally useful for advancing the black carbon mitigation agenda.

32 See A. Byrne, ‘Trouble in the Air: Recent Developments under the 1979 Convention on Long-Range Transboundary Air Pollution’ (2017) 26 Review of European, Comparative and International Environmental Law 210, 215, discussing the difficulty of finding leadership within Europe to strengthen action on transboundary air pollution. 33 Even the issue of regional participation has become problematic for the LRTAP regime as a number of former Soviet states have chosen not to participate in the protocols adopted after the end of the Cold War. Ibid 211, 216. 34 United Nations Economic and Social Council, ‘Short-term recommendations of relevance to the 2018–2019 workplan for the implementation of the Convention LRTAP’ (3 October 2017), EB​.AIR/​WG​ .5/​118.

24  Research handbook on transnational environmental law 3.1.2 The Paris Agreement on Climate Change The UNFCCC climate regime was created in 1992 and consists of three treaties: the UNFCCC, the 1997 Kyoto Protocol,35 and the 2015 Paris Agreement. Black carbon has not traditionally been part of mitigation measures under the UNFCCC regime. Instead, the focus has been on carbon dioxide (CO2) and five other GHGs listed in Annex A of the Kyoto Protocol, namely methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. Indeed, the Paris Agreement’s central goal of ‘holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’ cannot be achieved without radical cuts in CO2 emissions.36 However, as shown above, black carbon is currently seen as one of the key anthropogenic climate forcers along with CO2 and methane, and the IPCC Special Report on the 1.5°C target indicates that deep cuts in black carbon emissions are foreseen in global emissions pathways seeking to limit global warming to 1.5°C. The Paris Agreement’s legal design seems to leave scope for including black carbon within the existing mitigation regime. The Paris Agreement relies on nationally determined contributions (NDCs), which essentially contain each Party’s undertaking to mitigate GHG emissions. NDCs are commonly seen as creating ‘obligations of conduct’ rather than ‘obligations of result’; parties to the Paris Agreement have a binding obligation of conduct to prepare, communicate and maintain NDCs, as well as to pursue domestic measures to implement them.37 NDCs are updated at five-year intervals and each should be progressively more ambitious than the previous one. Before the Paris Agreement, climate change mitigation under the UNFCCC and the Kyoto Protocol focused on setting economy-wide targets for GHG emissions.38 An obligation to implement specific climate change mitigation policies and measures has sometimes been discussed but proved highly controversial.39 In contrast, the fairly flexible and nationally driven structure of the Paris Agreement’s mitigation regime entails interesting potential to include both economy-wide mitigation targets and specific climate policies and measures. While the Paris Agreement requires developed countries to include economy-wide emissions reduction targets in their NDCs and encourages developing countries to move towards such targets,40 this does not prevent countries from also including specific policies and measures in their NDCs. This potential has not gone unnoticed, and it has been argued that ‘NDCs can be instrumental in driving domestic policy agendas and priorities.’41 Proposals have been made in the literature Kyoto Protocol (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (KP). 36 Paris Agreement, Art. 2.1(a). 37 D. Bodansky, J. Brunnée and L. Rajamani, International Climate Change Law (Oxford University Press 2017) 231; R. Bodle and S. Oberthür, ‘Legal Form of the Paris Agreement and Nature of Its Obligations’ in D. Klein and others (eds) The Paris Agreement on Climate Change: Analysis and Commentary (Oxford University Press 2017) 91. 38 Art. 4.2(b) of the UNFCCC includes a goal for developed countries to return their greenhouse gas emissions to 1990 levels. Article 3 and Annex B of the Kyoto Protocol set binding emission reduction targets for Annex I countries for the basket of six greenhouse gases listed in Annex A. 39 F. Yamin and J. Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge University Press 2004) 107–12. 40 Paris Agreement, Art. 4.4. 41 K. Ross and others, ‘Strengthening Nationally Determined Contributions to Catalyze Actions that Reduce Short-Lived Climate Pollutants’ (2018) World Resources Institute Working Paper, https://​ 35

Exploring transnational legal orders  25 to use NDCs, inter alia, as a basis for strengthening action on SLCPs,42 fossil fuel subsidies,43 and methane,44 as well integrating ocean-related mitigation and adaptation actions.45 The 2018 Katowice Rulebook has strengthened the international regulation of NDCs and introduced more specific rules on information to facilitate clarity, transparency and understanding of NDCs.46 However, nothing in the more detailed guidance on NDCs seems to prevent countries from including black carbon emissions reduction targets in their NDC. Indeed, as explained in Section 3.4 below, while this issue has not been discussed in the formal negotiations under the UN concerning the implementation of the Paris Agreement, the CCAC has been successfully promoting this approach through its partner countries. 3.2

Transnational Law from the EU

Looking at the transnational legal landscape, EU environmental law is also relevant for black carbon mitigation in the Arctic, both because parts of the Arctic fall under the jurisdiction of EU Member States and because air pollution from other EU Member States contributes to Arctic warming.47 The EU is of course one of the key sources of transnational law and governance beyond the state. Looking at how black carbon is regulated in the EU, several pieces of legislation are relevant. The main ones include EU air quality legislation in Directive 2016/2284 (the National Emissions Ceiling Directive or NEC Directive)48 and Directives 2004//107/EEC and 2008/50/EC44 (the Ambient Air Quality Directives or AAQ Directives).49 The NEC Directive transposes the Gothenburg Protocol’s PM 2.5 mitigation targets into EU law,50 and lays down more ambitious emissions reduction targets for the period beyond 2030. Accordingly, the EU will reduce PM 2.5 emissions by 22% between 2020 and 2029 compared to 2005 levels, and by 49% from 2030 onwards.51 The AAQ Directives require the EU Member

wriorg​.s3​.amazonaws​.com/​s3fs​-public/​18​_WP​_SLCPs​_toprint2​.pdf​?​_ga​=​2​.112189124​.1172196775​ .1559293506​-1208204237​.1559293506. 42 D. Shindell and others, ‘A Climate Policy Pathway for Near- and Long-Term Benefits: Climate Actions Can Advance Sustainable Development’ (2017) 356 Science 49. 43 H. van Asselt and K. Kulovesi, ‘Seizing the Opportunity: Tackling Fossil Fuel Subsidies under the UNFCCC’ (2017) 17 International Environmental Agreements: Politics, Law and Economics 357. 44 V. Pekkarinen, ‘Going beyond CO2: Strengthening Action on Global Methane Emissions under the UN Climate Regime’, Review of European, Comparative and International Environmental Law (2020), https://​doi​.org/​10​.1111/​reel​.12329. 45 For an overview of ongoing policy discussion by UN climate negotiators in preparation for COP 25 in Chile in November 2019: see M.E. Recio and J. Bansard, Before the Blue COP Bulletin (International Institute for Sustainable Development, 13 April 2019). 46 UNFCCC, Decision 4/CMA.1, Further guidance in relation to the mitigation section in decision 1/ CP.21, CMA/2018/3/Add.1. 47 On how black carbon is transported from Europe and other regions to the Arctic, see Jiao and Flanner (n 22). 48 Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC, OJ L 344, 17 December 2016, 1–31. 49 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe, OJ L 152, 11 June 2008, 1–44. 50 Pollutants covered by the NEC Directive include sulphur dioxide, ammonia, nitrogen oxides, volatile organic compounds and PM 2.5. 51 Annex II of the NEC Directive.

26  Research handbook on transnational environmental law States to monitor air quality in their territory in a harmonized and comparable manner, as well as setting air quality standards. For PM 2.5, Directive 2008/50/EC44 includes both national exposure reduction targets for the protection of human health,52 as well as PM 2.5 target values and limit values.53 The EU Member States must ensure that PM 2.5 concentrations do not exceed the limit value and ‘take all necessary measures not entailing disproportionate costs’ to avoid PM 2.5 concentrations in the ambient air exceeding the target value.54 As Romppanen has indicated, other areas of EU law too are relevant for regulating black carbon emissions, including those related to transport and eco-design.55 This is because diesel emissions from the transport sector are among the largest sources of black carbon in the EU, along with residential wood combustion.56 3.3

Soft Law from the Arctic Council

While international and EU law are relevant, the key actor regulating black carbon emissions in the Arctic is the Arctic Council. Established in 1996, the Arctic Council includes the eight Arctic states, as well as six indigenous peoples’ organizations as permanent participants who need to be consulted before any decisions are taken. The Council has been characterized as a ‘soft law body’.57 This is clearly also reflected in its work on black carbon, which has focused on scientific assessment, reporting and voluntary mitigation goals. In 2013, the Arctic Council established the Task Force for Action on Black Carbon and Methane.58 In 2015, it adopted the Framework for Action on Enhanced Black Carbon and Methane Emission Reductions.59 This included an undertaking by the Arctic states to reduce black carbon and methane emissions through the development of national action, action plans and mitigation strategies.60 The Arctic states also committed to providing black carbon inventories from 2015 onwards.61 All states apart from Russia have complied with this undertaking. Importantly for the current focus on broader participation in black carbon mitigation efforts, the Arctic Council encouraged its 13 observer states to participate in the actions described in the 2015 Framework, by taking steps such as strengthening domestic actions, developing emissions inventories and taking part in relevant meetings.62 This has been successful in that most of the observer states, including

Art. 15. Art. 16. 54 Ibid. 55 For an overview, see S. Romppanen, ‘Arctic Climate Governance via EU Law on Black Carbon’ (2018) 27 Review of European, Comparative and International Environmental Law 45. 56 Ibid 49–50. 57 T. Koivurova, P. Kankaanpää and A. Stępien, ‘Innovative Environmental Protection: Lessons from the Arctic’ (2015) 27 Journal of Environmental Law 285. 58 Arctic Council, Kiruna Declaration (Arctic Council Secretariat, 15 May 2013), https://​oaarchive​ .arctic​- council​.org/​handle/​11374/​93. 59 Arctic Council, Enhanced Black Carbon and Methane Emission Reductions: An Arctic Council Framework for Action (Arctic Council Task Force for Action of Black Carbon and Methane, 24–25 April 2015), https://​oaarchive​.arctic​-council​.org/​bitstream/​handle/​11374/​610/​ACMMCA09​_Iqaluit​ _2015​_SAO​_Report​_Annex​_4​_TFBCM​_Framework​_Document​.pdf​?sequence​=​1​&​isAllowed​=​y. 60 Ibid. 61 Ibid. 62 Ibid. 52 53

Exploring transnational legal orders  27 India, have already submitted inventories of their black carbon emissions.63 However, China – a key observer state from the point of view of black carbon mitigation – has yet to do so. In 2017, the Arctic Council adopted an aspirational collective goal to limit black carbon emissions by 22–33% below 2013 levels by 2025.64 While the target is not very ambitious, it is notable as the first regulatory step towards reducing black carbon emissions in the Arctic. Indeed, in its 2019 report, the Arctic Council’s Expert Group on Black Carbon and Methane identified considerable progress towards reducing black carbon emissions in the Arctic.65 Reporting by seven of the eight Arctic states (excluding Russia) shows a 16% reduction in black carbon emissions by 2016 and a projected average reduction of 46% by 2025 based on current policies.66 In other words, the Arctic states are projected to exceed the voluntary goal. This, then, points towards potential to strengthen the voluntary goal. However, the prevailing negative attitude towards global climate change cooperation in the US is currently hampering the Council’s work on black carbon. The Arctic Council Ministerial Meeting in Rovaniemi, Finland, in May 2019, for the first time in the Council’s history, was unable to adopt an outcome declaration referencing climate change given the opposition of the US. Overall, the Arctic Council has proven itself a useful forum for transnational collaboration on black carbon mitigation and there is certainly potential to continue working towards stronger black carbon mitigation through this forum. It remains to be seen to what extent the current political tensions between the US, Russia and China over the Arctic will continue to cast a shadow over the Council’s work on climate change. 3.4

Informal Influence of the Climate and Clean Air Coalition

Launched in 2012 by UNEP and six countries, the CCAC has been characterized as a voluntary international partnership or an initiative within UNEP.67 From a legal perspective, it is clear that the CCAC does not create binding obligations among or between partners, and each partner individually determines the nature of its participation in the Coalition.68 The CCAC is formed of governments, international organizations, scientists, businesses and NGOs with more than 120 state and non-state partners. Its composition thus challenges the long-standing divide between the public and private spheres, and the traditional, state-centred image of transnational rulemaking. The CCAC’s goal is to help partners and stakeholders create policies and

Black carbon inventories have been submitted by the EU, France, Japan, Poland, Spain, United Kingdom, the Republic of Korea and Italy. They are available at: https://​oaarchive​.arctic​-council​.org/​ handle/​11374/​1169. 64 Arctic Council, Fairbanks Declaration (Arctic Council, 10–11 May 2017), https://​oaarchive​.arctic​ -council​.org/​handle/​11374/​1910. 65 Arctic Council Expert Group on Black Carbon and Methane, Summary of Progress and Recommendations 2019 (Arctic Council, 2019), https://​oaarchive​.arctic​-council​.org/​bitstream/​handle/​ 11374/​2411/​Expert​%20Group​%20on​%20Black​%20Carbon​%20and​%20Methane​%20​-​%20Summary​ %20Progress​%20and​%20Recommendations​%202019​.pdf​?sequence​=​1​&​isAllowed​=​, 10. The priority areas for black carbon mitigation action identified in 2017 included diesel engines, oil and gas production, and residential combustion. 66 Ibid. 67 B. Lode, ‘The Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants’ (2013) 17 American Society of International Law Insights. 68 Ibid. 63

28  Research handbook on transnational environmental law practices that will deliver ‘substantial SLCP reductions over the coming decades’.69 Its strategies include providing knowledge, resources, and technical and institutional capacity to act, as well as supporting the sharing of information, experience, and expertise.70 The Coalition’s activities consist, inter alia, of political outreach and providing support for the development of laws, regulations, policies and plans.71 The CCAC’s activities focus on developing countries; however, their implications are transnational, and are arguably also benefitting the Arctic region. As we have argued elsewhere, the CCAC has been highly influential in terms of raising awareness of links between climate change and air quality, as well as promoting mitigation policies and measures.72 While it is not developing transnational rules on SLCP mitigation per se, its activities to support national SLCP regulation and promote SLCP mitigation within the international regulatory framework clearly fall under the definition of TEL conceived as ‘legal norms that are exported and imported across borders, with the involvement of international and regional institutions and transnational networks that define and convey the legal norm’.73 Overall, many of the insights, ideas and models driving countries and other actors towards stronger black carbon regulation originate from the CCAC, and its work has played a role in addressing gaps related to black carbon regulation under existing MEAs. As identified in Section 3.2, the lack of black carbon reporting obligations is one of the current regulatory gaps. In light of this, 38 of the CCAC’s country members have pledged to work toward reporting black carbon emissions and projections by the end of 2017.74 The CCAC has also promoted the idea of including black carbon and other SLCPs in countries’ NDCs under the Paris Agreement though – as explained in Section 3.1.2 above – this issue has not been subject to formal negotiations under the UN climate regime. A total of 11 countries have included black carbon in their first NDC, ten of which are CCAC members.75 This example highlights such interlinkages and influences between formal and informal international law that tend to escape traditional legal analysis focusing on the Paris Agreement and its implementation rules. In practice, however, the inclusion of black carbon in CCAC members’ NDCs creates an interesting precedent, and a model for other countries to follow with a view to stepping up global regulatory action on black carbon. The opportunity to engage new countries in black carbon mitigation under the Paris Agreement presents itself every five years due to the cyclical nature of the Agreement’s mitigation regime. Parties to the Paris Agreement are required to communicate new or updated NDCs for the first time in 2020.76 The requirement to communicate a new NDC applies to those countries whose first NDC covered a five-year period from 2021 to 2025. The invitation to communicate an updated NDC applies to those

69 The Climate and Clean Air Coalition, ‘What We Do’, https://​ccacoalition​.org/​en/​content/​what​-we​ -do. 70 Ibid. 71 Ibid. 72 Yamineva and Kulovesi (n 30); Khan and Kulovesi (n 309). 73 Heyvaert (n 6). 74 Shindell and others (n 42). 75 These countries are Canada, Chile, Mexico, Nigeria, Jordan, Bangladesh, Liberia, Democratic People’s Republic of Korea, Burundi and Cambodia. Of these, all but North Korea are CCAC partner countries. 76 UNFCCC, Decision 1/CP.21, Adoption of the Paris Agreement, FCCCC/CP/2015/, paras 23 and 24.

Exploring transnational legal orders  29 countries whose first NDC covered a ten-year period from 2021 to 2030. These steps will be repeated in 2025, following the completion of the first global stocktake under Article 14 of the Paris Agreement in 2023. Concrete opportunities to include black carbon mitigation in a country’s NDC include a quantitative emissions reduction target or specific policies and actions.77 Mexico’s first NDC is an example of a quantitative mitigation target. Accordingly: Mexico is committed to reduce unconditionally 25 percent of its Greenhouse Gases and Short-Lived Climate Pollutants emissions (below business as usual) for the year 2030. This commitment implies a reduction of 22 percent of GHG and a reduction of 51 percent of Black Carbon.78

Nigeria’s first NDC offers an example of a black carbon target addressing specific policies and actions: Drastic measures to reduce soot (black carbon) pollution from cars and trucks, small generators and industry are needed. Failure to do so could make Nigeria’s mega-cities unlivable. This includes enforcement of the importation ban of cars over 15 years old, stricter inspections, and further consideration of setting efficiency standards for new cars similar to those in South Korea.79

Key economic sectors for specific black carbon mitigation policies and actions in countries’ NDCs include the transport, residential, agricultural and industrial sectors.80 Technical support by the CCAC can play a role in helping countries to identify potential black carbon mitigation measures to include in an NDC. Indeed, there are some technical challenges involved given that black carbon is not a GHG and therefore not covered by the UNFCCC’s reporting rules. Against this background, countries’ NDC targets to reduce black carbon emissions ‘should be reported and accounted for separately from greenhouse gas emissions’.81 There are also challenges related to the remaining scientific uncertainty concerning black carbon’s warming impact and the question of quantifying the climate impact of black carbon mitigation measures. At present, there is no ‘scientific consensus on appropriate metrics to equate’ the climate impact of CO2 and black carbon, and ‘this should be noted explicitly in the NDC. Accordingly, black carbon targets should be in mass units, not in [CO2 equivalent] units’.82 These technicalities aside, the obvious benefit of using the Paris Agreement’s mitigation regime to strengthen action on black carbon is that it can be done within an already existing regulatory framework without changing any of the incumbent rules. What is more, this regulatory framework is, in theory, global in its reach. While the US has expressed its intention to withdraw from the Paris Agreement, Russia ratified the Agreement in September 2019 and it currently includes all the key Arctic and non-Arctic states, thereby providing a useful opportunity to engage them by voluntarily listing a black carbon target in their NDCs.

Ross and others (n 41) 11. Ibid. 79 Ibid. 80 Ibid 28. 81 Ibid 27. 82 Ibid. 77 78

30  Research handbook on transnational environmental law

4

CONCLUSION: STRENGTHENING TRANSNATIONAL LEGAL ORDERS FOR BETTER BLACK CARBON MITIGATION IN THE ARCTIC

The analysis of the current regulatory landscape and options to strengthen the regulation of black carbon emissions for the benefit of the Arctic has shown that international law in the traditional sense leaves some important regulatory gaps both with respect to black carbon mitigation and reporting, and the example of the Gothenburg Protocol exemplifies the limitations of additional legislative texts. However, adopting a broader perspective informed by TEL results in a more colourful picture of the regulatory landscape and reveals more opportunities to strengthen it. A perspective informed by TEL scholarship reveals not only a richer variety of potential sites of action, but also interesting informal links and interactions between them. Indeed, the analysis in Section 3 shows that the global regulatory framework for black carbon emissions has evolved through gradual and parallel, partly interlinked steps in different forums, against the backdrop of informal collaboration by various state and non-state actors. The first impetus for stronger action on black carbon came from scientific and technical work by UNEP, the CCAC and the Arctic Council nearly a decade ago.83 The idea of stronger black carbon mitigation was then taken up by a relatively small group of states and non-state actors under the Arctic Council. It gradually evolved into a voluntary undertaking to strengthen national action and provide black carbon inventories, underpinned by the hope of gradually engaging the Council’s observer states whose black carbon emissions are having an important impact on the Arctic environment. As seen above, there has already been some success in this respect given that most of the Arctic Council observer states have reported their black carbon emissions to the Council. Subsequently, the Arctic states set themselves a voluntary and collective emissions reduction target for black carbon. Parallel work by the CCAC has increased global awareness of the SLCP mitigation agenda. It has paved the way to more widespread action on black carbon, inter alia, through the inclusion of black carbon mitigation targets or policies in countries’ NDCs under the Paris Agreement. Given the cyclical nature of the Paris Agreement, this opportunity to engage a growing number of countries in black carbon mitigation efforts keeps repeating itself at five-year intervals. Overall, the experience gained thus far seems to highlight the benefits of using multiple forums in parallel to advance the same regulatory goal, and engaging different actors and forums in technical and scientific collaboration that advances different actors’ understanding of what is required to mitigate black carbon emissions and how this could potentially be achieved. This conclusion, then, seems consistent with the growing literature on polycentric climate change governance.84 One of the key insights there is that global solutions to climate

83 See United Nations Environment Programme (UNEP), Near-Term Climate Protection and Clean Air Benefits: Actions for Controlling Short-Lived Climate Forcers (UNEP 2011); UNEP and World Meteorological Organization, Integrated Assessment of Black Carbon and Tropospheric Ozone: Summary for Decision Makers (UNEP/WMO 2011); Arctic Monitoring and Assessment Programme (AMAP), Summary for Policy-Makers Arctic Climate Issues 2015 (AMAP 2015). 84 E. Ostrom, ‘A Polycentric Approach for Coping with Climate Change’ (2014) 15 Annals of Economics and Finance, 97; A. Jordan and others (eds), Governing Climate Change: Polycentricity in Action? (Cambridge University Press 2018).

Exploring transnational legal orders  31 change, negotiated at the global level, are difficult to achieve and, even if in place, are not guaranteed to work well unless backed up by a variety of efforts at national, regional and local levels.85 Hence Ostrom’s caution that ‘simply recommending a single governmental unit to solve global collective action problems—because of global impacts—needs to be seriously rethought and the important role of smaller-scale effects recognized’.86 Similarly here, the recommendation is not to look for a single solution through a single MEA or MEA amendment, but to continue working through both the Paris Agreement and the Gothenburg Protocol, as well as the Arctic Council and CCAC. To be sure, the broadening of legal horizons towards non-state actors and informal law raises several important question marks, not least with respect to the legitimacy and accountability of the more informal modes of cooperation and regulation. Indeed, as Pauwelyn, Wessel and Wouters have pointed out, ‘it is not because something is not legally binding under international law that it does not affect public policy-making or individual freedom’.87 Hence, important questions concerning legitimacy and accountability rise from the recommendations made here. Answering them falls, however, outside the scope of this chapter, which has sought to illustrate the usefulness of TEL scholarship as an analytical framework for identifying options to strengthen the regulation of global black carbon emissions affecting the Arctic. While one of the motivations here has been the desire to understand what this broader landscape looks like and how it works, the decision to venture outside the realm of conventional legal research also draws support from the urgency of the policy problem at hand. As Heyvaert has indicated: … a decision not to engage with the regulatory character of transnational arrangements arguably represents a missed opportunity to lend structure and support to innovative attempts at public interest regulation. Considering the gaping chasm between the scope and pace of, for instance, ‘traditional’ climate change regulation and the extent of intervention required to achieve sustainable climate targets, such opportunities may be too costly to miss.88

Similar excursions questioning the dominant state-focused paradigm are underway also in other disciplines, including ongoing work by political scientists on polycentric climate governance. Like the current exercise, research into polycentric climate governance has drawn inspiration from the realization that a growing amount of governance activity falls below the radar of traditional international, state-led diplomacy, and such activity is in fact starting to have a discernible impact on the legal and governance landscape around climate change. Indeed, while there seems to be only very limited hope of strengthening the global regulation of black carbon through international law in the traditional sense, there are several interesting and politically more feasible opportunities to do so through the various transnational legal orders studied here.

Ostrom (n 84) 99. Ibid 121. 87 Pauwelyn, Wessel and Wouters (n 8) 746. 88 Heyvaert (n 6) 200. 85 86

3. An unknown past, an unequal present, and an uncertain future: transnational environmental law through three research challenges Natasha Affolder

1

INTRODUCTION: TRANSNATIONAL ENVIRONMENTAL LAW AS A VISUAL FIELD

The ecological overshoot of humanity requires us to both zoom into the details of intrahuman injustice – otherwise we do not see the suffering of many humans – and to zoom out of that history, or else we do not see the suffering of other species and, in a manner of speaking, of the planet.1

Transnational law offers a particularly rich opportunity for zooming in and zooming out. While functioning as a methodology, a discourse and a field of substantive law,2 transnational law brings particular dimensions, sites and processes of environmental law and lawmaking into view. Approaching transnational law as a vision field does not downgrade the role of its practitioners and scholars to the status of observers. Rather, transnational law encompasses a project of changing the world by changing dominant ideas about it. Transnational law has long been seen to function as a mechanism for illuminating particular spaces. Such spaces include the empty space left by existing doctrinal perspectives,3 and the particular relationships between, around and outside national laws.4 It offers a way of looking at and for law that is alert to spheres of normativity different from the nation state, or that involves distinct ways of conceiving of the nation state. It highlights private actors and the power and powerlessness of those actors, informal law and seemingly informal relationships that may defy traditional assumptions of the legal, and movements of law and legal process that may resist geopolitical assumptions about the globe’s centre and its peripheries.5 The ‘transnational’ may import a visual field that brings into view each of the above-identified issues. But it may also obscure dimensions of law’s relationships with both humans and nature.6 This is because the spaces and rhythms of transnationalism favour a visual fix on processes, flows, networks, and governance arrangements that may be only partially tethered to 1 D. Chakrabarty, ‘Whose Anthropocene? A Response’ in R. Emmett and T. Lekan (eds), Whose Anthropocene? Revisiting Dipesh Chakrabarty’s ‘Four Theses’ (Rachel Carson Center 2015) 111. 2 See V. Heyvaert and L.-A. Duvic-Paoli, Chapter 1 of this book. 3 G.-P. Calliess and P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Cambridge University Press 2010) 11. 4 P. Zumbansen, ‘Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism’ (2012) 21 Transnational Law & Contemporary Problems 305, 307. 5 On this context, see H. Muir Watt, ‘The Relevance of Private International Law to the Global Governance Debate’ in H. Muir Watt and D. Fernández-Arroyo (eds), Private International Law and Global Governance (Oxford University Press 2014). 6 On some little-explored costs associated with the shift to the transnational in feminist legal theory, see M. Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Routledge 2015) 104.

32

An unknown past, an unequal present, and an uncertain future  33 people.7 A transnational lens may thus write specific people and particular understandings of nature out of law’s past, present, and future.8 Thinking about the research challenges posed by a transnational law lens encourages large questions of ‘stocktaking’ such as these, but it also invites critical attention to the particular registers on which transnational legal conversations are not proceeding.9 A key tension for transnational law indeed emerges from how it navigates between universalist agendas, principles, and prescriptions and the specific and context-based realities of individual places and people brought into view in particular by historians and post-colonial scholars. Transnational law comes to the task of illuminating environmental problems and prescribing solutions with some heavy weight on its shoulders. The enormous and existential threats of environmental and climate ruin – threats which have prompted shifts in the language used to describe current environmental crises10 – combine with a widely shared view that national and international law have failed and are failing to address these crises.11 Moreover, the concept of the Anthropocene effectively rips to shreds many of the analytical categories that have served as frames for much thinking about both the environment and law since the Enlightenment. While social theorists are dismantling the intellectual walls that separate human society from non-human nature, the geological and generational, the local and global, and science from politics, an appreciation of these same cleavages is critical to understanding transnational law’s history and epistemology.12 This chapter seeks to bring into focus three broad research challenges facing transnational environmental law – an unknown past, an unequal present, and an uncertain future. It does so with conviction that the field has an untapped potential to contribute far more significantly to both shaping and elucidating some of the major intellectual debates of our time. What a richer and more plural sense of ‘the environment’ or ‘environmentalisms’ rooted in the past and in diverse cultural settings might make room for is an understanding that environmental values do not need to be singular or universal to be powerful.13

Ibid 106. A deeper exploration of this theme can be found in N. Affolder, ‘Transnational Environmental Law’s Missing People’ (2019) 8(3) Transnational Environmental Law 463. 9 V. Heyvaert powerfully conveys how the transnational involves shifts in both perception and reality: ‘Understanding social transformations as a tight entanglement of shifts in reality and perception is important because it reminds us that, as the spotlight moves on, structures that are now in the penumbra do not cease to exist and continue to merit scholarly attention.’ V. Heyvaert, Transnational Environmental Regulation and Governance: Purpose, Strategies and Principles (Cambridge University Press 2019) 1, 5. 10 D. Carrington, ‘Why the Guardian Is Changing the Language It Uses about the Environment’ The Guardian (London, 17 May 2019): www​.theguardian​.com/​environment/​2019/​may/​17/​why​-the​-guardian​ -is​-changing​-the​-language​-it​-uses​-about​-the​-environment, accessed 7 June 2019 (‘Instead of “climate change” the preferred terms are “climate emergency, crisis or breakdown” and “global heating” is favoured over “global warming”’). 11 T. Stephens, ‘What Is the Point of International Environmental Law Scholarship in the Anthropocene?’ in O. Pedersen (ed.), Perspectives on Environmental Law Scholarship (Cambridge University Press 2018). 12 P. Selcer expresses this as the need to acknowledge ‘antiecological environmental history’. P. Selcer, The Postwar Origins of the Global Environment: How the United Nations Built Spaceship Earth (Columbia 2018) 11. 13 Ibid 5. 7 8

34  Research handbook on transnational environmental law

2

AN UNKNOWN PAST

The claim that transnational environmental law is characterized by ‘an unknown past’ is admittedly an exaggeration,14 but it serves to force attention to the relative lack of historicity in transnational environmental law analysis. In this section, I explore three particular dimensions of transnational law’s patchy and uneven historical engagement. The first such dimension emerges in the form of the ‘faceless transnational’ – the adoption of scales and units of analysis that delink humans from legal processes. Secondly, historicizing transnational law requires a deeper appreciation of why it matters that law developed out of a world view that contemplated the non-human environment as a resource for human exploitation. And finally, an appreciation of the historical underpinnings of transnational environmental law reveals the co-existence of a plurality of environmentalisms. This poses a challenge to the idea that environmentalism is a singular concept or construct that appeared seemingly out of the blue at a particular time (the 1960s) and in a specific place (the West Coast of the United States (US)) to challenge free market ideologies. Transnational law has the ability to make room for a more eclectic, postmodern and conflict-ridden conception of the ‘environment’. This in part will come from a robust engagement with history.15 The denial of history, and the refusal to look back, help produce a situation where environmental degradation can be seen as a historical accident, or rotten bad luck, rather than as the product of human choices.16 2.1

The Faceless Transnational

The temporal vision of liberal legalism neatly coincides with a transnational lens.17 Mariana Valverde locates the temporality of the transnational in its particular ability to combine presentism with a sort of short-term futurism that shifts our gaze towards the abstract, including the non-subjective and non-human scales that measure the flows, assemblages, and networks of transnational law. The transnational lens might be responsible for the select vision of legal processes that emerges from looking for law only in the temporally impoverished narratives of universalism, in the institution of abstract rights and in accounts that favour ‘disembodied legal subjects’.18 These concerns provide inspiration for approaching transnational law in ways that qualify and individualize the subjects which commonly form part of abstract-leaning For exceptions to a general lack of historicity in transnational environmental law scholarship, see e.g., P.H. Sand, ‘The Evolution of Transnational Environmental Law: Four Cases in Historical Perspective’ (2012) 1(1) Transnational Environmental Law 183; P.H. Sand (ed.), The History and Origin of International Environmental Law (Edward Elgar 2015); S. Humphreys and Y. Otomo, ‘Theorising International Environmental Law’ in F. Hoffmann and A. Orford (eds), The Oxford Handbook of International Legal Theory (Oxford University Press 2016). 15 The value of a historical lens is well evidenced by L.-A. Duvic-Paoli’s expansive work on the legal foundations of the prevention principle. She shows why the intellectual grounding of the concept of prevention, not in environmental philosophy, but rather in sovereignty, was critical to the pragmatic success of this principle. L.-A. Duvic-Paoli, The Prevention Principle in International Environmental Law (Cambridge University Press 2018) 18. 16 S. Humphreys, ‘Climate Justice: The Claim of the Past’ (2014) 5 Journal of Human Rights and the Environment 134. 17 M. Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Routledge 2015) 109. 18 Ibid 109–10. 14

An unknown past, an unequal present, and an uncertain future  35 studies of corporations and corporate social responsibility, networks, global value chains, and legal processes. They support a case for writing the sort of histories of the longue durée that are both challenging to write and instructive to read.19 Studying the long-term origins of environmentalism, for example, could enrich transnational environmental law by creating a valuable and plural sense of its biases, blind spots and fundamental assumptions. Scholarship that seeks an understanding of climate crises from study of the very distant past illuminates how it may be a trait of only present-day environmental regulation to look to economists to define the universalizing models that will shape our future.20 Moving beyond ‘post-war presentism’ as the time period relevant to transnational legal inquiries can open many new agendas for research.21 These can supplement the valuable historical work that already situates environmental law and environmentalism alongside colonialism22 to illuminate other historical processes and broader intersectional fields of power shaping law as we know it.23 One such promising direction of historical inquiry illuminates the norm makers falling outside traditional Global North-centred histories of international environmental law. Amitav Acharya thus redirects focus towards the creators of international human rights norms at the Asian–African Conference in Bandung.24 Peter Onyango turns to customary legal norms as a promising source of renewal for law reform initiatives in Africa.25 Godwin Dzah seeks to ‘emancipate’ an African concept of environmental rights from universal rights discourse by drawing attention to African legal theorists and sources of law neglected in universal histories.26 These works complement those international law histories that challenge the idea that Westphalia is the unquestioned starting point for the history of international law.27 And they

19 J. Guldi and D. Armitage make a convincing case for the need for longer-term historical narratives of the environment. J. Guldi and D. Armitage, The History Manifesto (Cambridge University Press 2014) 14–15. 20 Ibid. 21 The sort of paradigm-shifting thinking prompted by histories of the longue durée make this quickly evident. See e.g., J.R. McNeill, ‘Global Environmental History: The First 150,000 Years’ in J.R. McNeill and E. Stewart Mauldin (eds) A Companion to Global Environmental History (Blackwell 2012). 22 R. Grove, Green Imperialism: Colonial Expansion, Tropical Island Edens and the Origins of Environmentalism, 1600–1860 (Cambridge University Press 1995); T. Griffiths and L. Robin (eds), Ecology and Empire: Environmental History of Settler Societies (Keele University Press 1997); J. Broich, ‘British Water Policy in Mandate Palestine: Environmental Orientalism and Social Transformation’ (2013) 19(3) Environment and History 255. 23 Advancing the argument that ‘we are all differently situated and governed, in both constraining and enabling ways, in relationships of division, patriarchy, imperialism, racism, capitalism, ecological devastation, and poverty’ and thus that ‘the failure to illuminate broader and more complex intersectional fields of power was one reason why the colonization/decolonization binary did not lead the way to Third World liberation’, see J. Borrows and J. Tully, ‘Introduction’ in M. Asch, J. Borrows and J. Tully (eds), Resurgence and Reconciliation: Indigenous–Settler Relations and Earth Teachings (University of Toronto Press 2018) 7. 24 A. Acharya, ‘Who Are the Norm Makers: The Asian–African Conference in Bandung and the Evolution of Norms’ (2014) 20 Global Governance 405, 407. 25 P. Onyango, African Customary Law System: An Introduction (Law Africa Publishing 2013) 7. 26 G. Dzah, ‘Theorizing the Right to Environment: An Africological Typology’ (2019) 27(1) African Journal of International and Comparative Law 25. 27 R. Kolb, Esquisse d’un droit international public des anciennes cultures extra européennes (Pedone 2010).

36  Research handbook on transnational environmental law extend the effort to include ‘excluded voices’ in histories of global lawmaking, including those from non-legal disciplines.28 Efforts to understand the intellectual origins of environmental law ideas in countries of the Global North are equally valuable to transnational environmental law scholarship that seeks to understand the genesis of environmental ideas across borders, and the entanglement of these ideas in law. Jedediah Purdy’s After Nature: A Politics for the Anthropocene traces distinct versions of the environmental imagination – a providential vision, a romantic vision, a utilitarian picture and an ecological world view – through laws in the United States ‘that channelled human energy to shape the world’.29 Purdy’s intellectual history of the natural world in the US is thus very much a political history of ideas in that country. And it is a history that is understood through law and through particular people who shaped that law. As he explains: Ways of valuing and inhabiting the natural world have been woven together from the material stuff of land and resources and from the imaginative devices of religion, aesthetics, and rhetoric. Law is the warp and weft that binds the two, shaping the material landscape, guiding human action on it, translating the ideal images of people and nature into concrete regimes of power.30

Other examples of historical work place the spotlight firmly on individuals. Raf de Bont highlights the role of individual scientists, life scientists and library intellectuals, and experts present at early 20th century conservation conferences.31 Luigi Piccioni explores the Catholic Church’s stance towards the early environmental movement, a rare perspective on a neglected but important actor in environmental thought.32 Moving beyond human histories, scholars such as Lauren Benton offer quasi-ethnographic accounts of the lives of particular geographical features such as rivers, islands and mountain ranges to illuminate how physical space and cultural imagination interact.33 New histories of transnational legal processes will continue to upset present-day understandings of the forces shaping environmental law. This can be witnessed up close in scholarship unpacking the complex relationship between environmental regulation and legal liberalism. Efforts to expose modern liberalism’s role in protecting capitalism from democracy call into question received wisdom on neoliberal nature and the institutions which law has forged to protect markets.34 Legal history offers a battleground for challenging assumed narratives of how and why laws for environmental protection have developed and moved 28 M. Koskenniemi, ‘Law of Nations and the Conflict of the Faculties’ (2018) 8 History of the Present: A Journal of Critical History 4. 29 J. Purdy, After Nature: A Politics for the Anthropocene (Harvard University Press 2015) 8. 30 Ibid 229. 31 R. de Bont and G. Vanpaemel, ‘Editorial Introduction to Special Section, “The Scientist as Activist: Biology and the Nature Protection Movement, 1900–1950”’ (2012) 18(2) Environment and History 203; R. de Bont and R. Heynickx, ‘Landscapes of Nostalgia: Life Scientists and Literary Intellectuals Protecting Belgium’s “Wilderness”, 1900–1940’ (2012) 18(2) Environment and History 237. 32 L. Piccioni, ‘Only One Earth: The Holy See and Ecology’ in J.-H. Meyer and W. Kaiser (eds), International Organizations and Environmental Protection: Conservation and Globalization in the Twentieth Century (Berghahn Books 2017). 33 L. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge University Press 2009). 34 Q. Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press 2018).

An unknown past, an unequal present, and an uncertain future  37 across borders.35 Post-colonial critique, in particular, challenges the quiet universalization of environmental law’s movements across time and space, illuminating the particularity and historicity of human experience and the importance of the past for understanding the ‘here and now of Western law’.36 2.2

A Resource Ripe for the Taking: the Enduring Legacy of Law’s Greedy Gaze

The vision of nature as something to be exploited for human use can be traced through international law’s development to contemporary contexts where the transnational gaze often focuses.37 Quinn Slobodian’s history of neoliberalism, for example, documents the resilience of a world view that perceives ‘the earth as a vast territory of varying natural endowments that needed to be exploited as thoroughly as possible through the mobility of capital, labor, and commerce’.38 This ‘severance’ model, which distances the concept of the human world from the natural world, directly traces to European romanticism.39 It is a view that continues to inform a present-day environmental agenda established by and around the priorities and concerns of affluent countries.40 Studying how concepts of the environment evolved within non-European thought and outside the tradition of Enlightenment humanism reveals alternative visions to the severance model.41 It is here that the points of connection between a reductionist and commodified view of the environment that emphasizes human separateness from and superiority over nature and the gaps and black holes surrounding non-Western contributions to international environmental law slowly materialize.42 Through such connections it becomes possible to locate the foundations of an environmental ethic that departs from the dominant conceptions of nature underlying Western law.43

35 On the battle lines of such debates, see D. Campbell and J. Hyun Pyun, ‘The Diffusion of Development: Along Genetic or Geographic Lines’ (2017) 29 Journal of International Development 198. 36 For an exploration of transnational law’s place in post-colonial theory, see P. Zumbansen, ‘Can Transnational Law Be Critical? Reflections on a Contested Idea, Field and Method’ in E. Christodoulidis (ed.) Research Handbook on Critical International Theory (2020, forthcoming); on environmental literatures, see E. DeLoughrey and G. Handley, Postcolonial Ecologies: Literatures of the Environment (Oxford University Press 2011). 37 On the embedding of such a view of nature in the legal concept of territory, see K. Mickelson, ‘The Maps of International Law: Perceptions of Nature in the Classification of Territory’ (2014) 27 Leiden Journal of International Law 621, 639. See also K. Khoday and others, ‘Locating Nature: Making and Unmaking International Law: Introduction’ (2014) 27 Leiden Journal of International Law 571; Humphreys and Otomo (n 14). 38 Slobodian (n 34) 107. 39 See Humphreys and Otomo (n 14). 40 See Shawkat Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 2. 41 C. Storr, ‘Islands and the South: Framing the Relationship between International Law and Environmental Crisis’ (2016) 27(2) European Journal of International Law 519. 42 M. Craven, ‘Theorising the Turn to History in International Law’ in A. Orford and F. Hoffmann (eds), The Oxford Handbook of the Theory of International Law (Oxford University Press 2016) 22; W. Twining (ed.), Human Rights, Southern Voices: Francis Deng, Abdullahi An-Na’im, Yash Ghai and Upendra Baxi (Cambridge University Press 2009). 43 This involves challenging dominant terminologies and binary world views. Indigenous law scholars are using the vocabularies of reconciliation and resurgence, for example, as ‘appropriate English

38  Research handbook on transnational environmental law African scholars, for example, have drawn attention to the pre-colonial period and prevailing conceptions of environmental ethics to draw out the significant communal dimensions of environmental practices.44 Part of this environmental ethic translated into careful natural resource use practices that fail to easily translate into Western law. For example, in pre-colonial Akan and Ewe communities (present-day Ghana) there was a non-farming day in each week. No one was allowed to go to the farm on these days. The rationale was to allow mother Earth to rest. A similar rule was applicable to fishing communities.45 Totemism, a central feature of African religious practice, also ensured that certain animals and plants were not hunted. Anyone who flouted these socially accepted rules risked grave punishments including being banished from the community.46 Knowledge of these practices and beliefs helps dismantle the idea of a singular and universal ‘environmentalism’ informing the legal order’s engagement with environmental protection,47 just as it challenges the assumption that it is ‘the state’ that will necessarily administer such a legal order.48 The climate crisis is prompting a new willingness to look to alternative places and spaces of ‘environmental’ governance, past and present, for the possibility that they might offer scientists, policymakers and lawyers working on the ground new inspiration of where to look for possible futures.49 2.3

The Co-existence of Plural Environmentalisms

Many histories of environmental law pivot around an unchallenged assumption that the environmental issues of concern to transnational processes appear seemingly out of the blue in the 1960s to suddenly challenge the ascendant economic logic of the free marketplace.50 Powerful creation myths thereby locate environmental law’s origins in the context of the rise

terms for the unique, place-based, kin-centric and relational ways Indigenous people conceive and enact transformative change, at least in comparison to Western theories of colonization/decolonization’. J. Borrows and J. Tully, ‘Introduction’ in M. Asch, J. Borrows and J. Tully (eds), Resurgence and Reconciliation: Indigenous–Settler Relations and Earth Teachings (University of Toronto Press 2018) 7. 44 S. Gumo and others, ‘Communicating African Spirituality through Ecology: Challenges and Prospects for the 21st Century History of the African Ministerial Conference on the Environment’ (2012) 3(2) Religions 523. 45 I thank G. Dzah for these reflections and insights on practices in pre-colonial Ghana. 46 C.V.O. Eneji and others, ‘Traditional African Religion in Natural Resource Conservation in Cross River State, Nigeria’ (2012) 4(2) Environment and Natural Resources Research 45; F. Diawuo and A.K. Issifu, ‘Exploring the Traditional Belief Systems in Natural Resources Management in Ghana’ (2015) 9(8) The Journal of Pan African Studies 115. 47 Agrarianism provides another example of an alternate vantage point for understanding environmental sustainability. See P.B. Thompson, The Agrarian Vision: Sustainability and Environmental Ethics (University Press of Kentucky 2010). 48 ‘There are fundamental defects in presenting the state as the reservoir of cultural heritage. Many states have been alien to their populations and it is questionable whether they represent those populations or whether they are little more than internationally recognized cartels for the sake of maintaining power and access to resources.’ M. wa Mutua, ‘Politics and Human Rights: An Essential Symbiosis’ in M. Byers (ed.) The Role of Law in International Politics (Oxford University Press 2000) 166–7. 49 See Guldi and Armitage (n 19) 66–71. 50 See e.g., Z. Plater, ‘From the Beginning, a Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law’ (1994) 27 Loyola of Los Angeles Law Review 981.

An unknown past, an unequal present, and an uncertain future  39 of a particular environmentalism on the West Coast campuses of the US, energized by the 1962 publication of Rachel Carson’s Silent Spring and the first Earth Day on 22 April 1970.51 The point here is not one of contesting the starting point of the ‘period’ of modern environmentalisms, nor is it to deny the absolutely fundamental importance of the US-based environmental movement and the ideas of particular American environmentalists to the spread of environmental ideas transnationally.52 Rather, it is the very practice of periodization in the history of transnational law ideas that demands critical attention: ‘periodization is inevitable, but never innocent’.53 Accounts of modern environmentalism and its spread tend to quietly universalize a particular version of environmental protection, assuming a temporal starting point in the 1960s and a geographical birthplace in the United States. Along with greater scientific awareness of the negative long-term consequences of human activity, this environmentalism was undoubtedly a force that gave momentum to the development of much US domestic and modern international environmental law. Yet, starting the history of transnational legal processes at the point when or immediately before such law appears overlooks the existence of longer patterns of human–nature relations of transnational legal significance. Indeed, several historians are working to correct this oversight by producing longue durée histories revealing other environmentalisms emerging from how different cultures have perceived and interacted with nature, and by acknowledging the deeper cultural foundations of the environmentalist movement that began in the 1960s in the US.54 Historians are thus working to identify other periods and sites of foundational transnational environmental lawmaking. This work involves illuminating the place of environmental ideas prior to the 1972 United Nations Stockholm Conference on the Human Environment, the first intergovernmental conference to focus on environmental problems. Iris Borowy thus examines who was in charge ‘of the global environment’ in the years before this conference.55 Paul Sabin illuminates the concept of environmental law in the interwar period through a study of early environmentalist legal organizations.56 Perrin Selcer traces how the United Nations constructed the idea of a ‘global’ environment requiring protection.57 Such attempts to acknowledge the existence of other starting points for investigating transnational environmental law’s birth, and indeed of other intellectual inspirations for global

51 F. Locher and G. Quenet, ‘L’histoire environnementale: origines, enjeux et perspectives d’un nouveau chantier historique’ (2009) 56(4) Revue d’histoire moderne et contemporaine 7. 52 R. Blomquist outlines the role of individual scholars, writers and government figures in shaping American environmental law from 1960 to 1990. R. Blomquist, ‘Clean New World: Toward an Intellectual History of American Environmental Law, 1961–1990’ (1990) 25 Valparaiso University Law Review 1. 53 T. Ruskola, ‘Raping Like a State’ (2010) 57 UCLA Law Review 1477, 1485. For an excellent discussion of the overlooked role that periodization plays in the history of international law, see I. De La Rasilla, ‘The Problem of Periodization in the History of International Law’ (2019) 37(1) Law and History Review 275. 54 See e.g., P.A. Coates, Nature: Western Attitudes since Ancient Times (University of California Press 1998); W.M. Adams, Against Extinction: The Story of Conservation (Earthscan 2004); Grove (n 22). 55 I. Borowy, ‘Before UNEP: Who Was in Charge of the Global Environment? The Struggle for Institutional Responsibility 1968–1972’ (2019) 14(1) Journal of Global History 87. 56 P. Sabin, ‘Environmental Law and the End of the New Deal Order’ (2015) 33(4) Law and History Review 965. 57 Selcer (n 12).

40  Research handbook on transnational environmental law environmental protection, run parallel to historical work challenging the thesis that the US invented the concept of the environment, and hence environmental history.58 This thesis is, and was, contested but has been influential in encouraging a purposeful transnationalization of environmental history scholarship.59 Some of the early pushbacks to an American wilderness-centred environmental history come from scholars protesting a universal view of environmentalism tracing to US ‘wilderness’ concepts, and from those rejecting a mythical construction of ‘oriental’ values as being more respectful of nature.60 Tackling acultural approaches to environmentalism, Simon Avenell theorizes environmental activism in Japan within a framework of environmental issues at the intersection of Japanese and global imaginaries of identity and nature.61 Even as it is contested, a particular vision of environmentalism that traces back to a popular US-based social movement in the 1960s has served as an irritant transnationally, as it has framed environmental protection as a problem of the rich. This has led to a recasting of the ‘environmental’ concerns of the Global South as the substance of other disciplines, such as development law, natural resources law or sustainable development law. As Camena Guneratne argues, concurrent with the Brundtland Commission Report, ‘developing countries were grappling with issues that were generally omitted from the sustainable development discourse, including problems of extreme poverty, vertical and horizontal inequity, conflict over the possession and use of natural resources and a disadvantageous international economic order’.62 A question that transnational legal scholars cannot escape is how is it that issues of drastically inequitable resource use and extreme poverty were not conceived of as core concerns of environmental law. Bruno Latour’s Down to Earth: Politics in the New Climatic Regime draws attention to the last century’s social movements’ massive and profound failure to connect the dots between ‘social’ and ‘environmental’ conflicts.63 Transnational legal scholarship has some work to do tracing, and indeed explaining, the legal transformations that did not take place. The non-occurrence of transformative environmental law may indeed be one of the consequences of leaving unchallenged a particular and dominant vision of environmentalism, one that separates the environment from the social. Studying the past goes some way to reminding us that separations between human inequality and environmental quality may be quite recent.

See Locher and Quenet (n 51). See D. Worster, ‘World without Borders: The Internationalizing of Environmental History’ (1982) 6(2) Environmental Review 8. 60 See e.g., R. Guha, ‘Radical American Environmentalism and Wilderness Preservation: A Third World Critique’ (1989) 11 Environmental Ethics 71. The latter objection traces to the significant controversy surrounding Lynn White’s 1967 public address, reproduced in Science, asserting that Christianity ‘bears a huge burden of guilt for the devastation of nature in which the West has been engaged for centuries’. L. White Jr, ‘The Historical Roots of Our Ecological Crisis’ (1967) 155 Science 1203. 61 S. Avenell, Transnational Japan in the Global Environmental Movement (University of Hawaii Press 2017). 62 C. Guneratne, ‘Environmental Law Scholarship in a Developing Country – An Alternative Discourse’ in O. Pedersen (ed.), Perspectives on Environmental Law Scholarship (Cambridge University Press 2018) 182. 63 B. Latour, Down to Earth: Politics in the New Climatic Regime (Catherine Porter trans., Polity 2018) 56–8. 58 59

An unknown past, an unequal present, and an uncertain future  41

3

AN UNEQUAL PRESENT

The massive inequality of our time is now the subject of serious and sustained scholarly inquiry.64 New scholarship on human rights, such as Samuel Moyn’s second major commentary on the subject, Human Rights in an Unequal World, asks why ‘we chose to make human rights our highest ideals while simultaneously neglecting the demands of a broader social and economic justice’.65 This work keeps its gaze firmly attached to the injustices of the human world. In the same way, powerful social histories that seek historical explanation of the ‘vast wealth and disturbing inequalities that are with us today’ are written as stories of capital and labour.66 The relationships of inequality between humans and the natural world do not feature in these works. Yet research attentive to the multidirectional relationship between human suffering and environmental suffering, social justice and environmental justice, might help us connect some dots. 3.1

Breaking Down the Social vs Environmental Barricade

The relationship between social and economic inequality and environmental law is of interest far beyond law, but law’s multiple and conflicting roles in this relationship speak powerfully to the sort of environmental law that is being created and whom it might serve. How transnational environmental law navigates issues of inequity and social inclusion, and its potential complicity in developing, finetuning and disseminating legal tools that perpetuate inequalities, will be defining issues for the field.67 These issues are being played out in real time in debates and practices, including those surrounding REDD+ and its geographic dislocation of the burden of addressing global warming to the forested countries of the Global South.68 REDD+ focuses attention on the significant challenge for transnational environmental law of responding to the reality that environmental law ‘solutions’ involve and impact humans, impact them differentially in different places, and can be at odds with indigenous conceptions of rights and obligations to land and waters.69 REDD+ has mobilized alternative frameworks that are sensitive to local culture and traditional knowledge.70 It marks one of the few terri-

T. Pikkety, Capital in the Twenty-First Century (Harvard University Press 2013); A. Gopnik, A Thousand Small Sanities: The Moral Adventure of Liberalism (Basic Books 2019); S. Moyn, Not Enough: Human Rights in an Unequal World (Harvard University Press 2018); Slobodian (n 34). 65 Moyn (n 64), quotation from book jacket. 66 These themes are not brought to life by S. Beckert but emerge from reading this work through a transnational legal lens. S. Beckert, Empire of Cotton: A Global History (Vintage 2015). 67 For thoughtful work on the nature of complicity, see J. Scott, ‘The Global Reach of EU Law’ in M. Cremona and J. Scott (eds), EU Law beyond EU Borders: The Extraterritorial Reach of EU Law (Oxford University Press 2019) 49–63. 68 J. Dehm, ‘Authorizing Appropriations: Law in Contested Forest Spaces’ (2017) 28(4) European Journal of International Law 1379, 1381. 69 K. Birrell, L. Godden and M. Tehan, ‘Climate Change and REDD+: Property as a Prism for Conceiving Indigenous Peoples’ Engagement’ (2012) 3 Journal of Human Rights and the Environment 196, 210. 70 For example, the Amazon Indigenous REDD+ (RIA) model emphasizes the role of indigenous people and their traditional knowledge in preserving forests and establishes an alternative public funding mechanism that does not depend on the international carbon credit market. R. Abate and E.A. Kronk, 64

42  Research handbook on transnational environmental law tories of transnational environmental encounters where the barricade between environmental and social issues is being effectively challenged and dismantled. In other venues, Oxfam’s work in mapping ‘extreme carbon inequality’ raises significant questions for legal scholars in confronting an era of inequality on previously unknown scales.71 The urgent need for an environmental law-centred research agenda on inequality further emerges out of the realization that, while notable research on national-level inequality is amassing, relatively little work has been done on how inequalities impact the biosphere.72 The relationship between inequality and environmental change is multi-scalar and multidimensional, as Maike Hamman and her co-authors demonstrate, linking gender inequality and the depletion of aquatic resources: In some parts of sub-Saharan Africa, for instance, where women generally have limited access to aquatic resources to begin with, increasing resource scarcity may not only reduce women’s income, but may also drive women to engage in ‘fish-for-sex’ transactions to secure a steady food supply for themselves and their families, which increases the incidence of sexually transmitted diseases such as HIV/AIDS. Furthermore, the burden of care for HIV/AIDS-affected adults, and those with other illnesses, usually lies with women, thus compounding their economic and educational marginalization as a result of changing environmental conditions.73

Thinking about how law fits into, and responds to, exactly this sort of challenge takes us back to the point that Philip Jessup was seeking to make in 1956 when he argued that a new term, and a new concept, was needed to ‘analyse the problems of the world community and the law regulating them’.74 3.2

Challenging Assumptions about How Law Moves

Philip Jessup’s insistence that judges and lawyers have access to a far-ranging and diverse toolkit for responding to transnational law problems aligns well with the context of contemporary environmental law research and practice.75 The demand for such a rich tool kit, or menu, of environmental law models, examples, arguments and forms of judicial reasoning means that the production and diffusion of environmental law ideas are central features of transnational environmental law practice and scholarship. Such transfers not only spread ideas and models across national borders but equally permeate supranational and sub-national lawmaking pro-

‘Commonality among Unique Indigenous Communities: An Introduction to Climate Change and Its Impacts on Indigenous Peoples’ (2013) 26 Tulane Environmental Law Journal 179, 187. 71 T. Gore, ‘Extreme Carbon Inequality’ (Oxfam International, 2 December 2015), www​-cdn​.oxfam​ .org/​s3fs​-public/​file​_attachments/​mb​-extreme​-carbon​-inequality​-021215​-en​.pdf. 72 M. Hamann and others, ‘Inequality and the Biosphere’ (2018) 43(1) Annual Review of Environment and Resources 61, 63. 73 Ibid 69. 74 P. Jessup, Transnational Law (Yale University Press, 1956) 1. 75 ‘Some rules are made by ecclesiastical authorities as in specifying times and manners of fasting. Some are made by corporations regulating their sales agencies … Other rules are made by secret societies, by towns, cities, states. Still others are made by international organizations such as the Coal and Steel Community, the International Monetary Fund … Nowadays it is neither novel nor heretical to call all of these rules “law”.’ Ibid 9.

An unknown past, an unequal present, and an uncertain future  43 cesses, private environmental governance, sites of indigenous lawmaking, legal cultures and traditions, judicial discourse and international organizational practice.76 The methods for measuring and tracking processes of legal transfer of environmental law ideas have neither kept up with the reality of these movements, nor have concepts evolved from the theory of ‘legal transplants’ to reflect the complex and multidirectional patterns of such movements. These movements do not uniformly lead in one direction – towards convergence around a universal model. Even when developments appear very unique and place-based, such as the emergence of constitutional rights in Ecuador drawing on indigenous cosmology, the narratives of transnational influence and transfer are never far behind.77 The uptake of models and inspiration from different places reveals another manifestation of ‘The Unequal Present’. Tracing the history of influence of two foundational climate change cases – Urgenda Foundation v State of the Netherlands78 and Leghari v Federation of Pakistan79 – provides a quick illustration of this point. While both cases have been labelled ‘ground-breaking’, and the Leghari case identified as ‘potentially more transformative than the decision in Urgenda’,80 the degree to which these cases have attracted ‘uptake’ and attracted calls for emulation from scholars, commentators, and the media, is starkly uneven.81 A reason why future work on the transfer of environmental law models and ideas may be pivotal for transnational legal scholarship more generally is that it signals a flashpoint for the wider tension between the urgent practical work of finding and forcing globally relevant legal solutions to environmental law problems and the profound, if still under-appreciated, links between law and culture.82 Understanding how law is linked to people and place is a subject of increasing research of critical interest to transnational environmental law. Attentiveness to the importance of legal culture spawns research into subjects ranging from the differential experience of the judicialization of politics,83 to the practical challenges of traditions of importing

76 This section draws on N. Affolder, ‘Contagious Environmental Lawmaking’ (2019) 31 Journal of Environmental Law 1, an article that sets out some of the methodological and terminological challenges to studying how environmental law ideas move. 77 M. Akchurin, ‘Constructing the Rights of Nature: Constitutional Reform, Mobilization, and Environmental Protection in Ecuador’ (2015) 40(4) Law & Society Inquiry 937. 78 Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689. 79 Leghari v Federation of Pakistan (2015) WP No. 25501/201. 80 J. Peel and H. Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2017) 7 Transnational Environmental Law 37, 52. 81 A few examples of the claimed influence of Urgenda on other climate lawsuits include litigation in Belgium, Switzerland and Ireland. The case has also had a tangible influence on the environmental advocacy community in Australia despite significant differences between Australian common law and Dutch civil law. J. Peel, H. Osofsky and A. Foerster, ‘Shaping the Next Generation of Climate Change Litigation in Australia’ (2017) 41 Melbourne University Law Review 793, 805. Calls for replication of the case frequently emerge from jurisdictions with little similarity to the Dutch legal system. See e.g., R. Cox, ‘A Climate Change Litigation Precedent: Urgenda Foundation v The State of the Netherlands’ (2016) 34(2) Journal of Energy & Natural Resources Law 143. In sharp contrast, and despite the groundbreaking aspects of the Leghari decision, that case has generated relatively little media attention and significantly fewer claims that it is a model ripe for replication than the ruling in Urgenda. 82 An inspiration for such work is E. Scotford’s writing on environmental principles, work that remains attentive to internal legal culture while canvassing the broader work that principles do. E. Scotford, Environmental Principles and the Evolution of Environmental Law (Hart 2017). 83 R. Sieder, L. Schjolden and A. Angell (eds), Judicialization of Politics in Latin America (Springer 2005).

44  Research handbook on transnational environmental law concepts, frameworks and vocabularies for assimilation and implementation.84 Methodology again becomes a critical aspect of this work. In the context of comparative constitutionalism, an area of significant current interest in environmental law scholarship, Peer Zumbansen suggests the need for constant vigilance to resist practices of referral to only the ‘usual suspects’ – including Canada, Israel, Germany, New Zealand, South Africa, the United Kingdom and the US.85 Approaching law as a product of specific peoples and specific places ultimately leads to the question: what might a culture-attentive version of transnational environmental law look like?86 The non-recognition of culture in global environmental law is perceived by some as part of a conscious attempt by internationalists to disregard it for the challenge it poses to the universalist agenda.87 Others draw attention to the particularities of legal culture in accounting for the success of strategic litigation that uses international law arguments.88 In a case study of litigation in Colombia brought by indigenous and black communities and their advocates to challenge the constitutionality of the General Forest Law, Daniel Maldonado argues that a close analysis of the particular legal culture of Colombia, including its transplant of ‘the block of constitutionality from France’, reveals why this litigation was able to succeed.89 Such a search to extract lessons of ‘what works’ from detailed place-based accounts of rare litigation successes finds powerful parallels in the uncertain future of climate litigation.90

4

AN UNCERTAIN FUTURE

One consequence of the considerable uncertainty about the future, and environmental law’s place in that future, is that current legal initiatives tend to be seen as experiments. Indeed, the current trend of portraying climate law as experimental is so ubiquitous as to avoid notice.91 An experimental approach to climate lawmaking is not irrelevant to transnational law because it institutionalizes a culture of cut, paste and copy. It facilitates the mentality of uncritical See C. Rodríguez-Garavito, 'Remapping Law and Society in Latin America: Visions and Topics for a New Legal Cartography', in C. Rodríguez-Garavito (ed.), Law and Society in Latin America: A New Map (Routledge 2015). 85 P. Zumbansen, ‘The Rule of Law, Legal Pluralism, and Challenges to a Western-Centric View: Some Very Preliminary Observations’ in C. May and A. Winchester (eds), Handbook of the Rule of Law (Edward Elgar 2018) 71. 86 For an important critique of the acultural foundations of private and public international law, see L. Cao, Culture in Law and Development (Oxford University Press 2016). 87 R. Mushkat, International Environmental Law and Asian Values: Legal Norms and Cultural Influences (UBC Press 2004) 3. 88 D. Bonilla Maldonado, ‘International Law, Cultural Diversity, and the Environment: The Case of the General Forest Law in Colombia’ in S. Alam and others (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 524. 89 Ibid 524. 90 See J. Peel and J. Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113(4) American Journal of International Law 679. 91 For example, the scientific language of experimentation has been applied to the US Clean Air Act, the Western Climate Initiative, the development of emissions trading in India, and the Paris Agreement. Not surprisingly, then, climate governance experimentation is a lens through which climate governance is being studied. See M. Hoffmann, Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press 2011) 17. 84

An unknown past, an unequal present, and an uncertain future  45 legal transfers that were the subject of discussion in the previous section of this chapter. Viewing legal developments through the clinical lens of ‘lab experiments’ may also foster an instrumental view of law and one that reduces legal practitioners and scholars to the role of technicians. Imagining a different role for legal scholars and practitioners is easy to do and comes to light through integrating theory and practice, policy and prescription. 4.1

Transnational Environmental Law and Affluence

In 2016 Oxfam reported in detail on why emissions from some countries were so much greater than others.92 Simply put, the problem is affluence. Excessive consumption means that the best-off in any country waste more energy, drive more than they need to, take more flights, and require more building materials.93 Thinking about affluence and its environmental effects leads to new frontiers for transnational legal research. It involves thinking about inequality not only in terms of geography, but across geographies, and the climate implications emerging from the fact that ‘there is a “North” in the “South” and a “South” in the “North”’.94 Pragmatically, it leads to proposals for linking responsibility for global warming and affluence through, for example, introducing taxes on business class seats to raise funds for climate adaptation, removing the considerable tax breaks given to private jets,95 and targeting ‘carbon majors’ for their role in profiting from global warming.96 It provides impetus to scholarly efforts to focus on the individual as a relevant unit for environmental law.97 Empirical research on global warming and research agendas on affluence force us to confront a question recently posed by Tim Stephens: given the twin facts that the goals of ‘traditional’ international environmental law (such as habitat protection in a ‘pristine’ state) may now be out of reach and the tools for reaching them (such as protected areas) ineffective or inadequate, is it time for new goals and new thinking?98 Are the ambitions of environmental law greater than environmental harm reduction? If so, what are they? 4.2

Earthly Life Confronts Transnational Legal Theory

The climate crisis is forcing lawyers to ask, even if they cannot answer, these sorts of uncharacteristically large and existential questions. Such questions come to the fore as the climate crisis signals, in Dipesh Chakrabarty’s words, ‘the first glimpse we may have of a possible D. Hardoon, S. Ayele and R. Fuentes-Nieva, ‘An Economy for the 1%’ (Oxfam International, 18 January 2016), www​-cdn​.oxfam​.org/​s3fs​-public/​file​_attachments/​bp210​-economy​-one​-percent​-tax​ -havens​-180116​-en​_0​.pdf. 93 See generally D. Dorling, The Equality Effect: Improving Life for Everyone (New Internationalist Publications Ltd 2016). 94 K. Mickelson, ‘Beyond a Politics of the Possible? South–North Relations and Climate Change’ (2009) 10 Melbourne Journal of International Law 411, 419. 95 See ‘Plane Stupid: Private Jets Receive Ludicrous Tax Breaks that Hurt the Environment’ (The Economist, 7 March 2019), www​.economist​.com/​leaders/​2019/​03/​07/​private​-jets​-receive​-ludicrous​-tax​ -breaks​-that​-hurt​-the​-environment. 96 K. Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmental Law 483, 490. 97 M. Vandenbergh and A. Steinemann, ‘The Carbon Neutral Individual’ (2007) 82 NYU Law Review 1673. 98 Stephens (n 11) 124. 92

46  Research handbook on transnational environmental law limit to our very human-centered thinking about justice, and thus to our political thought as well’.99 While transnational legal theory has done much to disrupt a view of law where all relevant actors, norms and processes trace to the nation state,100 it has yet to confront what Daniel Matthews labels globalization’s ‘dark side’: ‘the reality of a dramatically changing planet’.101 The extent of this challenge is still only hinted at by emerging literatures of the Anthropocene and by scholars taking first steps to understand the significance for law of moving away from a view of the ‘the world’ as something that humans simply inhabit and control.102 Peter Sloterdijk uses the label ‘background ontology’ to describe the deeply entrenched view of the place of humans in the cosmos underlying modern political thought: In this ontology, the human being plays the dramatic animal on stage before the backdrop of a mountain of nature, which can never be anything other than the inoperative scenery behind human operations. The thinking anchored in this backdrop ontology remains virulent long after the Industrial Revolution, even though it is now seen as an integrated depot of resources and a universal dump.103

David Wallace-Wells captures the same idea in a different way, reminding us that climate change transforms even the stories we tell about ourselves and nature: Parables are a teaching tool and work like glass dioramas in natural history museums: you pass by, you look, you believe that what is contained in the taxidermy scene has something to teach you – but only by the logic of the metaphor, because you are not a stuffed animal and do not live in the scene but beyond it, outside it, observing it rather than participating. The logic is twisted by global warming, because it collapses the perceived distance between humans and nature – between you and the diorama … you do not live outside the scene but within it.104

As territories sink under water and cease to exist, the very coordinates that tether our view of the world are being dislocated. Scholars are scrambling to understand these dislocations and transformations and to find the right words and concepts to enable ‘the earth’s biogeochemical relations’ to become part of our political imaginary.105 Transnational environmental law scholars possess the conceptual toolkits to make unique contributions at a time when law might need to be understood through complex regulatory constellations, when theory confronts the terrestrial as ‘a new political actor’,106 and when the pragmatic task of environmental law shifts

Chakrabarty (n 1) 109. For an explanation of the Actor–Network–Process triad as an element of transnational legal method, see Zumbansen (n 4). 101 D. Matthews, ‘From Global to Anthropocentric Assemblages: Re-Thinking Territory, Authority and Rights in the New Climatic Regime’ (2019) 82(4) Modern Law Review 665, 666. 102 See e.g., F. Capra and U. Mattei, The Ecology of Law (Berrett-Koehler 2015); P. Burdon, Earth Jurisprudence: Private Property and the Environment (Routledge 2015). 103 P. Sloterdijk, ‘The Anthropocene: A Process-State at the Edge of Geohistory’ (A.-S. Spring trans.) in H. Davies and E. Turpin (eds), Art in the Anthropocene: Encounters among Aesthetics, Politics, Environments and Epistemologies (Open Humanities Press 2015) 327, 334. I credit D. Matthews with drawing this link between the legal presuppositions of modernity and Sloterdijk’s work. Ibid 667. 104 D. Wallace-Wells, The Uninhabitable Earth: Life after Warming (Tim Duggan Books 2019) 150. 105 Matthews (n 101). 106 Latour (n 63) 40. 99

100

An unknown past, an unequal present, and an uncertain future  47 from ‘saving nature and solving environmental problems to living with problems that are our new and permanent conditions’.107

5

CONCLUSIONS: THE DIVERSITY OF PRACTICE OF TRANSNATIONAL ENVIRONMENTAL LAW

Approaching transnational law as a visual field is a way of acknowledging that how and from where and through whom law is perceived, matters. For international lawyers, Daniel Bethlehem suggests that the ‘world looks different from Geneva than it does from New York’.108 He contrasts the Big Power Politics-dominated view of the New York-based United Nations institutions with that of the Geneva-based specialized agencies working ‘at the sharp end of the world of the future – focused on cyber, on food security, on pandemic health scares, on the interconnectedness of the global trade and financial system’.109 The larger point, and one which Bethlehem acknowledges, is that there is a vastly different, more diffuse and decentralized world, which comes into view when one moves beyond a state-fixated vision. This is a perspective of particular interest to transnational law. Yet this view itself imports a research challenge – that of complementing and correcting the view from Geneva and New York with perspectives from Amman and Addis Ababa and Akbarpur. As this chapter argues, new research agendas emerge organically from such shifts of gaze. And the very exercise of identifying future research agendas brings to light the rich diversity of current practices of transnational environmental law. This diversity emerges through creative lenses such as scholarship on transnational localism, challenging the view that global problems necessitate global or uniform regulatory solutions.110 An ongoing challenge for transnational law scholarship, then, is to nurture research that leads to the multiplying of viewpoints, that challenges both temporal and spatial short-sightedness, and that accounts for and is accountable to, more and different beings.

Purdy (n 29) 231. D. Bethlehem, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’ (2014) 25(1) European Journal of International Law 9, 11. 109 Ibid 11–12. 110 J. Penca, ‘Transnational Localism: Empowerment through Standard-Setting in Small Scale Fisheries’ (2019) 8(1) Transnational Environmental Law 143. 107 108

4. Methodological challenges of transnational environmental law Elisa Morgera, Louisa Parks and Mika Schroeder

1 INTRODUCTION This chapter will discuss the growing need for law students and researchers to develop, and to keep honing, specific methodological skills to understand complex and increasingly prominent transnational phenomena in environmental law. The chapter will then focus on three interrelated methodological challenges to the study of transnational environmental law: comparison, empirics, and interdisciplinarity. These considerations will lead to a reflection on the nature of collaboration and research ethics, as well as on common constraints arising from research funding opportunities. In exploring these challenges, the chapter builds upon the methodological insights from a five-year collaborative and comparative research project on the legal concept of fair and equitable benefit-sharing (BENELEX)1 at different regulatory and geographical sites.2 The BENELEX project provides a practical understanding of the need for reflexivity and accountability for researchers interested in transnational environmental law, as well as an opportunity to collaboratively develop a transnational environmental law research project and carry it out through embedded peer learning and supportive peer review.

2

THE COMPLEXITIES OF TRANSNATIONAL ENVIRONMENTAL LAW

A key concern facing transnational environmental lawyers is that of unpacking and gaining a deeper understanding of the ‘multilevel governance context in which contemporary environmental law unfolds’.3 Bosselmann has highlighted that environmental law is conceptually different from other areas of law in two regards: first, it is not merely a piece of the ‘legal cake’, but rather an element which ‘brings texture and flavour’ to an entire legal system. Consider, for instance, the need to pursue environmental protection not only through the development of a bespoke set of environmental legal provisions but also through the mainstreaming of environmental requirements in other sectors (from criminal to trade law, etc.).4 Consider also the incredibly broad subject-matter of environmental law, spanning the commons and includ1 BENELEX – Benefit-sharing for an equitable transition to the green economy – the role of law. Funded by the European Research Council (grant 335592), www​.strath​.ac​.uk/​research/​strathclyd​ ecentreenviron​mentallawgovernance/​benelex/​. 2 L. Parks and E. Morgera, ‘The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-Sharing’ (2015) 24 RECIEL 353. 3 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) 1 Transnational Environmental Law 1, 8. 4 https://​sustainabledevelopment​.un​.org/​sdgs.

48

Methodological challenges of transnational environmental law  49 ing human and non-human, living and non-living components of the environment and their interactions and interdependencies. Secondly, the subjects of environmental law are all of us, as opposed to particular segments of society: private individuals (in different capacities: as citizens, taxpayers, consumers, emitters of greenhouse gases) and legal entities (both private and public). All have environmental duties, which in turn has implications for their rights and duties governed by other legal fields, and vice versa.5 When returning to the idea of studying multilevel governance from a transnational perspective, it quickly becomes clear that transnational environmental law researchers must address, as well as question, the constitution of these ‘levels’. In doing so, they must move beyond the monist and statist understanding of law, focused overwhelmingly on high-level politics. Instead, they need to enrich this understanding with an exploration of the ways in which norms are negotiated, adopted and used by different actors across sectors, including across the private and public ‘spheres’. Reflections upon the complex imagery of what makes up the setting of transnational environmental law illuminate the limitations inherent in adopting a positivist and hierarchical approach to legal research, trained on the unification of principles and standards operative in diverse spaces (be they geographical, cultural, or sectoral), often through methods of abstraction. Such an approach fails to adequately capture the intricate and multifaceted nature of transnational legal constellations, and provides a poor baseline for future action. First it risks ignoring the role of non-state actors in influencing the development of environmental law, by participating in international negotiations, or by claiming regulatory authority of its own.6 Secondly, from a perspective of critical justice, it risks ignoring the diversity of actors, values and bodies of knowledge which are historically left at the margins of negotiations or public/ private-driven action, yet could be crucial for progressive action on the ground.7 Furthermore, transnational environmental lawyers face the specific complexity of global law – the ‘pattern of heavily overlapping, mutually connected and openly extended institutions, norms and processes’ that have, in Neil Walker’s words, ‘global reach’ and ‘a global justification’.8 As a result, Walker emphasized that lawyers find themselves ‘somewhere between settled doctrine and an aspirational approach’:9 they engage not only in an epistemic but also in an advocacy endeavour. They identify ‘patterns of normative development [that] may be

K. Bossellmann, ‘Losing the Forest for the Trees: Environmental Reductionism in the Law’ (2010) 2(8) Sustainability 2224, 2426–8. 6 Heyvaert and Etty (n 3); Natasha Affolder, ‘Non-State Actors’ in E. Morgera and J. Razzaque (eds), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (Edward Elgar 2017) 387. 7 E. Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’ (2006) 38 George Washington International Law Review 33, 37; L. Tuhiwai Smith, Decolonizing Methodologies (Zed Books 2012); J. Hendry, M. L. Tatum, M. Jorgensen and D. Howard-Wagner (eds), Indigenous Justice: New Tools, Approaches and Spaces (Palgrave Macmillan 2018). For examples see: Forest Peoples Programme, International Indigenous Forum on Biodiversity and the Secretariat of the Convention on Biological Diversity, Local Biodiversity Outlooks: Indigenous Peoples’ and Local Communities’ Contributions to the Implementation of the Strategic Plan for Biodiversity 2011–2020, A Complement for the Fourth Edition of the Global Biodiversity Outlook (2016); Indigenous Circle of Experts (ICE), We Rise Together: Achieving Pathway to Canada Target 1 through the Creation of Indigenous Protected and Conserved Areas in the Spirit and Practice of Reconciliation (2018). 8 N. Walker, Intimations of Global Law (Cambridge University Press 2015) 11–12, 14 and 18. 9 Ibid 18 and 21. 5

50  Research handbook on transnational environmental law anticipated and pursued’,10 with the aim of addressing the perceived limits of certain areas of international law through ‘a more selective reading of its sources and areas of impact’.11 All the complexities which characterize transnational and global environmental law have been experienced in the BENELEX project. Fair and equitable benefit-sharing is a quintessentially multilevel concept at the interface of public and private law. It seeks to allocate monetary and non-monetary benefits arising from bio-based innovation, conservation and natural resource use to states and non-state actors with a view to creating a genuine partnership in contexts characterized by significant power asymmetries.12 Benefit-sharing thus entails complex and creative links between different areas of international law (environmental law, human rights, economic law, etc.);13 as well as a dynamic web of national laws, contractual arrangements between private parties,14 and the customary laws of indigenous peoples and local communities.15 The BENELEX project, therefore, was designed to address both high-level politics through an analysis of transnational environmental law questions in the multiple forums where public international law on benefit-sharing was developed, reviewed or refined,16 as well as local negotiations around benefit-sharing conducted by different non-state actors (including indigenous peoples, NGOs, private companies, and local governments). Throughout the design and implementation phases of the project, BENELEX researchers were faced with new challenges connecting translational law with debates on global justice.17 In particular, the BENELEX project aimed at reflecting on how transnational environmental law research can respond to, and be enriched by, different dimensions of environmental justice scholarship,18 which also raised questions about the potential role of transnational environmental law scholars as advocates.

3

COMPARATIVE LEGAL METHODS

One methodological approach to reveal and map the complexities of transnational environmental law is the use and further development of comparative legal methods. This section discusses how settled methods and long-standing methodological debates in comparative law that focus on transnational law can contribute towards framing and responding to questions currently emerging from transnational environmental legal scholarship.19 Ibid 152. Ibid 112–13. 12 E. Morgera, ‘The Need for an International Legal Concept of Fair and Equitable Benefit-Sharing’ (2016) 27(2) European Journal of International Law 353. 13 E.g., E. Morgera, M. Buck, and E. Tsioumani (eds), The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges (Brill 2012). 14 E.g., Nagoya Protocol, Art. 17(2)–(4). 15 Nagoya Protocol, Art. 12(1). 16 Morgera (n 12). 17 N. Walker, ‘The Gap between Global Law and Global Justice: A Preliminary Analysis’ in N. Roughan and A. Halpin (eds), In Pursuit of Pluralist Jurisprudence (Cambridge University Press 2017). 18 E. Morgera, ‘Justice, Equity and Benefit-Sharing under the Nagoya Protocol to the Convention on Biological Diversity’ (2015) Italian Yearbook of International Law 113. 19 This section draws on E. Morgera, ‘Global Environmental Law and the Comparative Legal Method(s)’ (2015) 24(3) RECIEL 254. 10 11

Methodological challenges of transnational environmental law  51 In effect, comparative law has hosted a wealth of methodological debates that have not yet been fully absorbed in the context of environmental legal scholarship.20 Specifically for present purposes, comparative legal methods have been refined to study phenomena that cut across different levels of regulation ‘because [comparative law] consciously detaches itself from the limits set by the legal system of the nation-State … it dismisses borders from the viewpoint of knowledge production’.21 Comparative lawyers have also dealt in depth with the risk of over-reliance on ‘western’ models22 of regulation and with the need for transnationally oriented empirical research (discussed below).23 Comparative legal methods, therefore, already provide a wide-ranging methodological toolkit, and an extensive body of scholarly reflection on methodology, which can support transnational environmental lawyers in better understanding legal diversity both in terms of local influences and emerging global patterns.24 In fact, comparative lawyers largely see methodology as open-ended: dependent on a specific purpose,25 experimental,26 ‘enduringly risky’27 and ‘always limited to some extent’.28 So comparative law offers the transnational environmental lawyer a process that necessarily (and usefully) entails: openly coming to terms with challenges; systematically recognizing risks and limitations; and purposely framing a research project around these challenges, risks and limitations.29 Although the prospect may be daunting, the researcher can find inspiration in this frank and accountability-centred approach to dealing with the complexity of transnational environmental law. This approach allows much-needed flexibility to engage in a process of understanding and appreciating mutual interdependence.30 Against this backdrop, the BENELEX project chose to engage with the comparative law notion of norm diffusion31 in order to better understand the mutual interactions between different levels of legal ordering (which are not necessarily static or clearly defined) at different geographical levels, including soft law, transnational law, and the customary law of indigenous peoples and local communities.32 It focused on the results of cross-level transfers and reciprocal influences, emerging in formal, informal, semi-formal or mixed configurations over a continuous and often lengthy process as the result of interactions between a variety of Ibid. See also J. Darpö and A. Nilsson, ‘On the Comparison of Environmental Law’ (2010) 3 Journal of Court Innovation 1, 315. 21 J. Husa, A New Introduction to Comparative Law (Hart 2015) 20. 22 W. Twining, ‘Social Science and Diffusion of Law’ (2005) 32(2) Journal of Law & Society 203–5. 23 Ibid 217. 24 W. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa (Cambridge University Press 2006) 596. Concluding, Menski refers to ‘pluralistic glocalisation’ as the constant, visible and invisible, dynamic interactions between global and local elements of law. See also W. Menski, ‘Beyond Europe’ in E. Örücü and D. Nelken (eds), Comparative Law: A Handbook (Hart 2007) 210. 25 E. Örücü, ‘Developing Comparative Law’ in E. Örücü and D. Nelken (eds), Comparative Law: A Handbook (Hart 2007) 43 and 46–48. 26 Husa (n 21), 96. 27 R. Cotterrell, ‘Is It Bad to be Different? Comparative Law and the Appreciation of Diversity’ in E. Örücü and D. Nelken (eds), Comparative Law: A Handbook (Hart 2007) 152. 28 Husa (n 21), 24. 29 Ibid. 30 P. Glenn, Legal Traditions of the World (5th edn, Oxford University Press 2014) 48 and 371–8. 31 W. Twining, ‘Diffusion of Law: A Global Perspective’ (2004) 49 Journal of Legal Pluralism 1, 5 and 14. See also E. Örücü, 'Law as Transposition' (2002) 51 International Comparative Law Quarterly 2. 32 Twining (n 31) 11–12. 20

52  Research handbook on transnational environmental law state and non-state actors (including the private sector, NGOs, individuals and communities, activists and lobbyists, as well as teachers and researchers).33 The choice also permitted the BENELEX project to rely on the concepts and approaches used in the study of norm diffusion in the social sciences. As Twining suggested, this helped to understand the role of the behaviour, perceptions and interactions of different actors in particular contexts, as well as the paths through which a legal concept and legal practices may spread outside the law or emerge from the bottom up.34 For one thing, this allowed BENELEX researchers to become aware of possible bias, such as the assumption that the diffusion of benefit-sharing was due to it being a ‘desirable, progressive or innovative’ norm.35 In addition, it allowed the BENELEX team to identify ‘a significant (but little explored) area of convergence in the legal, sociological and international relations literatures on norm diffusion’ and on that basis to appreciate the importance of active and passive pathways of diffusion, and the role of framing (discussed below).36 The project was then able to build on these points of contact to suggest opportunities to integrate the understanding of actors and institutional channels for norm diffusion that may fall at different points between continuums flowing from formal to informal mechanisms, active to passive legal instruments and actors, and paths of diffusion between top-down and bottom-up (or indeed horizontal). The project further underscored the need to combine legal scholarship about how the law in and of itself works as an agent of norm diffusion with accounts from sociology and international relations. The latter disciplines focus on actors and processes as agents of norm diffusion up to the point of official adoption of a legal instrument, and then move on to look into the next actor or process that is about to adopt another instrument related to the same norm. This means that sociology and international relations scholars tend to overlook the way norms develop after the adoption of a legal instrument, which is where legal scholars can add value through the lens of legal interpretation. Bringing these areas of scholarship into conversation with one another made it possible to consider norm diffusion as a phenomenon that takes on different shapes and continues to develop in different ways over time, and also as a consequence of the adoption of legal instruments and their influence on other lawmaking and interpretative processes at different levels or in different contexts.

4

EMPIRICAL LEGAL RESEARCH

Another methodological approach to reveal and map complexity is empirical research. What makes research empirical is that it is grounded in the observation of the world through data collected by the researcher.37 Many studies already draw on both doctrinal and empirical

Ibid, particularly table at page 17. Twining (n 22). 35 Ibid 232. 36 Parks and Morgera (n 2), 363–5. See generally on framing and international law, A. Nollkaemper, ‘Framing Elephant Extinction’ (2014) 3 ESIL blogpost 6, https://​esil​-sedi​.eu/​framing​-elephant​-extinc tion/. 37 L. Epstein and G. King, ‘Empirical Research and the Goals of Legal Scholarship: A Response’ (2002) 69 University of Chicago Law Review 1, 1–2. 33 34

Methodological challenges of transnational environmental law  53 research methods, treating the different sets of data (black-letter law and empirical research findings) as complementary.38 The introductory editorial of the very first edition of the Transnational Environmental Law Journal invites researchers to study ‘law-in-action’, making the point that although rules themselves are important, the way that they are adopted and influence daily governance and decision-making processes is crucial for understanding law within its broader setting.39 This section will assess progress in empirical environmental legal research and the degree to which it has addressed transnational issues. It will then identify methodological questions that emerge with specific regard to transnational environmental law. Empirical research methods are used widely across the social sciences. There is a growing recognition that these approaches can unearth and aid in interpreting the complex nature of law and the legal phenomena that exist and interact across scales and sectors. As a result, a significant development in legal scholarship over the past couple of decades has been the rise in empirical legal research, to some extent largely associated with socio-legal research.40 A recent study, however, suggests that empirical research related to environmental law in particular lags behind in this trend and is still in its infancy.41 Traditional legal scholarship stems from doctrinal research, or ‘black-letter law’, which chiefly focuses on the law as a self-contained and self-sustaining set of principles and values, deriving from legal texts and judicial decisions, which the traditional legal scholar draws on in seeking order, rationality and theoretical cohesion.42 A more recent tradition in legal scholarship stems from the late 1960s and explores law as part of society, linking legal research to concerns in political science and sociology, examining the mutual influences between law and societal change (be they positive or negative).43 This ‘law in context’ approach, alongside other critical theories of law – realism, critical legal theories, feminism and post-colonial studies – has sought to ‘demystify the positivist mentality of neutrality in the law’.44 By treating law as an inherently societal phenomenon – complex in its forms and structures, in the ways that it is created and used, and the way in which it interacts with other rules and normative structures in society (scalar, sectoral, or institutional, etc.) – critical scholars have illustrated that law cannot be amoral or apolitical simply in the sense that it represents a dominant view.45 Ultimately, what becomes clear is that any one dominant approach to studying the law is incomplete in telling us what the law is, or what it does. Law, as any social phenomenon, can be perceived from a multitude of perspectives: this encourages transnational environmental lawyers to See generally D. della Porta, ‘Comparative Analysis: Case-Oriented versus Variable-Oriented Research’ in D. della Porta and M. Keating (eds), Approaches and Methodologies in the Social Sciences (Cambridge University Press 2008); M. McConville and W. Hong Chui, ‘Introduction and Overview’ in M. McConville and W. Hong Chui (eds), Research Methods for Law (Edinburgh University Press 2007), 1. 39 Heyvaert and Etty (n 3). 40 Yet, as will be made clear below, it is not only ‘socio-legal’ research which draws on empirical research methods, but also legal anthropology, legal geography, etc. 41 R. L. Fischman and L. Barbash-Riley, ‘Empirical Environmental Scholarship’ (2018) 44(4) Ecology Law Quarterly 767. Notably, some topics (such as pollution control studies) attract more empirical approaches than others. 42 McConville and Chui (n 38). 43 Ibid. 44 M. Davies, Delimiting the Law: ‘Postmodernism’ and the Politics of Law (Pluto Press 1996) 2. 45 Ibid. 38

54  Research handbook on transnational environmental law engage explicitly with subjectivity in legal interpretation46 – their own as well as that of other interpreters. This can be done by reflecting on the multitude of information – textual analysis of legal instruments; study of decision-making processes; observations of the ways in which norms shape space, value and meaning – and by considering how this in turn influences the actions of people, institutions and groups.47 Empirical legal studies have provided a response to scholars of comparative legal studies and legal pluralism, the latter stemming from legal anthropology, who have criticized the traditional legal school for failing to address the increasing hybridization of norms and legal systems through globalization, and for ignoring the pluralities within and between legal systems in favour of uniformity, order and state-focused approaches to legal understanding.48 Critical scholars in particular encourage lawyers to reflect deeply on the relationship between law and gender, social class, ethnicity, geopolitics, international economics, and other relations of power.49 Because they are useful to identify and interrogate these relationships, empirical research approaches are gaining traction in helping tease out and deepen the understanding of legal phenomena as they operate in society (within, beyond or between national borders).50 As non-state actors such as indigenous peoples, private companies, NGOs, bilateral donors and international advisors gain further access to lawmaking forums at different levels, power dynamics shift, which influences the ways in which laws are negotiated and adopted. In actor-oriented empirical research, legal sources can be ‘mapped out’ through dialogue with relevant actors,51 and the mapper should personally walk through legal spaces in order to ensure that the map adequately reflects the experiences of the people and groups involved. Within these mapping projects, a pluralistic understanding of law and the power of normative structures may allow reflection upon the relation between legal regimes within multilevel governance. It may also provide a good backdrop against which researchers can begin to unpack

46 Allison carried out a study of the Cuban Missile Crisis, examining the same events from different frames, and coming up with different explanations. G. T. Allison, Essence of Decisions: Explaining the Cuban Missile Crisis (Little, Brown & Co. 1971). In a similar vein, Wolf addresses feminist and postmodernist critiques of traditional ethnography by retelling the same set of events from three different textual perspectives and styles (fiction, anthropological field notes, and a social science article), all giving rise to different ‘outcomes’. M. Wolf, A Thrice-Told Tale: Feminism, Postmodernism, and Ethnographic Responsibility (Stanford University Press 1992). 47 See for instance S. Engle Merry, ‘New Legal Realism and the Ethnography of Transnational Law’ (2006) 32(4) Law & Social Enquiry 975; F. von Benda-Beckmann, K. von Benda-Beckmann and A. Griffiths (eds), Mobile People, Mobile Law: Expanding Legal Relations in a Contracting World (Routledge 2004). 48 Menski (n 24), 25. Crucially from a global perspective, Menski also criticizes the way that globalization, and international law, are still in many regards being conceived within the frame of a ‘civilizing mission’ approach, linking them back to the colonial project. 49 R. Collier, ‘The Law School, the Legal Academy and the “Global Knowledge Economy” – Reflections on a Growing Debate: Introduction’ (2005) 14(2) Social & Legal Studies 259. 50 See for instance R. Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Oxford University Press 1995) 296; A. Bradney, ‘Law as a Parasitic Discipline’ (2002) 25(1) Journal of Law and Society 71. 51 Note, however, that the term ‘mapping’ carries some controversy, as its practice can be exclusionary in both process and substance. How mapping is done, in terms of who is included, when and how, is important. All mapping exercises produce as well as represent experienced realities, making them political as well as performative exercises. See Jeremy W. Crampton, ‘Cartography: Performative, Participatory, Political’ (2009) 36 Progress in Human Geography 6.

Methodological challenges of transnational environmental law  55 the ‘life’ of transnational law – from its negotiation, to the ways in which it is adopted and given meaning both within the ‘formal’ legal system, but also the way it comes to play a role in society more broadly. Empirical research, especially when grounded in qualitative approaches such as ethnography and informed by an understanding of law and power grounded in interpretivist epistemologies (for instance legal pluralism),52 could provide a good foundation for researchers interested in unpacking the meaning and practice of transnational environmental law. The growing body of institutional ethnography, for instance, addresses several of these aspects, and illustrates a way for scholars to study ‘law in action’. Drawing on a range of ethnographic methods (based upon the principle of immersion into a given space), a number of studies have explored the inner workings and decision-making processes of global institutions,53 and the ways in which international legal rules and policies are adopted and interpreted within a unique legal culture, at times going further to examine their use and given meaning by certain actors in specific cases.54 These studies provide an opportunity to reconsider the ‘life of law’ and legal processes, creating scope to bring empirical research findings into conversation with doctrinal and legal theory research, with the hopes of establishing a sustained dialogue between these two sometimes rather disparate fields of legal research. Such studies thereby help illustrate the benefits of empirical methodology, coupled with a pluralistic understanding of law and the power of normative structures in understanding the relation between legal rules and regimes under multilevel governance. Such studies thus can help lay the foundations upon which researchers can start to unpack the ‘life’ of transnational law – from the emergence and subsequent adoption of a norm under a legal system, to the ways in which it is adopted and given meaning, both within ‘formal’ legal systems at different levels and within society more broadly, influencing actors and institutions across sectors in different geographical sites. The BENELEX project sought to investigate legal spaces at local, national and regional levels, placing emphasis on the local dimensions of empirical case studies and their relevance both for the interpretation of international legal developments, and for an improved understanding of the influence which local actors exert on international lawmaking. One strategy to make these connections was researchers’ direct observation of and networking in multilateral meetings convened under international environmental agreements, particularly the Convention on Biological Diversity (CBD).55 Another approach was to track how community protocols were negotiated, revised and used by communities in their interactions with outside actors.56 A third, complementary strategy was to contrast the findings from the first two streams of research with a discourse analysis of the decisions adopted under the CBD.57 This multilevel

See next section below. R. Neizen and M. Sapignoli (eds), Palaces of Hope: The Anthropology of Global Organizations (Cambridge University Press 2017). 54 Engle Merry (n 47); M. Goodale and S. Engle Merry (eds), The Practice of Human Rights: Tracking Law between the Global and the Local (Cambridge University Press 2007); M. Sapignoli, Hunting Justice: Displacement, Law and Activism in the Kalahari (Cambridge University Press 2018). 55 As BENELEX researchers organized or contributed to international side-events, or were part of the independent reporting teams of the Earth Negotiations Bulletin: http://​enb​.iisd​.org. 56 L. Parks, ‘Challenging Power from the Bottom Up? Community Protocols, Benefit-Sharing and the Challenge of Dominant Discourses’ (2018) 88 Geoforum 87. 57 L. Parks, ‘Spaces for Local Voices? A Discourse Analysis of the Decisions of the Convention on Biological Diversity’ (2018) Journal of Human Rights and the Environment 9. 52 53

56  Research handbook on transnational environmental law and multi-method observation strategy of legal interpretation and influences on lawmaking provided insights that fed into the research process. It contributed to a pluralistic understanding of law and normative structures, as well as attributions and negotiations of meaning. While the BENELEX project did not engage in legal ethnography due to the decision to move beyond a single-case approach (which is a common trade-off in comparative approaches), the team took a grounded and flexible approach across five case studies. The team focused on putting empirical findings in conversation with doctrinal legal work, as well as social science research on the role of power in the negotiations of community protocols and among national, regional and local sources of authority, as well as between community members. This approach was designed to work towards accountability, and to provide a basis for future legal ethnography in this area.

5

INTERDISCIPLINARY RESEARCH AND INTERDISCIPLINARY RESEARCH DESIGN

The previous sections on comparative law and empirical approaches have already hinted at the importance of interdisciplinarity, since both comparative law research and the ‘law in context’ tradition raise similar research questions to political science and sociology. This section demonstrates how informing legal research with other disciplines and their associated methods and theories helps to deepen the understanding of law and legal discourse within its broader societal, historical, political, and cultural context.58 A great deal of literature discusses multi- and interdisciplinarity in law, but for the purposes of transnational environmental law, the key motivation for multi- and interdisciplinarity is that international law as a process implicitly recognizes that legal norms must have an impact on behaviour.59 Multidisciplinary work approaches an area of study from different perspectives, placing these in parallel to provide a fuller picture of the phenomenon under investigation. Multidisciplinary work may thus be best placed to describe studies of the same phenomenon from a variety of disparate disciplines: one example may be studying chemical health risk control from legal, toxicology, and sociology perspectives in turn, and juxtaposing the findings from each stream of research. Interdisciplinary approaches, in turn, move beyond the presentation of a phenomenon from different disciplinary perspectives, and aim instead to infuse research within a home discipline with the insights and approaches of other, complementary disciplines. This serves to identify the blind spots of the home discipline through the lens of another and, ultimately, to address such blind spots with the help of the other discipline(s).60 Within the BENELEX project, as in other transnational environmental law research projects, interdisciplinary research thus required constructively critical collaboration between linked disciplines (discussed below).

Ibid. See J. L. Dunoff and M. A. Pollack, ‘International Law and International Relations: Introducing and Interdisciplinary Dialogue’ in J. L. Dunoff and M. A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013) 3. 60 Ibid. 58 59

Methodological challenges of transnational environmental law  57 The BENELEX project also revealed that the team followed a progressive path from multidisciplinarity to interdisciplinarity, along a continuum. While researchers from different disciplines published work within their own discipline that had been significantly enriched by the insights, critiques and findings arising from the research conducted in other disciplines, there was not sufficient time over a five-year project to develop joint publications to bring the results of the critical collaboration between the different disciplines more closely together. In addition, the project did not allow time, resources or methodologies to move beyond interdisciplinarity towards transdisciplinarity – i.e., integrating traditional knowledge and traditional knowledge holders into the design and conduct of research.61 This certainly remains a key objective for any transnational environmental law project that seeks to fully engage with indigenous peoples’ and local communities’ issues, customary laws and perspectives.62 Nevertheless, the BENELEX project featured discussions on interdisciplinary research design that gradually shifted from relatively narrow questions on methodology and methods to a consideration of broader questions regarding ontology and epistemology.63 Such considerations can be of relevance to other transnational environmental law researchers. Thinking through and making explicit the ontological and epistemological assumptions underpinning a research project is crucial to ensure transparency and accountability in research design in all social sciences. Beginning research with clear statements about how researchers understand the objects of study (ontology) and how they expect to gain knowledge about them (epistemology) forces proper attention to be paid to disruptive ideas about what constitutes appropriate data, or information, about the phenomenon under study. Observing research design steps that are common to all social sciences supports the consideration and integration of contributions and perspectives – as well as methods – that resonate in disciplines outside one’s own. This is crucial for present purposes, as conventional doctrinal approaches may not be the most adept tools to identify and understand transnational environmental legal phenomena. This is not in any way to claim that traditional legal sources and methods are not needed. Rather, formal legal sources need to be brought into conversation with and challenged by alternative sources that emerge as powerful factors in transnational environmental law. As a result, traditional legal methods (notably methods of legal interpretation) should be accompanied by methods from other disciplines to get the broadest and most nuanced picture possible of (often fast-changing and surprising) transnational environmental law phenomena. The research design process common to the social sciences can thus lead legal scholars to a more nuanced understanding of legal sources and to embrace new or renewed methods. Notwithstanding the variety of legal questions that occupy transnational environmental law

61 Similar findings have emerged from other interdisciplinary research projects outside the Law: Ecosystem Services for Poverty Alleviation (ESPA) Programme, ‘Interdisciplinary Research for Development Impact: How Can Funders Walk the Talk?’ Policy and Practice Briefing, March 2018, to which Elisa Morgera contributed on the basis of the experience of a separate research project on benefit-sharing integrating law and marine sciences (MARINE BENEFITS: ‘Sharing the benefits of sustainable fisheries: from global to local legal approaches to marine ecosystem services for poverty alleviation’, ESPA Grant No. NE/M007650/1, 2015–2017). 62 E. Morgera, ‘The Research Challenges of International Biodiversity Law’ in E. Morgera and J. Razzaque (eds), Encyclopedia of Environmental Law: Biodiversity and Nature Protection Law (Edward Elgar 2017) 6–7. 63 E. Fisher, B. Lange, E. Scotford and C. Carlane, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21(2) Journal of Environmental International Law 213.

58  Research handbook on transnational environmental law scholars, the initial steps in the research design are likely to be shared by many, even if they are not explicitly discussed in eventual publications. This is because these steps force researchers to be rigorous in defining their objects of study, and how they intend to gain knowledge of them. Considering questions of ontology and epistemology at the outset of the research opens up the legal research methodology to input from other disciplines. The first step in research design in the social sciences is to pose questions about ontology. Fundamental disagreements between social scientists generally stem from ontological questions – that is, about how we see the world, which in turn frames what we understand to be ‘scientific’ knowledge (epistemology) and what constitutes the right kind of information for us to acquire knowledge (methodology). Hughes, cited in Moses and Knutsen,64 sums up the importance of posing basic questions about epistemology and methodology as follows: Every research tool or procedure is inextricably embedded in commitments to particular versions of the world and to knowing that world. To use a questionnaire, to use an attitude scale, to take the role of a participant observer, to select a random sample, to measure rates of population growth, and so on, is to be involved in conceptions of the world which allow these instruments to be used for the purposes conceived. No technique or method of investigation (and this is as true of the natural sciences as it is of the social) is self-validating: its effectiveness, i.e., its very status as a research instrument making the world tractable to investigation, is, from a philosophical point of view, ultimately dependent on epistemological justifications.

The main difference identified between ontologies in the social sciences is between objectivism and constructivism. An objectivist ontology sees the social world as composed of objective ‘things’ with their own reality and meaning, which can be observed in the world and studied. Constructivist ontologies, on the other hand, view the social world as meaningful only to the extent that meaning is assigned by social actors, usually in interaction. Social objects mean what we decide they mean, and there is no fixed ‘truth’ to be discovered. Ontological starting points thus have clear effects on how we study the social world. They tend to be linked with certain epistemologies (though this is not always the case). Most commonly, objectivist ontologies correspond with positivist epistemologies, while constructivism leads to interpretivist approaches. Positivist studies may lead to research designs geared to the discovery of more or less universal ‘rules’ and patterns, whereas interpretivist approaches – rooted in dynamic views of social phenomena – will see meaning as contextually bound and located in social interaction. In the BENELEX project, the intention was to investigate the emerging norm of benefit-sharing – a still unsettled legal concept in progressive development at both international and local levels. Given this research interest, the starting point for the project was constructivist, as benefit-sharing was understood to still be very much ‘under construction’ in interactions between many different actors across many different lawmaking processes. Benefit-sharing was under discussion, for example, in a number of international treaty bodies. It was also being discussed by many local communities across the world, sometimes in connection with international legal developments and sometimes in complete isolation from them. The BENELEX project therefore focused on the interpretation of different legal sources on benefit-sharing through a corresponding constructivist view of the law. An interpretivist 64 J. W. Moses and T. L. Knutsen, Ways of Knowing: Competing Methodologies in Social and Political Research (2nd edn, Palgrave Macmillan, Basingstoke 2012) 4.

Methodological challenges of transnational environmental law  59 epistemology became equally relevant – the meaning of benefit-sharing was contained in these discussions. While this approach was by no means the only ‘right’ way to study benefit-sharing, it was helpful to answer research questions about benefit-sharing at different regulatory levels, in different geographical sites, at a certain point in time. If a norm stabilizes, and its content becomes more fixed and traditionally codified, then an objectivist and positivist approach could be more appropriate. Choices in terms of ontology and epistemology are a necessary step to couch decisions on methodology and, eventually, methods.65 Methodology is distinct from methods. Moses and Knutsen provide a simple but effective analogy here: if methods are tools, methodology is the toolbox. The question researchers must pose themselves on methodology, they argue, is more or less the following: given my view of the world surrounding this particular research object (ontology) and my corresponding idea of what constitutes knowledge about this object (epistemology), what is the best way of acquiring that knowledge?66 BENELEX research questions about benefit-sharing had drawn attention to social interactions in a variety of arenas, so the methodology was therefore based on considerations of how best to acquire knowledge of these interactions. In addition to a return to the basics of ontology and epistemology, a key step towards the construction of a methodology involves addressing questions of operationalization. This refers to thinking seriously about what sources can inform researchers most accurately about their research objects. Often, this part of research design is not subjected to a great deal of thought, as sources appear clear and unambiguous. However, taking a constructivist approach means acknowledging that meaning is not fixed – it is built in interaction. Relevant information may come from more static sources such as legal texts, but it will also be contained in more dynamic sites – such as discussions between people, and interpretations of the law in less formal texts. Attention to the social realm also led BENELEX researchers to consider interactions at different levels – not only the high-level discussions in international arenas, but also exchanges among indigenous and local communities on the ground, in national and international debates – in understanding how a legal norm was framed and implemented.67 Traditional legal approaches (doctrinal approaches) were only partly suited to the study of discussions of benefit-sharing in treaty bodies at the international level and in community discussions at the local level, as these levels (and many other levels in between: regional, intergovernmental, national, provincial, etc.) were interdependent. The BENELEX project thus looked to other social-scientific disciplines, and political sociology in particular, to combine with a legal methodology. A series of comparative case studies drawing on sociological methods was designed to address the local level, using unstructured and semi-structured interviews as well as participant observation. These studies then informed and directed aspects of legal studies of transnational environmental law. The findings were also used to guide sociological research

L. Parks and E. Morgera, ‘Reflections on Methods from an Interdisciplinary Research Project in Global Environmental Law’ (2019) 8 Transnational Environmental Law 489. 66 Moses and Knutsen (n 64). 67 See also G. A. Sarfaty, ‘International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation’ (2007) 48 Harvard International Law Journal 2. 65

60  Research handbook on transnational environmental law on the presence of key themes for local communities at the international level, using discourse and frame analysis.68 Following these research design steps aided BENELEX researchers first to be explicit to themselves about adopting a constructivist starting point. This in turn led their attention to questions of epistemology, methodology and operationalization, which helped in designing research geared towards investigating how law was interpreted by a range of actors, and exploring their agency. The methodology and methods were thus explicitly designed to allow researchers to acquire knowledge of actors’ perceptions of the law, including non-legal interpretations and framings made at the local level. This focus on framing meant that the BENELEX project produced work not only on the complex legal field surrounding questions of benefit-sharing, but also on views of benefit-sharing at local levels that often had little to do with the international norm itself, but were rooted in pre-existing local traditions, including those about the management of commons.69 Another useful consequence of a constructivist starting point was that attention was paid to lay interpretations of legal texts, particularly ‘softer’ texts such as voluntary guidelines and codes of practice. The significance of language aimed at those who are not legal experts – including members of local communities – was thus considered within the BENELEX project as a valid element of framing and interpretation beyond strict legal considerations. Overall, following the thought process underlying this research design, common in the social sciences though less so in law, can be useful for scholars of transnational environmental law more generally. As an emerging and constantly changing field, it will certainly benefit from research designs that are also able to study the field beyond the realm of formal legal artefacts. In particular, attention to framing beyond a conventional formal approach to legal interpretation, can allow transnational environmental lawyers to untangle the different meanings attributed to a legal norm in different locations by different actors. Attention to frames offers at least three advantages to transnational environmental lawyers. First, attention to frames helps identify blind spots vis-à-vis the role of politics, agency and perceptions.70 Secondly, attention to frames supports a more dynamic and non-hierarchical understanding of norm diffusion. For example, local frames may differ from international frames (i.e., understandings codified at the international level) but over time local frames brought to the attention of international lawmakers (through community protocols, for instance)71 could eventually contribute to an alteration of such international framings.72 Thirdly, attention to frames can reveal how norm diffusion may be affected by power imbalances and strategic (or potentially empty) uses of international norms in the constant renegotiation or redefinition73 across scales. For instance,

68 Parks (n 57); L. Parks and M. Schröder, ‘What We Talk about when We Talk about “Local” Participation in International Biodiversity Law – The Changing Scope of Indigenous Peoples and Local Communities’ Participation under the Convention on Biological Diversity’ (2018) 11 Participation and Conflict 3, http://​siba​-ese​.unisalento​.it/​index​.php/​paco/​article/​view/​20227/​17195. 69 E. Tsioumani, ‘Beyond Access and Benefit-Sharing: Lessons from the Emergence and Application of the Principle of Fair and Equitable Benefit-Sharing in Agrobiodiversity Governance’ in F. Girard and C. Frison (eds), The Commons, Plant Breeding and Agricultural Research (Routledge 2018). 70 A. Nollkaemper, ‘Framing Elephant Extinction’ (2014) 3 (6) ESIL Reflections, https://​esil​-sedi​ .eu/​framing​-elephant​-extinction/​. 71 Parks (n 56). 72 Parks and Morgera (n 2). 73 Dunoff and Pollack (n 59).

Methodological challenges of transnational environmental law  61 environmental justice scholars have described benefit-sharing as a ‘disingenuous win–win rhetoric’ that leads to the loss of control and access over resources by the vulnerable through ‘narrative framings of the global public good’ and ‘dominating knowledge approaches’.74

6

RESEARCH ETHICS AND FUNDING

The final, yet arguably most important aspect of any research methodology, including the type of collaborative interdisciplinary methodology explored in this contribution, is the ethical framework adopted by the researcher. The history of research provides ample examples of instances in which the interests of those researched were treated as secondary to those of the researcher. What must be remembered is that research can be an alienating experience for many, and without reflexivity and flexibility exercised by the researcher, research endeavours will struggle to address relevant issues. Within areas of law that are characterized by positivist traditions steeped in the belief of objectivity and rationality on behalf of the researcher, we are not sufficiently instructed, let alone trained, to think about the implications of our research from an ethical perspective. Even in social sciences, however, all too often research ethics is treated as a consideration of secondary importance that comes at the end of research planning. Most university ethics procedures, even those relating to the humanities and social sciences, are thus based upon a so-called ‘tick-box exercise’, as opposed to genuine engagement with thorny ethical issues that would require a dialogue with research participants. The former proves ill-equipped to adequately address social science research in both practical and philosophical terms.75 But incorporating ethical thinking into the early stages of a research project, starting from questions of ontology onwards, can help set researchers up for conducting more meaningful research. Research has brought with it severe consequences to several groups in society.76 The perceived distinction between ‘experts’ and the general public works to reinforce an artificial divide between those holding certain types of knowledge and training, on the one hand, and the remainder of society on the other. This further entrenches constructed epistemological and ontological hierarchies, positioning researchers as those best equipped to determine knowledge gaps and priorities. The division has prompted critical scholars to call for renewed engagement and reflection upon the role of ethics in research projects. For instance, indigenous scholars and communities are calling for the decolonization of research processes, and are, as a result, articulating their own research agenda and methodologies.77 This includes demand-

74 A. Martin and others, ‘Just Conservation? On the Fairness of Sharing Benefits’ in T. Sikor (ed.), The Justices and Injustices of Ecosystem Services (Routledge 2014) 69, 84–8. 75 S. Vermeylen and G. Clark, ‘An Alternative Ethics for Research: Levinas and the Unheard Voices and Unseen Faces’ (2017) 20 International Journal of Social Research 5. 76 Historically, it played a central part in the colonizing project of indigenous peoples, their territories and cultures, acting as a tool to justify physical and psychological abuse, theft, discrimination and oppression. It has also been used as a tool by state institutions to justify the segregation, oppression, torture and killing of groups based on ethnicity, sexuality, skin colour, etc. See Tuhiwai Smith (n 7). 77 Gabrielle Russell-Mundine draws on a number of diverse indigenous scholars’ work to identify broad key principles that research by, or with, indigenous peoples should incorporate: seek to empower indigenous peoples; aim to decolonize and reframe research; be critical and liberationist recognizing social, political and historical contexts; have political integrity; privilege indigenous voices; recognize

62  Research handbook on transnational environmental law ing that research concerning indigenous issues emanates from the needs and concerns of the affected groups. It equally demands that research findings are discussed with the communities – or ‘given back’ – in an appropriate and meaningful way. It requires the non-indigenous researcher to commit to a process of reflecting on their positioning within the broader research agenda.78 Emphasis is placed on the researcher vis-à-vis those with whom they are conducting their research to understand and acknowledge the researcher’s privileged positioning within historical and contemporary power hierarchies, and to actively ‘dismantle colonial constructs’ by challenging beliefs, biases, prejudices and assumptions within the academy.79 Whether one is exploring issues affecting indigenous groups or not, these are important aspects that all researchers across disciplines should take into consideration if they are serious about ensuring that their research agenda remains in line with societal needs (be it local, domestic, or across borders). Furthermore, the traditional ethical framework found in university ethics committee boardrooms has its roots in traditional biomedical models based upon the principle of ‘do no harm’. This leads to ethical reviews being grounded in a utilitarian and consequentialist approach (least harm to the greatest number). Despite critical insights from social scientists,80 a shift is yet to occur. This means that there are limited checks and balances in place which incentivize researchers to go ‘above and beyond’ what is required by university ethics committees, even though merely passing these institutional checks does not mean that one has fulfilled ethical codes established elsewhere.81 Depending on one’s training, important matters risk being neglected. To counter this, Vermeylen and Clark propose a framework founded upon Levinas’ research ethics. Most importantly, it requires an open-ended approach to ethics in the field ­– ‘ethical sensibilities cannot be anticipated; they emerge only through encounters in the field’­82 – and an adjustment of research methodologies and practices to reflect the expec-

and represent the diversity of cultures, voices and experiences; allow indigenous peoples to set the agenda; focus on matters of importance to indigenous peoples; use core structures of Aboriginal world views; integrate cultural protocols, social mores and behaviours into methodology; integrate indigenous ways of knowledge creation. See G. Russell-Mundine, ‘Reflexivity in Indigenous Research: Reframing and Decolonising Research’ (2012) 19(1) Journal of Hospitality and Tourism Management 85, 86–7. In particular, she quotes Judy Atkinson, Maggie Brady, John Henry, Karen Martin, Martin Nakata, Lester-Irabinna Rigney and Linda Tuhiwai Smith. 78 Tuhiwai Smith (n 7) 132; Åsa Nordin Johnsson, ‘Ethical Guidelines for the Documentation of árbediehtu, Sami Traditional Knowledge’ (2011) 1 Diedut /Sámi allaskuvla. 79 G. Chakravorty Spivak, ‘Can the Subaltern Speak?’ in C. Nelson and L. Grossberg (eds), Marxism and the Interpretation of Culture (University of Illinois Press 1988); R. Kuokkanen, ‘The Responsibility of the Academy: A Call for Doing Homework’ (2010) 26(3) Journal of Curriculum Theorizing 61, 75–90; R. Kuokkanen, ‘Ethics of Sámi and Indigenous Research’ in Seminára raporta, Kárásjohka (Smi Instituhtta, Nordon 2008). 80 See for instance D. Manderson, Proximity, Levinas and the Soul of Law (McGill-Queen’s University Press 2006); G. S. Canella and Y. S. Lincoln, ‘Predatory vs. Dialogic Ethics: Constructing an Illusion or Ethical Practice as the Core of Research Method’ (2007) 13 Qualitative Inquiry 215; Y. S. Lincoln and G. S. Cannella, ‘Ethics and the Broader Rethinking/Reconceptualization of Research as Construct’ (2009) 9 Cultural Studies – Critical Methodologies 273; N. Emmerice, ‘Between the Accountable and the Auditable: Ethics and Ethical Governance in the Social Sciences’ (2013) 9 Research Ethics 175. 81 See for instance the American Anthropological Association, whose guidelines stress the contingencies between research sites as opposed to universal principles. 82 Vermeylen and Clark (n 75) 10.

Methodological challenges of transnational environmental law  63 tations of research participants.83 These proposals relate strongly to the point made regarding accountability and reflexivity on behalf of the researcher. In practice, this means opening up early opportunities for dialogue between researchers and research participants who will have insight into priority research questions and targets for the discussion of research findings in specific contexts. According to this approach, ethics is a process, as opposed to a one-off box-ticking exercise, and requires regular reflection on research aims, questions and methods, with the researcher remaining open to adjusting these as the work progresses. This requires the researcher to remain sensitive to existing power dynamics and relations, for instance in interview settings, consent forms, remunerations in exchange for contributions, etc., and to work actively to acknowledge, if not address, these dynamics through their own practices. The iterative approach to research and ethics also raises questions about its compatibility with current research fund rules. Many funders of legal and political research provide relatively short-term funding which may not be suited to this kind of iterative, risky, multilevel research.84 The constraints dictated by funding conditions, including the prior development and approval of methodologies, also warrant a fresh look, given the arguments outlined here and in more in-depth critiques.85 The limitations imposed by many funding rules are placed in yet sharper relief where the aim is to develop a research partnership to meet a group’s needs and effectively involve them in co-development according to their views and procedures.86

7

CONCLUDING REMARKS ON COLLABORATIVE RESEARCH

The complexity of transnational environmental law calls for an innovative and high-risk combination of methodologies that may be quite daunting for the researcher. In this chapter, we drew on the experiences of the BENELEX project to discuss various methodological approaches open to transnational environmental law, namely comparative legal research, empirical legal research, interdisciplinarity and research ethics. The BENELEX project sought to manage such methodological complexity and high risks through collaborative research. This concluding section will discuss how collaborative approaches may enrich studies of transnational environmental law generally, and inform the research design process in particular. Achieving credible comparative, empirical and interdisciplinary research often requires scholars to engage in close and long-term collaborations. While the infusions of different disciplines could be achieved by study alone, the BENELEX team found that collaboration was better suited to deal more confidently with the demands on individual researchers, as well as to nourish more creative approaches for individuals and the team as a whole. The collaborative approach developed under the BENELEX project entailed embedded peer learning and supportive peer review. Comparative legal methods, collaborative interdisciplinary work, and the need for reflexivity around questions of ethics and power, can all be better informed and

Ibid. ESPA (n 61). 85 Ibid; K. Love (ed.), Ethics in Social Research (Emerald 2012). 86 Ibid; Massey University, ‘A Brief Introduction to Te Ara Tika’ (undated), www​ .massey​ .ac​ . nz/​ m assey/​ f ms/ ​ H uman ​ % 20Ethics/ ​ D ocuments/ ​ T e ​ % 20Ara ​ % 20Tika ​ % 20summary ​ . pdf ​ ? 91​ A1B6C1CCBE36D7116F20C62124D4EB. 83 84

64  Research handbook on transnational environmental law achieved by exposing individual work and working methods to cross-fertilization, while still acknowledging individual researchers’ distinctive voice. This can be achieved, for instance, in individual publications where researchers systematically acknowledge their reliance on the comments and research of other researchers in the team, while retaining the opportunity to distinguish their own findings and distance themselves from other researchers’ countervailing insights, in whole or in part. During research design processes and in the acts of research, peer learning provided a supportive path towards interdisciplinarity, with researchers from different disciplines explaining to others the tenets of their own disciplines and key findings from their own literature reviews with a view to bringing team members from other disciplines up to speed with current debates in their disciplines. Peer learning in the early stages may take up time, but it can be fruitful as it ensures researchers reflect on fundamental questions about what they want to research, and how to gather the most suitable types of information. Peer learning is not a one-way process: all group members engaged in peer learning will be richer for it. In the BENELEX project, legal methods and data brought a new dimension to the work conducted by the political sociology researcher, and vice versa. During empirical research, the skills and approaches honed by, for instance, the legal researchers were invaluable to the political sociology researcher in understanding the workings and rationale of international treaty bodies, as well as the legal frameworks hindering or supporting local communities on the ground. Conversely, the skills and approaches honed by the political sociology researcher were essential to the legal researchers in understanding how power dynamics were affecting the negotiations and were encapsulated in the texts agreed upon by the international treaty body. In addition, political sociology also helped lawyers understand power dynamics around and within communities, and the overall importance of politics at different levels for local communities. Together with peer learning, supportive peer review comes into play as an embedded collaborative approach to transnational environmental law research. Peer review is of course normal practice in academic work. However, the kind of peer-review system developed in the BENELEX project was in line with collaboration both within and between disciplines. For one, it was very early peer review: peer review of paper outlines, of blog posts that sketched the need for certain research directions, and of early-stage work-in-progress. Second, peer review can sometimes be rather combative (particularly when anonymous and in direct service of publication). Instead, we deployed open and constructive – collaborative – peer review. This approach means taking seriously the idea that others’ research can enrich your own and, to that end, engage in a dialogue with the peer reviewer. Rather than simply defending a thesis, the researcher is supported in reflexivity and can also challenge the peer reviewer’s point of view. Again, this may be more time-consuming, but it also leads to a scholarly culture of supporting researchers that take on high-risk endeavours (including comparative, empirical and interdisciplinary projects). It supports researchers on a path where a project or personal research trajectory no longer fits neatly into a disciplinary box – or at least does not always fit into the same disciplinary box, which may be little understood by scholars (including external peer reviewers and journal editors) who do not engage in interdisciplinarity and may be little rewarded, in terms of career progression. Significantly, collaborative peer review may also help in making legal scholarship more comprehensible and relevant to other disciplines. In this manner, it can help build a more rounded, accessible, accountable and self-reflexive body of

Methodological challenges of transnational environmental law  65 knowledge about transnational environmental law, and identify where and how law in general can do better.87

87 See also K. Kulovesi, M. Mehling and E. Morgera, ‘Global Environmental Law: Context and Theory, Challenge and Promise’ (2019) 8 Transnational Environmental Law 405.

PART II UNDERSTANDING TRANSNATIONAL ENVIRONMENTAL GOVERNANCE

5. ‘Interglobalsuprasubandtransialidocious’: mapping and disentangling transnational environmental governance Till Markus and Olaf Dilling

1 INTRODUCTION Transnational environmental governance takes a wide array of forms. Its variety is only surpassed by the number of explanations and ideas regarding its nature. Ultimately, the terms seem to point mainly to an elusive and opaque patchwork of norms, which have evolved partly within and partly outside the traditional ‘Westphalian’ modes of law and government, and which have not yet fully developed into a distinct and stable legal or institutional order. This chapter aims to cut through this thicket. To this end it applies conventional lenses to transnational governance, using traditional dichotomies and distinctions such as private/ public, international/domestic, as well as supranational/national, and social/legal norms. Despite the fact that these dichotomies and distinctions have inherent limitations, they are useful for the purpose of better understanding the continuing ties and dependencies between new forms of environmental governance and more established institutions with their organizational structures. Transnational governance mechanisms and norms usually develop as informal solutions within more established institutional frameworks and often still rely on their capacities and resources. As a first step, this chapter will investigate the etymological roots of the term ‘transnational’. Secondly, it will outline the term’s conceptual history in the governance context and then, thirdly, distinguish it clearly from other pertinent governance semantics such as ‘domestic’, ‘inter’, and ‘supra’. Fourthly, as its centrepiece, the chapter introduces a diagram to sketch the field of transnational environmental governance. This figure provides a broad typology of existing and emerging transnational governance phenomena, which are then explored in a variety of cases. Finally, the chapter will also try to illuminate the different types of contexts in which transnational environmental governance mechanisms are embedded. This will allow us to explain how some of the arrangements have developed quite independently from more formal modes of law and government, or are based on organizational or contractual arrangements of the private sector, while others are still deeply rooted in public sector regulatory structures. The chapter ends with a conclusion and an outlook regarding this overview’s relevance for future research in transnational environmental law.

2

MAPPING TERMINOLOGIES

The term ‘transnational’ has been used extensively in the social science and legal literature over the last two or three decades, often in order to qualify the words ‘governance’ or ‘law’. 67

68  Research handbook on transnational environmental law Particularly since the turn of the millennium, there has been a steep increase in publications using this term. As a survey of the legal and social science databases HeinOnline and JSTOR shows, from the second half of the 1990s until the first half of the 2010s, the phrase ‘transnational law’ in publications more than doubled, while ‘transnational governance’ was used more than ten times as often.1 The term ‘transnational’ is not only featured in scientific publications, but is used in titles of legal research institutes, Master’s programmes or other courses of higher education, and academic journals.2 However, the term’s prevalence cannot conceal that it is used to denote considerably different phenomena and that it is based on a variety of distinct theories. Accordingly, discussions of related aspects of transnational governance also use expressions and terms such as supranational law, global law, public authority beyond the state, regulatory governance, inter-legality, legal pluralism, and so on.3 Often it is unclear how these terms relate to each other. For this reason, Gregory Shaffer refers to the literature on transnational law as ‘a jungle without a map’.4 Indeed, the question of how to define ‘transnational’, and which phenomena fall within the term’s scope, is far from settled. For our mapping exercise, it is crucial to reflect further on the meaning of ‘transnational’ and to distinguish the different meanings it has acquired since it was first introduced into the political science and legal discourse. Investigating the changing meaning of the prefix ‘trans’ in different functional and historic contexts can be a starting point to approach Schaffer’s ‘jungle without a map’ and contribute to clarifying the term’s meaning as compared to other prominent prefixes such as ‘inter-’, ‘sub-’ and ‘supra-’. In Latin, and subsequently as a loanword in the English language, ‘trans’ describes a relationship that goes beyond, through or across something. For example, ‘Gallia Cisalpina’ covered the Roman side of the Alps, now Upper Italy, while ‘Gallia Transalpina’ referred to the region north-west of the Alps. From a Roman perspective, the latter denoted the region beyond or across the Alps. Using the prefix ‘trans’ in describing relations between elements or entities may imply that they connect across borders, which often establishes a direct relation between elements of these entities. In the ‘transplantation’ of organs or ‘trans-

According to a database survey conducted on 4 February 2019 by Marvin Neubauer, Helmholtz Centre for Environmental Research. The results were compared and adjusted to the whole set of data. See also G. Shaffer, ‘Theorizing Transnational Legal Ordering’ (2016) 12 Annual Review of Law and Social Science 231. 2 By now, four journals use the term ‘transnational’ in their title: Columbia Journal of Transnational Law, Vanderbilt Journal of Transnational Law, Journal of Transnational Law and Policy and Transnational Law and Contemporary Problems. Since 2012, there is also a Cambridge University Press journal dealing specifically with, and titled, Transnational Environmental Law. 3 M. Reimann, ‘Beyond National Systems: A Comparative Law for the International Age’ (2001) 75 Tulane Law Review 1103; P.S. Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge University Press 2014); K. Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignty: The Emergence of Global Regulatory Governance’ (1999) 6 Indiana Journal of Legal Studies 425. See also B. de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (2nd edn, Cambridge University Press 2002) 472ff.; W. Twining, Globalisation and Legal Theory (Cambridge University Press 2000) 174–245; B. Kingsbury, N. Krisch and R. Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law & Contemporary Problems 15; E. Morgera, ‘Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law’ (2012) 23 European Journal of International Law 743. 4 Shaffer (n 1) 232. 1

Mapping and disentangling transnational environmental governance  69 fusion’ of blood in medicine, the physical delimitations of the organisms are overstepped.5 In contrast, ‘inter’ denotes a relation or object being situated between two separate entities, usually leaving them intact. ‘Supra’, in turn, indicates a hierarchical order between entities or elements involved. The two meanings of ‘what lies beyond’ and ‘what pierces through boundaries’ have been a source of confusion and ambiguity within the discourse on the ‘transnational’. In our view, something is transnational if it lies beyond the system of the nation state or transgresses its borders. Sometimes, this difference is made explicit by distinguishing between global and transnational norms. However, as Veerle Heyvaert puts it, transnational may also cover both the interstitial and the universal aspects of law and regulation.6

3

CONCEPTUAL HISTORY OF THE TRANSNATIONAL

The term ‘transnational’ was probably first used by the journalist Randolph Bourne in 1916. Bourne advocated the ‘transnational’ as a paradigm for integration in the United States (US). To him, it served as a counter-model to the then prevailing idea of assimilation, often metaphorically referred to as the ‘melting pot’.7 Ethnic differences became evident in the US in the course of the First World War. Bourne argued that peoples’ traditional cultural ties should be tolerated. For him, the cultural diversity presented a chance to seek ways of reconciling differing perceptions and values. Rather than a melting pot, Bourne envisioned a transnational America as a model for world peace. The concept of the transnational that is implicit in Bourne’s thoughts is one that acknowledges that individual citizens can keep and modify their relations with their countries of origin, thereby influencing the foreign policy of their new home country. In the German-speaking community of international private law or conflict of laws scholars, the term transnational acquired a different meaning in the first half of the 20th century. The Swiss Max Gutzwiller and the Austrian Gustav Walker used ‘transnational’ to refer to rules of conflict that are common to many jurisdictions, for example, the lex situs. Ernst Rabel, a German scholar of international private law who was forced to emigrate to pursue his career, introduced this terminology to the US legal community. Rabel pointed out that similarities of the conflict rules in different jurisdictions often result from the rules having common roots, such as Roman law. According to Rabel, it was the historical origin of those rules that made them ‘transnational’.8

5 In terms of governance and administration, see O. Dilling, M. Herberg and G. Winter, ‘Introduction’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making (Hart 2011) 2–4. 6 V. Heyvaert‚ Transnational Environmental Regulation and Governance (Cambridge University Press 2019) 30. See also C. Franzius, ‘Auf dem Weg zu einem Transnationalen Klimaschutzrecht?’ (2018) Zeitschrift für Umweltrecht 641. 7 R. Bourne, ‘Trans-National America’ (1916) 118 Atlantic Monthly 86; see also P. Enríquez, ‘Deconstructing Transnationalism: Conceptualizing Metanationalism as a Putative Model of Evolving Jurisprudence’ (2010) 43 Vanderbilt Journal of Transnational Law 1265, 1269. 8 See E. Rabel, Conflict of Laws. A Comparative Study, vol. 1 (2nd edn, Michigan Law 1958) 44–5.

70  Research handbook on transnational environmental law In the 1950s, international lawyer Phillip Jessup popularized the concept of transnational law.9 Compared to Rabel, he did not restrict transnational law to those rules dealing with conflicts of laws. In his view, the term comprehensively encompassed any national and international law regulating cross-border issues, including rules generated by private actors.10 His terminology thus refers to norms that are applied across borders, regardless of their origin.11 This concept opened up a more realist legal perspective on global normative phenomena.12 According to this conception, the law is primarily shaped and defined by those who apply it rather than by those who legislate. Consequently, under the heading of ‘transnational’, norms come into play that have not been dignified as law by a formal pedigree, but can be considered law from a functional perspective. In the 1990s, the term was once again taken up by authors to describe legal evolution in the context of globalization.13 This new strand of literature was influenced by a broad social science perspective on global institutions rather than by a narrow legal focus. In addition, the discussion was now also more closely related to public than to private international law. For instance, Anne-Marie Slaughter emphasized the emergence of transnational administrative and judicial cooperation.14 A renewed interest in legal pluralism also fuelled the interest in developing a less state-centred perspective on the law. Legal pluralists mainly point out that multiple normative systems, be they legal or quasi-legal, effectively control human behaviour in specific societies. Norms that govern these societies are being generated by both state and non-state actors. Pluralists base their observations on ethnologic fieldwork, nowadays focusing on modern Western contexts.15 For example, Gunther Teubner analysed the global ‘new law merchant’ or lex mercatoria and compared it to the fieldwork of Eugen Ehrlich. At the beginning of the 20th century, Ehrlich had analysed the plurality of orders (‘Living Law’) in the former Habsburg Empire, particularly the relationship of social norms and state-made laws in the remote province of Bukowina.16

G. Shaffer and C. Coye, ‘From International Law to Jessup’s Transnational Law, from Transnational Law to Transnational Legal Orders’ in P. Zumbansen (ed.), The Many Lives of Transnational Law: Critical Engagements with Jessup’s Bold Proposal (Cambridge University Press, forthcoming), available at https://​ssrn​.com/​abstract​=​2895159. 10 Philip Jessup, Transnational Law (Yale University Press 1956) 2. 11 For the difference between transnational origins and application of rules, see already G. Shaffer (ed.), Transnational Legal Ordering and State Change (Cambridge University Press 2012) 5. 12 G. Shaffer, ‘Legal Realism and International Law’, in J.L. Dunoff and M.A. Pollack (eds), International Legal Theory: Foundations and Frontiers (Cambridge University Press, forthcoming), available at https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3230401​#​#. 13 H. Koh, ‘The 1994 Roscoe Pound Lecture: Transnational Legal Process’ (1996) 75 Nebraska Law Review 181; H. Koh, ‘Why Transnational Law Matters’ (2006) 24 Penn State International Law Review 745; G. Teubner, ‘Globale Bukowina. Zur Emergenz eines Transnationalen Rechtspluralismus’ (1996) 15 Juristische Rundschau 255. 14 A.-M. Slaughter, A New World Order (Princeton University Press 2005). 15 E.g., J. Griffiths, ‘What Is Legal Pluralism’ (1986) 18 The Journal of Legal Pluralism and Unofficial Law 1; S. Engle Merry, ‘Legal Pluralism’ (1988) 22 Law & Society Review 869. From a comparative law perspective see particularly W. Menski, Comparative Law in a Global Context (Cambridge University Press 2006). 16 Teubner (n 13) 255. On Eugen Ehrlich see, for example, D. Nelken, ‘Eugen Ehrlich, Living Law, and Plural Legalities’ (2008) 9 Theoretical Inquiries in Law 443. 9

Mapping and disentangling transnational environmental governance  71 In this more recent phase, the term ‘transnational’ was given a new turn, which in certain respects brought it closer to the meaning envisioned by Randolph Bourne and his conceptualization of integration. Under this new perspective, transnational norms are not exclusively imposed on global society by the territorial state or jointly by groups of states, but are created in the virtual space through functional communities. ‘Transnational norms’ then usually refer to rules that are developed in response to the practical needs of involved practitioners or by ethical demands of an emerging global public. Against the background of the term’s complex history, it does not come as a surprise that even today there are different schools of ‘transnationalists’ that use the term differently. One school, primarily in the tradition of Rabel and Jessup, mainly focuses on private cross-border regulatory processes, such as the lex mercatoria.17 Another group of writers engaged in the discourse on global administrative law also discusses those and similar cross-border regulatory processes under the label of the transnational law.18 From this vantage point, transnational norms emerge from the cooperation of actors from the public sector who operate below the intergovernmental level. Examples of such actors include institutionalized administrative transboundary networks, associations of semi-governmental organizations, arbitration courts, public–private partnerships, and informal networks of judges, parliamentarians, officials or scientists.19 Some authors, who do not generally subscribe to the wide concept of transnational norm application advanced by Jessup, often regard European Union (EU) regulation and sometimes even international law as transnational.20 Regulations that have been produced with the substantial involvement of actors who are not state authorities, such as the European Commission or Parliament, are then regarded as transnational.21 As with many nascent concepts, transnational governance is mostly defined in the negative: non-state management of public goods. Without a base in state authority, the question remains as to why people should participate in such forms of governance or even obey transnational norms. One answer could be ‘consumer democracy’, namely, the market power of ethical consumption that requires producers to consider sustainability. However, apart from state authority and market power, there are other, subtler ways of influencing behaviour, for example by disseminating scientific knowledge or by holding people morally accountable. Therefore, it makes sense to acknowledge the role of civil society. This opens up possibilities to take the distinction between ‘bourgeois’ and ‘citoyen’ to the global level: beyond the state, people and organizations act politically. Even transnational corporations are no exception. On the contrary, they often strategically try to shape the rules that establish the framework for global

With reference to transnational law, G. Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in K.H. Ladeur (ed.), Globalization and Public Governance (Ashgate 2004). 18 For a discussion of the slightly different focus of global administrative law vs transnational law, see Heyvaert (n 6) 29–30. 19 For most of these examples see Slaughter, A New World Order (n 14). See also M. Schäferhoff, S. Campe and C. Kaan, ‘Transnational Public–Private Partnerships in International Relations: Making Sense of Concepts, Research Frameworks and Results’ (2009) 11 International Studies Review 451. 20 T. Etty, V. Heyvaert, C. Carlarne and others, ‘Editorial’ (2013) 2(1) Transnational Environmental Law 1. 21 Heyvaert (n 6) 30. 17

72  Research handbook on transnational environmental law markets.22 Without formal democratic institutions, public discourses on political, ethical, scientific and technical aspects of protecting global public goods flourish transnationally. In the case of climate protection, for example, the recent call for immediate action by demonstrating school children spread from Sweden to many other countries and puts politicians under pressure to act. Accordingly, Kenneth Abbot and Duncan Snidal have visualized transnational governance as situated in a triangle that spans between three poles: the state, firms, and civil society (non-governmental organizations (NGOs)) (Figure 5.1). This approach tries to overcome the idea that ‘transnational’ only refers to ‘non-state-governance’, which, again, is based on an overly simplistic ‘state vs market’ dichotomy. By displaying the full range of the triangle, transnational governance is not reduced to the private sphere of contractual relations and proprietary organization. Such a triangular framing also suggests that private lawmaking is often complemented by public pressure and state intervention in the pursuit of regulatory goals, particularly where they aim at generating and supporting public goods. However, public control over state and non-state governance is not a task exclusive to classical NGOs such as Greenpeace or Amnesty International. Rather, scientific, semi-public, and professional organizations which do not primarily pursue political or commercial objectives can also become involved, such as the Intergovernmental Panel on Climate Change (IPCC) or the International Union for Conservation of Nature (IUCN).

Figure 5.1

4

The (revised) governance triangle (after Abbott and Snidal 2009)

TRANSNATIONAL GOVERNANCE VS DOMESTIC, INTERAND SUPRANATIONAL LAW

After this brief survey, it is useful to sketch the ‘transnational’ in comparison with other categories such as domestic, inter- and supranational. For this mapping exercise, we distinguish public transnational governance from other governance mechanisms which reach out beyond 22 See for example, J. Braithwaite and P. Drahos, Global Business Regulation (Cambridge University Press 2000).

Mapping and disentangling transnational environmental governance  73 national borders. The most well-established instruments in this regard are of course those domestic laws that have extraterritorial effects, and international law, which currently mostly results from contractually ordered institutionalized cooperation between heads of state.23 Supranational institutions such as the European Commission have been provided with state-like authority, albeit on the basis of conferred powers. This enables them to initiate legislation and to adopt laws and decisions (to the extent it has been authorized by the European Parliament and the Council), which are directly binding on citizens of the Member States. Compared to traditional international law, supranational law is therefore less dependent on grounds for legitimacy that derive from the nation state. The requirements of consensus-based procedures to protect sovereignty are relaxed. Compared to other transnational governance mechanisms, supranational law is quite formalized. In our figure, we symbolize this by overlapping forms that still have the domestic state at their centre, but increasingly reach out to global society, which is composed of public civil society and private organizations and markets (see below, Figure 5.2). Public transnational governance and domestic, international and supranational law do not exist as separate, autonomous normative systems. Rather, there is close interaction between them and sometimes they overlap. Indeed, formal legal institutions often initiate informal transnational rule making. For example, international treaties often contain compromise formulae or leave important politically contentious questions open. In order to avoid a fragmented or even contradictory implementation practice, the process of interpreting vague international norms is often guided by implementation networks, expert commissions, or other transnational governance mechanisms, including the globally connected community of legal scholars that lead discourses on interpretation practices.24 In other cases, transnational governance mechanisms develop more or less independently from formal obligations under domestic or international law. The development of test guidelines and standards of good laboratory practice under the Organisation for Economic Co-operation and Development (OECD) can serve as an example.25 Sometimes, regulators also try to make use of private governance structures to promote public goods. For example, the EU Eco-Regulation is derived from earlier transnational standards of the International Federation of Organic Agriculture Movements (IFOAM).26 In either case, close interaction can result in a complex hybrid system of formal international, national, and transnational norms and institutions, which can hardly be disentangled. This further demonstrates the porosity of traditional distinctions. In Figure 5.2, this is symbolized by dashed or dotted lines. 23 In the present day, treaties have become the most important source of law ordering international relations. The International Court of Justice judge, Bruno Simma, referred to international agreements as the ‘workhorse of international law’, see B. Simma, ‘From Bilateralism to Community Interest in International Law (Volume 250)’ in Collected Courses of the Hague Academy of International Law (Brill Nijhoff 1994) 221ff. 24 While Art. 31 Nr. 3, lit. (a) and (b) of the Vienna Convention on the Law of Treaties highlights the formal legal mechanisms of a subsequent agreement or practice of states to promote a specific interpretation, Art. 38 I lit. (d) of the ICJ Statute refers to ‘teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law’. 25 M. Warning, Transnational Public Governance: Networks, Law and Legitimacy (Palgrave Macmillan 2009). 26 European Regulation (EEC) 2092/91 of the European Council of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs [1991] OJ L 198.

74  Research handbook on transnational environmental law In principle, interaction happens at all levels of regulation. For example, transnational governance can interact with domestic law if the latter is extraterritorially enforced by means of third-party certification. This happens, for example, in the case of the declaration of conformity with European Law (Conformité Européenne (CE)) or, similarly, with the declaration of conformity with the standards of the US Federal Communications Commission (FCC). Often, domestic manufacturers impose the legal requirements of their home jurisdictions upon overseas suppliers in systems of supply chain management. Another example is the significant involvement of NGOs in the drafting of guidelines for control of toxic substances issued by public authorities in various countries.27 Furthermore, there is cross-border cooperation of a primarily public-law nature, such as the informal coordination of authorities on the consistent implementation of environmental and planning legislation in specific regional infrastructure projects.28 Similarly, international law may become a point of reference for transnational norm development.29 The United Nations (UN) Global Compact features standards and governance projects for corporations worldwide.30 Similarly, private actors in the shipping sector have

Figure 5.2

The transnational governance ‘egg’

Warning (n 25) 203. M. Kment, Grenzüberschreitendes Verwaltungshandeln: Transnationale Elemente Deutschen Verwaltungsrechts (Mohr Siebeck 2010), especially 267ff. 29 Heyvaert (n 6) 6–9. 30 For further examples, addressed as the ‘orchestration’ of contributions to transnational governance by international organizations, see K. Abbott, P. Genschel, D. Snidal and others (eds), International Organizations as Orchestrators (Cambridge University Press 2015). 27 28

Mapping and disentangling transnational environmental governance  75 established standards to reach the goals of the Paris Agreement.31 The International Centre for Settlement of Investment Disputes (ICSID) is another example of transnational governance which has its point of departure in international law, found in the ICSID Convention. The actual settlement of disputes allows private arbitrators to come to binding decisions, however, which often significantly affect domestic law. It could therefore be argued that dispute settlement has evolved beyond its international source of legitimacy. Overlaps can be observed, for example, while EU law is generally characterized by supranational and intergovernmental procedures, transnational elements of direct networking between national administrations also play a significant role. A specific example is the implementation of EU law through the so-called Comitology Procedure: before the Commission can adopt implementing measures in furtherance of an EU legal act, it has to consult a committee of specialists of Member States’ administrations. The opinions and decisions developed within these expert committees are not formally binding, but have a strong mandatory force and are often adopted 1:1 by the Commission. Comitology is regarded as a ‘networked deliberative forum’ promoting ‘constructive cooperation and a non-hierarchical mode of decision-making’.32 The chapter emphasizes that transnational governance mechanisms can best be understood when considered from the perspective of more traditional and formal modes of government and law in which they are embedded and from which they have developed varying degrees of independence. In a nutshell, transnational governance mechanisms emerge from and interact with traditional and formal modes of government and law. Accordingly, transnational governance mechanisms cannot be analysed in isolation from these more specific normative phenomena. Analyses should thus be based on clear analytical distinctions. However, due to the many different mechanisms and forms of interaction, in practice these distinctions are sometimes fluid or blurred.

5

MAPPING THE FIELD OF GOVERNANCE STRUCTURES

The following section will try to sketch the broad range of transnational governance structures by drawing together actor-based and scale-based mapping approaches. Filling in the blank spaces of the elliptical figure, we distinguish between actor constellations that are purely corporate and economic in the bottom right segment of the figure (Section 5.1), civil societal and scientific in the top right segment (Section 5.2), and primarily attached to state institutions in the left segment (Section 5.3). Our figure will not include international or supranational organizations that have been assigned formal legislative powers independent from states (such as the UN Security Council or the European Commission). However, it will include some of the borderline cases which are in fluid transition from domestic, international, or supranational law to transnational governance.33

J. Scott, T. Smith, N. Rehmatulla and others, ‘The Promise and Limits of Private Standards in Reducing Greenhouse Gas Emissions from Shipping’ (2017) 29 Journal of Environmental Law 231. 32 M. Weimer, ‘No More Blame Game: Back to the Future of Comitology’ (Verfassungsblog, 18 February 2017), http://​verfassungsblog​.de/​no​-more​-blame​-game​-back​-to​-the​-future​-of​-comitology/​. See also M. Weimer, Risk Regulation in the Internal Market (Oxford University Press 2019). 33 Cf. the instructive ‘governance triangle’ with its locating of different transnational regulatory initiatives in K. Abbott and D. Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and 31

76  Research handbook on transnational environmental law 5.1

Companies and Economic Associations

In the course of globalization, social and economic processes increasingly create transboundary effects and are thus subjected to multiple political and legal orders. Different environmental rules and standards may weaken environmental law’s effectiveness. A central challenge is to bridge or to level out the differences in legal protection. In the absence of applicable international law rules, the task is sometimes taken over by non-state economic actors.34 Interactions between economically or legally independent firms or groups of companies (for example, a parent company and its subsidiaries, or individual subsidiaries or branches)35 are often shaped by voluntary environmental standards or codes of conduct,36 which often involve a commitment to third-party certification. There are many reasons why companies orient their actions towards sustainability in the sense of corporate social responsibility.37 Motivations can include, inter alia, savings by increasing resource efficiency, opening up new markets for sustainable products, improving public perception, avoiding liability, or averting state regulation.38 Yet, sometimes these strategies are criticized as ‘greenwashing’, as they are part of public image campaigns rather than providing any substantive improvements.39 Environmental rules, codes, and standards with transboundary effects are not only adopted by individual companies, but also by corporate associations. A well-known and firmly established example is the Responsible Care (RC) initiative of the International Council of Chemical Associations.40 This programme was initially developed in the US in response to the Bhopal disaster, which resulted in the deaths of several thousand people after an incident in a plant of a subsidiary of Union Carbide in 1984. The aim of the programme was to develop

the Shadow of the State’ in W. Mattli and N. Woods (eds), The Politics of Global Regulation (Princeton University Press 2009). 34 O. Dilling, M. Herberg and G. Winter, Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008); J. Friedrich, ‘Codes of Conduct’ in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press 2010) 3–27; G. Moore, ‘The Code of Conduct for Responsible Fisheries’ in E. Hey (ed.), Developments in International Fisheries Law (Brill 1999); D. Weissbrodt and M. Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regards to Human Rights’ (2003) 97 American Journal of International Law 901. 35 Dilling, Herberg and Winter (n 34) 3. 36 J. Friedrich, ‘Environment, Private Standard-Setting’ in R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2012); M. Herberg, Globalisierung und Private Selbstregulierung: Umweltschutz in Multinationalen Unternehmen (Staatlichkeit im Wandel, Campus 2007); H. Keller, ‘Codes of Conduct and their Implementation: The Question of Legitimacy’ in R. Wolfrum and V. Roeben (eds), Legitimacy in International Law (Springer-Verlag 2008) 219ff. 37 For further relevant questions, see G. Winter, ‘Transnationale Regulierung’ (2009) 8 APUZ 9–10. 38 O. Dilling, ‘Proactive Compliance? – Repercussions of National Product Regulation in Standards of Transnational Business Networks’ in O. Dilling, M. Herberg and G. Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 118–19. 39 O. Dilling, ‘From Compliance to Rulemaking: How Global Corporate Norms Emerge from Interplay with States and Stakeholders’ (2012) 13 German Law Journal 381, 404. See also N. Feinstein, ‘Learning from Past Mistakes: Future Regulation to Prevent Greenwashing’ (2013) 40 Boston College Environmental Affairs Law Review 229. 40 A. Prakash, ‘Responsible Care: An Assessment’ (2000) 39 Business & Society 183.

Mapping and disentangling transnational environmental governance  77 internal rules as well as to create organizational structures and resources to support member organizations in achieving specific environmental objectives.41 Similar initiatives emerged in a large number and variety, including, for instance, self-commitments by the tourism industry to protect Antarctica.42 In some cases, these self-commitments transcend individual sectors, such as the Business Charter on Sustainable Development of the International Chamber of Commerce in Paris.43 The latter is designed to ‘provide a practical framework including tools for businesses of all sectors and geographies to help them shape their own business sustainability strategy’.44 5.2

Standardization Organizations and Expert Commissions

Sustainability and environmental standards are also initiated and developed by a large number of societal actors who do not predominantly pursue profit-making interests. These actors include standard-setting organizations, civil societal actors (e.g., environmental or consumer groups and associations), and academics or representatives of certain professions (e.g., engineers or doctors). 5.2.1 Standardization organizations The International Organization for Standardization (ISO) with its standard for the certification of corporate environmental management (ISO 14001 et seq.) is a very well-known example of an influential transnational standard-setting body.45 This international body is in part composed of representatives of public bodies and in part of representatives of private standardization organizations of the member states. The latter, including for example the German Institute for Standardization (DIN), are usually bound by agreements with states or international organizations. While in its early days the ISO focused mainly on very technical standardization questions, it has increasingly turned to more politically charged regulatory matters, such as ethical consumption.46 In addition to the above-mentioned environmental management systems, in 2010 the ISO developed the ISO 26000 guide to social responsibility, which includes a chapter on environmental protection.47 Its aim is not to certify organizations according to detailed material standards, but to provide guidance, for example, by pointing out

I. Montiel, ‘Responsible Care’ in T. Hale and D. Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 328–9. See ICCA, Responsible Care, www​.icca​ -chem​.org/​responsible​-care/​. 42 See the visitor, decontamination, and wildlife watching guidelines of the International Association for Antarctic Tour Operators, IAATO, Guidelines and Resources, https://​ iaato​ .org/​ guidelines​ -and​ -resources. 43 See L. Thomas, ‘The Business Charter for Sustainable Development: Action beyond UNCED’ (1992) 1 RECIEL 325, 352ff. 44 The current version (2015) is provided at https://​cdn​.iccwbo​.org/​content/​uploads/​sites/​3/​2015/​01/​ ICC​-Business​-Charter​-for​-Sustainable​-Development​.pdf. 45 O. Perez, ‘Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law’ (2003) 10 Indiana Journal of Global Legal Studies 25; Winter (n 37). 46 Dilling (n 39) 381; C. Ruwet, ‘Towards a Democratization of Standards Development? Internal Dynamics of ISO in the Context of Globalization’ (2011) 5 New Global Studies 1. 47 K. Webb, ‘ISO 26000 Social Responsibility Standard as “Proto Law” and a New Form of Global Custom: Positioning ISO 26000 in the Emerging Transnational Regulatory Governance Rule Instrument Architecture’ (2015) 6 Transnational Legal Theory 466. 41

78  Research handbook on transnational environmental law best practices in terms of responsibility for transparent procedures, human rights and sustainable development. In contrast to corporate standards or standards set by economic associations, transnational sector-specific production standards have been developed along with stakeholders from outside the business sector. They concern not only procedural aspects (like organizational structures and process sequences), but also include detailed and substantial production requirements. These sustainability standards are particularly common when it comes to the use of natural resources in agriculture, forestry, aquaculture and fisheries. A prominent example is the standards produced by the Forest Stewardship Council (FSC).48 In this organization, representatives of companies, trade unions and environmental groups cooperate closely according to the three pillars of sustainability (ecology, social equity and economy). In addition to the material sustainability standards, it also developed procedures for independent certification and monitoring.49 Similar standards are developed by the Marine Stewardship Council (MSC). This organization was founded in 1996, originally by WWF and Unilever as main cooperation partners, after the collapse of the Grand Banks cod fishery. Just like the FSC, the MSC is a ‘non-state market driven’ governance programme.50 It uses an eco-label and a certification programme to tie the marketing of products to their sustainable production. Further cases, for example in the area of climate change governance, include the Gold Standard for assessing energy projects in the context of the Clean Development Mechanism as well as the carbon reporting standard developed through the Carbon Disclosure Project.51 5.2.2 Expert commissions In addition to the normative aspects of the sustainable use of natural resources, the establishment of environmentally sound standards has a cognitive dimension.52 Environmental law has given scientists and experts a leading role in the development of standards.53 Often, scientists and experts are the ones who identify, interpret and offer solutions to environmental problems. Because environmental research often transcends national borders, scientists and experts

48 P. Pattberg, ‘Forest Stewardship Council’ in T. Hale and D. Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 265ff. 49 E. Meidinger, ‘Multi-Interest Self-Governance through Global Product Certification Programs’ in O. Dilling, M. Herberg and G. Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 259; Keller (n 36) 219ff; see also E. Morgera, Corporate Accountability in International Environmental Law (Oxford University Press 2009). 50 F. Wijen and M. Chiroleu-Assouline, ‘Controversy over Voluntary Environmental Standards: A Socioeconomic Analysis of the Marine Stewardship Council’ (2019) 32 Organization & Environment 98, 100. 51 Regarding the Gold Standard see D. Bodansky, J. Brunnée and L. Rajamani, International Climate Change Law (Oxford University Press 2017) 185–6. Regarding the Carbon Disclosure Project, see D.C. Matisoff, D.S. Noonan and J.J. O’Brien, ‘Convergence in Environmental Reporting: Assessing the Carbon Disclosure Project’ (2013) 22 Business Strategy and the Environment 285–305. 52 T. Markus, ‘Changing the Base: Legal Implications of Scientific Criteria and Methodological Standards on what Constitutes Good Marine Environmental Status’ (2013) 2 Transnational Environmental Law 145. 53 P. Sands and J. Peel, Principles of International Environmental Law (3rd edn, Cambridge University Press 2012) 87–8.

Mapping and disentangling transnational environmental governance  79 are frequently part of cross-border networks, leading to the emergence of global scientific discourses.54 Three types of transnational scientific networking can be distinguished. First, some networks emerge in response to national or international public sector initiatives. Although they originate in state action, these scientific networks generally are characterized by a high degree of autonomy, both in terms of their task as objective advisor to states and their membership of scientists. Such networks include, for example, institutionalized groupings like the IPCC, the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES), the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), technical and legal working groups under international treaties, and ad hoc groups of experts specialized in specific areas that are convened for specific legislative procedures or implementation processes.55 Secondly, expert networks also include so-called hybrid organizations such as the IUCN. This body allows national authorities to network, so that it is strongly anchored in public structures. Additionally, it involves a large number of local and globally active nature conservation associations and thousands of scientists and experts. The IUCN addresses a wide range of environmental issues. It supports and funds research as well as projects on the ground, and organizes political and legal processes by bringing together governments, NGOs, international organizations and corporate actors to develop environmental concepts and strategies, best practices, legislation and treaties, for example, relating to protected areas56 or sustainable land use.57 The third category, which can be addressed as transnational scientific networking, includes those numerous networks that ultimately rest on autonomously created initiatives by scientists, engineers or other professions, often reflecting and reinforcing rules of appropriate behaviour for specific practices. An important global crystallization point for many different private initiatives is the International Council for Science, which convenes, inter alia, an interdisciplinary Committee on Problems of the Environment. In the field of environmental law, one could also mention the Environmental Law Network International and the European Environmental Law Forum.58 All of these networks and panels allow experts to come to a shared understanding and a common interpretation of environmental problems.59 Additionally, they develop scientific criteria and methodological standards to support their analytical work (hence, they are often

54 Transnational networks of experts in fact are not a new phenomenon, see C. Tietje, ‘History of Transnational Administrative Networks’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 23–37. 55 See Markus (n 52) 145–64. 56 See, for instance, IUCN, Guidelines for Applying Protected Area Management Categories (2013). 57 IUCN, World Soil Erosion and Conservation (1993); IUCN, Legal and Institutional Frameworks for Sustainable Soils – A Preliminary Report (2002); IUCN, Drafting Legislation for Sustainable Soils: A Guide (2004). 58 See, ELNI, www​.elni​.org/​; see also EELF, www​.eelf​.info/​. 59 On the governance effects of these institutions see T. Markus, H. Hillebrand, A.-K. Hornidge and others, ‘Disciplinary Diversity in Marine Sciences: The Urgent Case for an Integration of Research’ (2918) 75 ICES Journal of Marine Sciences 502; T. Markus, ‘Regulating Foreign Large-Scale Farmland Investments in Low Income Countries (“Land Grabbing”): Appraising Different Modes of Transnational Governance’ (2020) 5 International Yearbook of Soil Law and Policy, forthcoming.

80  Research handbook on transnational environmental law called ‘epistemic communities’).60 To this end, they collect, compile, interpret, process and prepare data for national or international regulatory processes, or publish the data themselves.61 These networks and commissions develop model rules, codes of conduct and standards, and exchange best practices. Through their collaboration and cross-border consultations, such networks contribute significantly to the design and consolidation of standards without direct binding effect and promote a global dissemination of normative requirements.62 5.3

Transnational Administrative and Judicial Networks

Cross-border networks of public actors can also produce rules or decisions which, like law, guide behaviour and establish expectations transnationally. According to the different functions of norm development, norm implementation, and conflict resolution, one can distinguish different forms of transnational management of environmental issues.63 5.3.1 Networks of government agencies In close proximity to epistemic communities, but with a stronger anchoring in the public sector, are the networks of transnational administrators. These networks are often established and coordinated under the auspices of international organizations and are mainly composed of representatives of national specialized authorities.64 Since they are only rarely influenced directly by politics, they may be classified as non-governmental.65 One example is the Cooperative Chemicals Assessment Programme (CoCAP – the current successor project of the High Production Volume Initiative), put together by the OECD. Within this framework, a network of national specialist authorities which collects and publishes information on hazardous substances has been established, taking into account self-imposed rules on test procedures and laboratory best practice.66 Other examples are the Globally Harmonized System (GHS)67 or the Codex Alimentarius Commission, an organization established by the World Health Organization (WHO) and the Food and Agriculture Organization (FAO).68 P. Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1; Markus (n 52). 61 Sands and Peel (n 53) 88. 62 M. Herberg, ‘Global Governance Networks in Action: The Development of Toxicological Test Methods at the OECD’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making (Hart 2011). 63 O. Dilling, M. Herberg and G. Winter, ‘Introduction: Exploring Transnational Administrative Rule-Making’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart 2011) 5–6. 64 Cf. generally C. Möllers, ‘Transnationale Behördenkooperation: Verfassungs- und Völkerrechtliche Probleme transnationaler administrativer Standardsetzung’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 351. 65 Winter (n 37) 11. 66 Warning (n 25). 67 G. Winter, ‘Transnational Administrative Comitology: The Global Harmonisation of Chemicals Classification and Labelling’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making (Hart 2011) 111–50. 68 See FAO and WHO, Codex Alimentarius: International Food Standards, www​.fao​.org/​fao​-who​ -codexalimentarius/​en/​. A. Herwig, ‘The Contribution of Global Administrative Law to Enhancing the Legitimacy of the Codex Alimentarius Commission’ in O. Dilling, M. Herberg and G. Winter (eds), Transnational Administrative Rule-Making (Hart 2011) 188f. 60

Mapping and disentangling transnational environmental governance  81 5.3.2 Harmonized administrative processes and best practices In addition to setting standards in relation to the maintenance of shared natural resources, transnational efforts are being made to ensure a uniform application and enforcement of existing environmental standards. In a grey zone between these two areas, cooperation also includes the identification and exchange of best practices, which has become an important instrument for the cross-border coordination of administrative practices.69 These are not instances of transnational standardization in a narrow sense but rather of norm application. The way in which the cooperative transnational implementation of international obligations can be achieved becomes apparent when one considers the example of city networks in the field of climate protection.70 In the past decade, cities have been identified as major institutional actors who can contribute significantly to environmental protection, in particular to global climate protection.71 Examples abound of cities from all around the world that act within the framework of their respective competencies to protect the climate. Individual actions and climate programmes as well as legislation deal with, among other things, climate-friendly urban and traffic development, waste disposal services, energy-efficient construction planning and regulation, and the use of renewable energies.72 In addition, cities active in climate protection are increasingly networking transnationally with regard to their protection and adaptation efforts. These include, in particular, the activities of the World Mayors Council on Climate Change, the C40 Cities Climate Leadership Group and the Local Governments for Sustainability Initiative (ICLEI).73 Within the framework of these networks, possibilities for urban climate protection are identified and the exchange of best practices is organized. The resulting resolutions and normative guidelines are often implemented in political strategies, action programmes or legislation at the city level, but in order to achieve their goals, cities are also active at higher political levels, particularly the international level.74

H. Dickerson, ‘Best Practices’ in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press 2010). 70 See e.g., M. Finck, ‘Above and Below the Surface: The Status of Sub-National Authorities in EU Climate Change Regulation’ (2014) 26 Journal of Environmental Law 443. 71 H. Bulkeley, Cities and Climate Change (Routledge 2013). See also WBGU, ‘Humanity on the Move: Unlocking the Transformative Power of Cities’ (WBGU 2016), www​.wbgu​.de/​fileadmin/​user​ _upload/​wbgu/​publikationen/​hauptgutachten/​hg2016/​pdf/​wbgu​_hg2016​_z​_en​.pdf; OECD, ‘Competitive Cities and Climate Change’ (OECD 2008), www​.oecd​.org/​cfe/​regional​-policy/​44232251​.pdf; J. Corfee-Morlot, L. Kamal-Chaoui, M.G. Donovan and others, ‘Cities, Climate Change and Multilevel Governance’ (2009) OECD Environment Working Papers 14/2009, www​.oecd​.org/​regional/​regional​ -policy/​44232263​.pdf. In 2011, for instance, globally 75 per cent of final energy was consumed in cities, IIASA, ‘Progress Report 2009’ (IIASA 2010), www​.iiasa​.ac​.at/​web/​home/​resources/​publications/​ ProgRep09​-web​.pdf. It is projected that by 2050 the share of the world population living in urban areas will increase to about 69 per cent (of the then 9 billion people), which will consequently also increase the share of urban emissions, WBGU (n 71) 58. 72 K. Kern and G. Alber, ‘Governing Climate Change in Cities: Modes of Urban Climate Governance in Multi-Level Systems’ (OECD International Conference ‘Competitive Cities and Climate Change’, Milan, 9–10 October 2008), http://​search​.oecd​.org/​cfe/​regional​-policy/​50594939​.pdf, 171ff; WBGU (n 71) 267–9; Anna-Lisa Müller, Green Creative City (UVK 2013). 73 H. Bulkeley, ‘Cities and the Governing of Climate Change’ (2010) 35 Annual Review of Environment and Resources 229. 74 J. Lin, Governing Climate Change – Global Cities and Transnational Law Making (Cambridge University Press 2018); L. Andonova, M. Betsill and H. Bulkeley, ‘Transnational Climate Governance’ 69

82  Research handbook on transnational environmental law Parallel to this public transnational networking, private or semi-private transnational initiatives emerge in the field. They play a key role in the ecological certification of entire cities or individual subsectors, for instance, in port development (‘green ports’).75 Because of their regulatory, administrative and financial powers, they are crucial actors and addressees of transnational best practices in the area of climate protection. In addition, they can now register their climate actions in the Non-State Actor Zone for Climate Action platform toward the achievement of the climate protection targets laid down in the Paris Agreement.76 The transnational implementation and control of environmental requirements can also take advantage of transnational administrative networks. The highest degree of institutionalization can be found in the network for the Implementation and Enforcement of Environmental Law (IMPEL).77 This network consists of the environmental authorities of the EU Member States, EU candidate countries, the Member States of the European Economic Area (EEA) and the European Free Trade Area (EFTA). IMPEL was founded in 1992 with the aim of reducing implementation deficits in EU environmental law. Some key goals are the development of a common problem-consciousness, the development of institutional capacities, mutual peer review, exchange of information and experience about the implementation of law, cooperation in the implementation of international law, and improvements in the practicability and enforceability of EU environmental law.78 Transnational instruments can also contribute to the extraterritorial implementation of domestic law, including EU environmental law. This has become particularly evident in the case of the import of biomass, which, for example, plays an important role in the German energy transition policy (Energiewende).79 Since the cultivation of energy crops in emerging and developing countries often creates social and ecological problems, sustainability criteria and corresponding certification schemes were required.80 To this end, sustainability criteria as defined in Article 29 of the Directive (EU) 2018/2001 on the promotion of renewable energies must be taken into account along the entire value chain.81 In particular, the production must (2009) 9 Global Environmental Politics 52; S. Bouteligier, Cities, Networks, and Global Environment Governance: Spaces of Innovation, Places of Leadership (Routledge 2013). 75 See, e.g., the certification under the ‘Port Environmental Review System (PERS)’, which was developed by the Sea Ports Organization and is implemented by Lloyd’s Register. See, ESPO, www​ .ecoports​.com/​. 76 UNFCCC, Decision 1/CP.21, paras 117, 133–6; S. Chan, C. Brandi and S. Bauer, ‘Aligning Transnational Climate Action with International Climate Governance: The Road from Paris’ (2016) 25 RECIEL 238. 77 M. Angelov and L. Cashman, ‘Environmental Inspections and Environmental Compliance Assurance Networks in the Context of European Union Environment Policy’ in M. Faure, P. De Smedt and A. Stas (eds), Environmental Enforcement Networks: Concepts, Implementation and Effectiveness (Edward Elgar 2015); M. Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2nd edn, Routledge 2015) 546ff. 78 See the network’s webpage, IMPEL, www​.impel​.eu/​about​-impel/​. 79 BMU and BMEL, Nationaler Biomasseaktionsplan für Deutschland: Beitrag der Biomasse für eine nachhaltige Energieversorgung (BMU and BMEL 2010) 2. 80 A. Schmeichel, Towards Sustainability of Biomass Importation. An Assessment of the EU Renewable Energy Directive (Europa Law Publishing, 2014); C. Glinski, ‘Certification of the Sustainability of Biofuels in Global Supply Chains’ in P. Rott (ed.), Certification – Trust, Accountability, Liability (Springer 2019) 163–85. 81 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, [2009] OJ L140/16.

Mapping and disentangling transnational environmental governance  83 consider displacement effects as well as the protection of biodiversity and minimum social standards. Certification also fulfils a function as a transnational control of implementation, and is typically carried out by private auditors subject to recognized standards.82 5.4

Transnational Arbitration

In addition to the development of general norms and the cooperation between authorities in the implementation and application of legal prescriptions, transnational structures play a role in the judicial resolution of conflicts through transnational arbitration in cases of conflict between states and foreign private investors.83 Usually the International Centre for the Settlement of Investment Disputes (ICSID), established by the World Bank, or the Arbitration Institute of the Stockholm Chamber of Commerce provides for arbitration, or in rare cases investment treaties provide for bespoke arbitration arrangements. Their jurisdiction and procedures are governed by international law, but their staffing is in many cases ad hoc and determined by the non-state parties to the conflict. Negotiations are generally not public (although many decisions are now available online).84 Private arbitrators come to binding decisions on cross-border issues and have a decisive influence on the development of law of the participating state.85 These practices have raised widespread concerns that dynamic environmental regulation, which sometimes has to respond flexibly to new challenges, may be obstructed through arbitral decisions that are geared towards the protection of investor rights and the elimination of obstacles to trade. Eventually, corporate actors might be allowed to maintain low-cost but environmentally harmful production if they have to be compensated for state countermeasures. Particularly in conjunction with strict austerity policies, this practice may deter the adoption of effective environmental regulations able to react to industrial developments, which impacts negatively on the environment.86 In addition, the status quo-oriented protection of investors’ rights may contravene the polluter pays principle and lead to an unjust distribution of environmental costs within society.

A. Schmeichel (n 80) 181ff. Seminal, A. von Bogdandy and I. Venzke, In Whose Name? A Public Law Theory of International Adjudication (Oxford University Press 2014). 84 Cf. M. Krajewski, ‘Umweltschutz und Internationales Investitionsschutzrecht am Beispiel der Vattenfall-Klagen und des Transatlantischen Handels- und Investitionsabkommens (TTIP)’ (2014) Zeitschrift für Umweltrecht 396, 398. 85 Ibid 401; it is feared that imminent compensation payments for damage will prevent states from implementing certain environmental protection measures. See, for instance, T.L. Slater, ‘Investor– State Arbitration and Domestic Environmental Protection’ (2015) 14 Washington University Global Studies Law Review 131; Z. Douglas, ‘The Enforcement of Environmental Norms in Investment Treaty Arbitration’ in P.-M. Dupuy and J.E. Viñuales (eds) Harnessing Foreign Investment to Promote Environmental Protections – Incentives and Safeguards (Cambridge University Press 2013) 415–44; K. Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge University Press 2009); G. Van Harten, Investment Treaty Arbitration and Public Law (Oxford University Press 2007); E. Neumayer, Greening Trade and Investment (Taylor & Francis 2001). 86 Usually called the ‘chill effect’, Krajewski (n 84) 398. 82 83

84  Research handbook on transnational environmental law

6

THE INSTITUTIONAL CONTEXT OF TRANSNATIONAL GOVERNANCE

Transnational governance can be understood best when its institutional context is considered. Many of its expressions have indeed been described as ‘indirect regulation’. This means that states or international institutions use intermediaries to solve problems that would otherwise lie beyond their reach. This understanding, however, underestimates the independent momentum of transnational governance by simply regarding it as another instrument to further governmental regulatory policies. Rather, the interactions of transnational governance structures with established political institutions and state-based forms of environmental law are quite complex.87 National, inter- and supranational law can form various relationships by initiating, recognizing, integrating, limiting or modifying transnational norms.88 An example of transnational governance structures initiated by EU law can be observed in the field of product-related regulation. For example, according to the Directive concerning the restriction of the use of certain hazardous substances in electrical and electronic equipment (Directive 2011/65/EU), it usually is the responsibility of importers or manufacturers to ensure compliance of the products with environmental and safety standards. This also applies to producers who assemble parts delivered by overseas suppliers. To fulfil their responsibility, manufacturers have developed corporate structures of compliance control which extend beyond national and EU borders. These structures can equally serve as a platform that is used for genuinely corporate requirements of a transnational nature.89 Sometimes, industrial associations take up the task of developing common standards, which may in turn influence EU or national regulation.90 State regulation may also bestow credibility upon voluntary standards of the private sector which are in global use. This especially applies to organic farming, eco-friendly production and fair trade, and may also include environmental and work safety standards. The goal is to help consumers discern which of the many private eco-standards can be taken seriously and which are mere PR stunts. An example of such a conditional endorsement of corporate self-regulatory standards is given in the Ecodesign Directive 2009/125/EC. Its Annex VIII lists nine criteria for legitimate and effective mechanisms of self-regulation, including open participation, added value in terms of environmental effects compared to the status quo, clearly defined quantitative goals and effective monitoring. According to Articles 15 and 17 of the Ecodesign Directive, self-regulatory measures of producers or importers may then substitute formal law enforcement. In the public sector, transnational guidelines often serve to harmonize administrative practices across national borders. This is particularly evident within the EU, where the common market calls for equal treatment by the competent public authorities of different Member Cf. the social scientific research into the transnational aspect of economic governance, B. Eberlein, K.W. Abbott, J. Black and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’ (2013) 8 Regulation and Governance 21. 88 See, for instance, G. Teubner and A. Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2006) 25 Michigan Journal of International Law 999. 89 Dilling (n 39). 90 A. Lindenthal, ‘Transnational Management of Hazardous Chemicals by Interfirm Cooperation and Associations’ in O. Dilling, M. Herberg and G. Winter (eds) Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 123. 87

Mapping and disentangling transnational environmental governance  85 States. Another purpose of harmonization can be aligning technical or scientific requirements. For example, CoCAP depends on standardized data, so that datasets from different countries can be compared and aggregated. Therefore, transnational standards for good laboratory practice have to be observed for testing and evaluating chemicals regardless of their non-binding nature.91 In general, the relevance and effects of these usually non-binding forms of transnational governance depend on the significance that is attached to them within different national administrations. As domestic and supranational law are limited to their territorial jurisdictions, they cannot give transnational governance a comprehensive institutional framework. Therefore, international law is considered to be a promising candidate for the orchestration or even constitutionalization of transnational law. This is especially so as international law no longer solely addresses states, but is increasingly structuring the behaviour of non-state actors.92 However, international law itself is fragmented into regimes that have treaties with various and often conflicting objectives. An often-invoked example is world trade law with its links to transnational governance; while the General Agreement on Tariffs and Trade (GATT) and other World Trade Organization (WTO) agreements such as the one on Sanitary and Phytosanitary Measures (SPS) and Technical Barriers to Trade (TBT) primarily serve to promote free trade, they also have a huge environmental impact.93 These treaties often invoke ‘international standards’. As these are understood in a broad sense, in practice, they open up the possibility of bringing transnational standards into adjudication. The food standards of the Codex Alimentarius Commission are, for instance, recognized as international standards and are therefore binding under WTO law according to Articles 2.4 and 2.5 TBT as well as Articles 3.1 and 3.2 SPS: compliance with the standards by the contracting states results in the assumption that there is no unlawful barrier to trade.94 International courts frequently refer to the jurisprudence of other international courts and bodies in other matters under international law.95 This applies in particular to cases dealing with situations or problems courts deem comparable.96 In addition, national courts increasingly

Warning (n 25) 78. Heyvaert (n 6) 221. 93 See for example T. Büthe, ‘Institutionalization and Its Consequences’ in T. Halliday and G. Shaffer (eds), Transnational Legal Orders (Cambridge University Press 2015). 94 WTO Apellate Body, European Communities – Trade Descriptions of Sardines (DS231), WT/ DS231/AB/R 26 September 2002. 95 See, for example Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003 161, 182–3. Referencing to other courts has been discussed under various terms, such as ‘cross-referencing’, ‘cross-fertilization’, ‘borrowing among courts’, ‘transnational communication of courts’, ‘dialogue of courts’, etc. See, for example, T. Treves, ‘Cross Fertilization between Different International Courts and Tribunals: The Mangouras Case’ in H.P. Hestermeyer, D. König, N. Matz-Lück and others (eds), Coexistence, Cooperation, and Solidarity – Liber Americorum Rüdiger Wolfrum, vol. 2 (Brill 2012) 1787–896; A.-M. Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review’ 99. For the prevailing interpretation of, in particular, Art. 31(3)(c) Vienna Convention on the Law of Treaties, see C. McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(C) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279. 96 See also G. de Búrca, ‘After the EU Charter of Rights: The Court of Justice as a Human Rights Adjudicator’ (2013) 20 Maastricht Journal of European and Comparative Law 168. 91 92

86  Research handbook on transnational environmental law refer to the interpretation given to international norms by the domestic courts of other states.97 Although this initially occurred only ad hoc and in isolated cases, an increasing institutionalization can now be observed through the formation of transnational judicial networks.98 In the area of environmental law, the European Forum of Judges for the Environment is one example. Its explicit objective is ‘to promote the enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law, by exchanging judicial decisions and by sharing experience in the area of training in environmental law’.99 The institutional context can also set limits or define requirements for transnational governance. This already becomes clear in some of the examples introduced above. In response to constitutional problems, non-conventional, non-state constitutional norms arise within the field of transnational governance.100 Thus, fundamental rights are being discussed at the transnational level, which target, for instance, issues such as workplace safety or the right to participate and influence the substantial content of codes of conduct developed and used by multinational corporations. Similarly, meta-norms are defined, such as ISO 26000 on social responsibility of both business and public sector organizations, which governs the procedure of rule making, i.e., by requiring basic forms of participation of concerned parties. Both requirements defined by the institutional context and meta-rules, which emerge transnationally, are part of a process of constitutionalization or re-embedding that limits and controls transnational governance. In our egg-shaped diagram, this is symbolized by an outer layer, the ‘shell’ of the egg.

7

CONCLUSION AND OUTLOOK

Finally, we would like to highlight some of the key findings of this chapter. First, we share the common view that the term transnational indicates that something lies beyond the system of the nation state or crosses its borders. Secondly, we suggest distinguishing public transnational governance from other forms of regulation which reach out beyond national borders, be it domestic law with extraterritorial effects, international law or supranational law. To distinguish does not mean, however, to ignore overlaps and close interactions. Indeed, formal legal institutions often open up new forums for transnational governance, thereby initiating transnational rule making. In other cases, they use already existing transnational governance mechanisms to reach their own regulatory goals. In both cases, close interactions can result in a complex amalgam. Accordingly, we understand transnational governance as norms, procedures and decisions that direct social processes in more than one country, but which are not formally based on sovereign rights of governments, or on formally delegated authority, be it at the international or supranational level. They are rather established by private, civil society 97 In this regard, Roberts invokes the notion of ‘comparative international law’. See A. Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 International & Comparative Law Quarterly 57. 98 Slaughter (n 14), 65ff.; E. Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 Journal of Legal Studies 547. 99 EUFJE, www​.eufje​.org/​index​.php/​en/​. 100 G. Teubner, H. Lindahl, E. Christodoulidis and others ‘Debate and Dialogue: Constitutionalizing Polycontexturality’ (2011) 20 Social and Legal Studies 209.

Mapping and disentangling transnational environmental governance  87 or administrative actors outside parliamentary or governmental competencies and control. Thirdly, we provisionally and tentatively identify and categorize several existing and emerging transnational governance structures, namely, companies and associations of companies, standardization organizations and expert commission, networks of government agencies, and transnational dispute settlement bodies. Fourthly, we emphasize that transnational governance can be understood best when its institutional context is considered. It allows observers to see that transnational governance mechanisms to some extent develop inside and rely on existing modes of government, that they also have an independent momentum, and that they interact in many different ways with established political institutions and state-based forms of environmental law. The aim of this chapter is to insist on terminological and conceptual clarity in dealing with transnational environmental governance. Hopefully, this has been achieved, at least to some extent. At best, this approach will facilitate locating and connecting the many different ideas about emerging or changing forms of environmental governance beyond the Westphalian state- or interstate-centred paradigm. This includes other approaches to transnational environmental governance as well as emerging concepts such as global environmental law, environmental constitutionalism, or comparative environmental law.101 Highlighting the differences between traditional and formal modes of environmental governance on one side and new or changing forms on the other will also hopefully provide a better understanding of the connections existing between them. Such a comparison and classification of the different forms of transnational environmental governance should not just be regarded as a purely academic exercise: it will also help to acquire a more reflective view on the risks and chances of these new governance modes in achieving environmental objectives worldwide.

For a broader understanding of transnational environmental law, see, for example, C. Franzius, ‘Das Paris-Abkommen zum Klimaschutz – Auf dem Weg zum transnationalen Klimaschutzrecht?’ (2017) Zeitschrift für Umweltrecht 515. Regarding environmental constitutionalism see, for example, K. Bosselmann, ‘Global Environmental Constitutionalism’ (2014) 12 Revista Opinião Jurídica, Fortaleza 372; see also L.J. Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart 2016); also L.J. Kotzé, ‘Arguing Global Environmental Constitutionalism’ (2012) 1 Transnational Environmental Law 199. Regarding global environmental law, see, for example, T. Yang and R.V. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615; see also E. Hey, ‘Global Environmental Law and Global Institutions: A System Lacking “Good Process”’ in R. Pierik and W. Werner (eds), Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press 2010) 45. Regarding comparative environmental law see particularly the contributions in E. Lees and J.E. Viñuales (eds), Oxford Handbook on Comparative Environmental Law (Oxford University Press 2019). 101

6. Regulatory instruments of transnational environmental governance Jerneja Penca

1 INTRODUCTION Regulatory instruments (tools, techniques or approaches) are an indicator and an expression of transnational regulation. Their diversification is probably the most overt sign of the transformation in environmental governance over the past few decades. The fast-changing landscape of transnational environmental governance, the growing density of norms, the increasing transnational impact of actors other than states are all reflected in the great variety and diversification of regulatory instruments that are designed to protect or manage natural resources and environment. The voluntary commitment to increasing circularity and resource efficiency by a group of leading plastic producers,1 a frog seal on coffee, tea, chocolate or paper products,2 the REDD+ scheme for governance of forests and climate change,3 or the Association of Southeast Asian Nations’ (ASEAN’s) strategies to prevent and mitigate haze pollution4 are just some of the entry points to the richness and complexity of the study of transnational environmental governance. Jointly, they are also sharp reminders of the difficulty of systematizing knowledge about the processes through which actors seek to govern environmental behaviour today. However, the study of regulatory instruments continues to represent a lens through which to examine the field of transnational governance. The scope of examination can be as wide or as narrow as the scholarship decides. For much of the scholarship the very terminology of ‘instruments’ or ‘tools’ has been interpreted as an invitation to approach governance processes from a particular perspective. It has entailed a focus on the means rather than the ends of regulatory policy, on the effectiveness of selected measures, on the similarities in their design and the potential for their replication. This perspective was inherited from the analyses of domestic environmental policies, rather than constructed in response to the specific context of

1 PlasticsEurope, Plastics 2030: PlasticsEurope’s Voluntary Commitment to increasing circularity and resource efficiency (2018), www​.plasticseurope​.org/​application/​files/​7215/​1715/​2556/​ 20180116121358​-PlasticsEurope​_Voluntary​_Commitment​_16012018​_1​.pdf. 2 Rainforest Alliance, www​.rainforest​-alliance​.org. 3 REDD+ stands for Reducing emissions from deforestation and forest degradation and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries; see C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016). 4 S. Tay, C. Chen Lee, and L. Xin Yi, ‘ASEAN Approaches to Environmental Protection and Sustainable Development: Cooperating across Borders, Sectors, and Pillars of Regional Community’ in S. Tay and J. Puspadewi Tijaja (eds), Global Megatrends: Implications for the ASEAN Economic Community (ASEAN Secretariat 2017) 102.

88

Regulatory instruments of transnational environmental governance  89 transnational regulation. Adequately or not, this approach was selected in devising a response to governance changes taking place in the transnational sphere. The end of the 20th century brought about the hybridization and transformation of authority. More and more actors other than states claimed governance authority and they did so in ever new ways. For political scientists, this diversity of attempts at social control translated into an interest in the heterogeneity of actors.5 Legal scholars, in turn, were intrigued by the types of approaches, tools or instruments that these new actors produced. International legal scholars struggled hard with coming to grips with the loss of the state’s exclusivity in lawmaking. Defining the legal scholar’s disciplinary contribution to the study of transnational governance was somewhat challenging. To extend the ‘instrument choice’ debate from national environmental law contexts to the transnational plane was one way to resolve this impasse and to develop a rudimentary strategy towards organizing the field of transnational governance as a legal discipline.6 Only gradually has the field of transnational environmental regulation begun to develop a distinctive analytical approach, incorporating issues of representation, distribution and interests into its examination of regulatory instruments and strategies. This has added a layer of nuance, innovation and richness to the straightforward domain of listing, comparing and evaluating fixed notions of ‘instruments’. This coming of age has required a close interaction between empirical and conceptual approaches. This chapter provides an overview of existing research regarding transnational regulatory instruments and outlines a desirable future research agenda. The field is extremely broad – covering the tools used in relation to all aspects of management of natural resources and environmental risks, relating to both terrestrial and marine ecosystems. It is therefore understandable that the chapter will not be able to provide an exhaustive list of instruments and offer a full analysis of each. Rather, it maps transnational environmental regulatory approaches and highlights the need for examining them in a way that goes beyond filling in the existing categories or producing new ready-made transnational toolboxes. Indeed, as instances of transnational regulation are on a steep rise, much more attention needs to be paid to the relation between instruments and governance structures. The chapter calls for scholarship on instruments to increase its engagement with their critique, alternatives or embeddedness. This does not necessarily imply that scholarship should not look at transnational environmental governance through the lens of its instruments. However, the scope of this lens is of key significance; it needs to resist the narrow, technical and non-normative approach. After this introduction, the chapter contextualizes the rise of transnational regulatory instruments (Section 2). The next two sections offer an overview of how transnational

5 I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press 1992); C. Cutler, V. Haufler and T. Porter (eds), Private Authority and International Affairs (State University of New York Press 1999); A.-M. Slaughter, A New World Order (Princeton University Press 2004). 6 R. Stewart, ‘Instrument Choice’ in D. Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007); N. Keohane, R. Revesz and R. Stavins, ‘The Choice of Regulatory Instruments in Environmental Policy’ (1998) 22 Harvard Environmental Law Review 313; J. Freeman and C. Kolstad, ‘Prescriptive Environmental Regulations versus Market-Based Incentives’ in J. Freeman and C. Kolstad (eds), Moving to Markets in Environmental Regulation: Lessons from Twenty Years of Experience (Oxford University Press 2006) 5; R. Hahn and R. Stavins, ‘Economic Incentives for Environmental Protection: Integrating Theory and Practice’ (1992) 82 The American Economic Review 464.

90  Research handbook on transnational environmental law instruments have been conceived, both initially (Section 3) and more recently (Section 4). All such attempts at taxonomies or analyses of various instruments focus on their legitimacy, accountability, effectiveness and efficiency aspects. The subsequent section (Section 5) proposes the consolidation of the more socially embedded research agenda for the future study of transnational regulation strategies, which requires opening up of core notions, such as ‘rules’ or ‘standards’. Section 6 discusses, through a case study of the fisheries sector, how the chosen conceptual range will impact on the scope of initiatives that are examined. The conclusion (Section 7) distils the key message which is that the research of transnational environmental law needs to reject a narrow-minded interpretation of instruments (and other legal categories) in order to comprehend, rather than only observe, environmental governance.

2

THE RISE OF REGULATORY INSTRUMENTS OF TRANSNATIONAL GOVERNANCE

Research about transnational regulatory instruments flourished against the background of a number of interrelated trends. Key among them were increased transnational action by actors other than states (transnationalization) and an expanding use of law in both scope and depth (legalization). Quite contrary to the expectations of deregulation (or no regulation), a combination of these two phenomena buttressed a transformation of regulatory patterns.7 These transformations were and continue to be particularly visible in the field of environmental protection. Plastics, for instance, is an excellent example of a domain that was previously lightly or not regulated, and where existing subtle forms of regulation are being replaced by ever firmer regulation, produced by all sorts of actors.8 Faced with a need to define transnational regulation, scholars adjusted theories of regulation to the contemporary age,9 reinvented theories of regulation tailored to the transnational context10 and replaced the notion of regulation with the notion of (new) governance.11 Contemporary definitions of transnational regulation invariably seek to highlight the demise of 7 J. Jordana and D. Levi-Faur, ‘The Politics of Regulation in the Age of Governance’ in J. Jordana and D. Levi-Faur (eds), The Politics of Regulation (Edward Elgar 2004), 1–30; P. Drahos and J. Braithwaite, ‘The Globalisation of Regulation’ (2001) 9(1) Journal of Political Philosophy 103. 8 K. Raubenheimer, A. McIlgorm and N. Oral, ‘Towards an Improved International Framework to Govern the Life Cycle of Plastics’ (2018) 27(3) RECIEL 210; P. Dauvergne, ‘The Power of Environmental Norms: Marine Plastic Pollution and the Politics of Microbeads’ (2018) 27 Environmental Politics 579; J. Penca, ‘European Plastics Strategy: What Promise for Global Marine Litter?’ (2018) 97 Marine Policy 197. 9 R. Baldwin, C. Scott and C. Hood, ‘Introduction’ in R. Baldwin, C. Scott and C. Hood (eds), A Reader on Regulation (Oxford University Press 1998) 3–4; B. Morgan and K. Yeung, An Introduction to Law and Regulation (Cambridge University Press 2007); C. Parker and J. Braithwaite, ‘Regulation’ in M. Tushnet and P. Cane (eds), Oxford Handbook of Legal Studies (Oxford University Press 2005). 10 J. Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1; V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 205. 11 G. De Búrca and J. Scott (eds), Law and New Governance in the EU and the US (Hart 2006); D. Trubek and L. Trubek, ‘New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation’ (2006) 13 Columbia Journal of European Law 539; K. Abbott and D. Snidal, ‘Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal of Transnational Law 501; O. Lobel, ‘The Renew

Regulatory instruments of transnational environmental governance  91 binding, hierarchical and top-down rules as a means of steering the economy. They note a rise of decentralized, participatory, collective and more open-ended decision making. Regulation in this ‘new era’ is understood as authoritative standard-setting, often accompanied by some kind of monitoring and sanctioning.12 Despite an initial resistance towards spreading the notion of regulation so broadly, scholars have explicitly come to recognize forms of self-regulation or non-state regulation,13 and even non-intentional regulatory activities.14 The geographical scope of these activities has broadened, too. But while cross-border impacts have become a norm, regulatory instruments often do not extend across the entire world. As a result, the term ‘transnational’ is often preferred to the term ‘global’. Sometimes the coverage of regulatory instruments is limited to a group of similar countries (e.g., developed countries), sometimes to a certain region (e.g., countries of the European Union (EU)), and other times to actors in a certain sector (e.g., maritime transport). Set against the backdrop of multilevel, multi-actor, fast-paced and often unpredictable regulatory activity, the question of what characterizes the instruments of transnational regulation has been difficult to answer. Unlike defining sources of international law on the basis of Article 38 of the Statute of the International Court of Justice, transnational regulatory instruments are far more difficult to classify. Deprived of an automatic connection to the state’s coercive apparatus, it is difficult to identify shared characteristics of transnational regulatory instruments. If anything, their regulatory mode can be defined by their lack of coerciveness and greater softness. Transnational regulation is known for innovation in design, flexibility in application and a high degree of persuasiveness. The new regulatory approach is seemingly more relaxed and adjustable, and conducive to various interpretations. It is less coercive and can also be voluntary. Rules, laws and directives traditionally denoting the presence of ‘law’ have broadened to include legally non-binding ‘soft’ rules. But ultimately, how can we identify transnational environmental regulatory instruments? Transnational regulation encompasses examples as diverse as International Organization for Standardization (ISO) 14000 standards issued to guide companies’ environmental responsibilities; contracts guiding commodity supply chains; ‘Equator principles’ as standards for project finance adopted by financial institutions; self-imposed codes of conduct by industry associations (‘Roundtables’) on the production of sustainable palm oil, responsible soy or sustainable biofuels; companies’ sustainability reporting; non-governmental organization-led certification programmes; local authorities’ commitments to energy efficiency and use of renewables, and many others. It is evident that there are too many instances where authority is exercised across borders to list them all. They often involve forms of social control other than written rules. Multilateral environmental treaties, such as the United Nations Framework Convention

Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought’ (2004) 89 Minnesota Law Review 342. 12 C. Koop and M. Lodge, ‘What Is Regulation? An Interdisciplinary Concept Analysis’ (2017) 11(1) Regulation and Governance 95. 13 Black (n 10) 22; S. Bernstein and B. Cashore, ‘Can Non-State Global Governance Be Legitimate? An Analytical Framework’ (2007) 1 Regulation & Governance 347. 14 Baldwin, Scott and Hood (n 9) 4.

92  Research handbook on transnational environmental law on Climate Change,15 the Minamata Convention on Mercury16 or the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters17 should be added to that picture, as they often impact on or interact with transnational private regulation.18 Listing some of the instances of instruments provides a better idea of the breadth of transnational regulatory instruments; however, it does not answer the question of how to examine them. Yet, the choice of analytical approach impacts on the understanding of transnational environmental governance and, ultimately, on its transformative power.

3

SCHOLARLY CLASSIFICATIONS OF REGULATORY INSTRUMENTS: A CRITICAL ASSESSMENT

In order to facilitate the systematization of the proliferating activities, scholarship has produced various categorizations of regulatory instruments. One approach has been to draw a division between private and public instruments, based on the author of the norm.19 As a result of this division, concerns have been raised about the legitimacy and accountability of private (non-state) actors as norm setters, which illustrates the highly disruptive nature of private actors as newcomers to the governance landscape. The assumption that the new governance landscape is divided into a binary system of private and public was soon replaced by the recognition of mushrooming instances of norms drafted, and institutions represented, by a combination of private and public actors,20 as well as by the close similarities in instruments selected by private and public actors.21 The classification was thus refined to reflect both the nature of the authority which is issuing the norms (the source of regulation) as well as the nature of the entity receiving the norms (the target of regulation). Regulatory instruments have been classified into private–private, 15 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 16 Minamata Convention on Mercury (adopted 10 October 2013, entered into force 16 August 2017), www​.mercuryconvention​.org. 17 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention). 18 A. Marx and D. Cuypers, ‘Forest Certification as a Global Environmental Governance Tool: What Is the Macro-Effectiveness of the Forest Stewardship Council?’ (2010) 4 Regulation & Governance 408; H. van Asselt, ‘The Institutional Complex for REDD+: A “Benevolent Jigsaw”?’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016). 19 B. Cashore, ‘Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority’ (2002) 15(4) Governance 503; J. Morrison and N. Roht-Arriaza, ‘Private and Quasi-Private Standard Setting’ in D. Bodansky, J. Brunnee and E. Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 498. 20 L. Andonova, M. Betsill and H. Bulkeley, ‘Transnational Climate Governance’ (2009) 9 Global Environmental Politics 52; P. Pattberg and J. Stripple, ‘Beyond the Public and Private Divide: Remapping Transnational Climate Governance in the 21st Century’ (2008) 8 International Environmental Agreements: Politics, Law and Economics 367. 21 S. Light and E. Orts, ‘Parallels in Public and Private Environmental Governance’ (2015) 5 Michigan Journal of Environmental and Administrative Law 1.

Regulatory instruments of transnational environmental governance  93 private–public, public–public and public–private instruments. Instruments not fitting within these categories have been put into a large separate category of hybrid instruments.22 However, this constellation too contains a key weakness: co-mingling between various types of authority does not occur only in the norm design (through intentions), but manifests itself also in the implementation of norms (through action). Indeed, private actors are capable of operating regulatory regimes throughout the entire cycle – from standard setting to monitoring and enforcement.23 They are able to implement public law even when they are not explicitly targeted by it.24 Following these findings, most instruments would be classified as hybrid–hybrid, which is not particularly helpful for their theorization. A second, alternative, categorization suggests a division between market (also dubbed economic or incentive-based) and non-market (also dubbed prescriptive or command-and-control) instruments.25 Despite a different nomenclature, the essence of this division also had to do with the role of the state or the government. The notion of ‘market mechanisms’ was proposed by scholars studying regulatory instruments in domestic contexts during the 1980s, when the use of markets as a form of governance was becoming increasingly popular. The popularity of the markets was so strong that the statement of ‘if it is feasible to establish a market to implement a policy, no policy-maker can afford to do without one’26 became widely accepted across sectors of environmental regulation, in particular in climate policy.27 The division between market and non-market instruments serves to highlight the advantage of the less prescriptive, less rigid, and more incentive-based nature of certain instruments. However, the analytical problem with this division is that the so-called market instruments are always embedded in, and have a strong reliance on, some form of regulation.28 Their operation per se has little to do with the principles of a free, unrestrained market. Both market instruments and prescriptive instruments operate within rule-based liberal economies. They may tinker at the edges but essentially enable rather than restrict the rule-based paradigm within which they are erected. In that aspect, market-based and prescriptive instruments are not too different from each other. Rather, the scholarly preference for either market-based or V. Heyvaert, Transnational Environmental Regulation and Governance (Cambridge University Press 2019) 37–49. 23 C. Scott, ‘Private Regulation of the Public Sector: A Neglected Facet of Contemporary Governance,’ (2002) 29 Journal of Law and Society 56; A. Van Aaken, ‘Effectuating Public International Law through Market Mechanisms?’ (2009) 165 Journal of Institutional and Theoretical Economics 33. 24 N. Affolder, ‘The Private Life of Environmental Treaties’ (2009) 103 American Journal of International Law 510. 25 E.g., D. Driesen, ‘Alternatives to Regulation? Market Mechanisms and the Environment’ in M. Cave, R. Baldwin and M. Lodge (eds), The Oxford Handbook of Regulation (Oxford University Press 2010); J. Freeman and C. Kolstad, ‘Prescriptive Environmental Regulations versus Market-Based Incentives’ in J. Freeman and C. Kolstad (eds), Moving to Markets in Environmental Regulation: Lessons from Twenty Years of Experience (Oxford University Press 2006). 26 J. H. Dales, Pollution, Property and Prices: An Essay in Policy-Making and Economics (University of Toronto Press 1986) 100. 27 J. Aldy and R. N. Stavins (eds), Architectures for Agreement: Addressing Global Climate Change in the Post-Kyoto World (Cambridge University Press 2007); D. Freestone and C. Streck (eds), Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work (Oxford University Press 2005). 28 J. Freeman and D. Farber, ‘Modular Environmental Regulation’ (2005) 54 Duke Law Journal 795; D. M. Driesen, ‘Is Emissions Trading an Economic Incentive Program: Replacing the Command and Control/Economic Incentive Dichotomy’ (1998) 55 Washington & Lee Law Review 289. 22

94  Research handbook on transnational environmental law command-and-control type instruments became a front for the ongoing ideological struggle to define the role of social and environmental justice in the current governance and regulatory model.29 A third possibility has been to classify instruments as voluntary and mandatory, or non-binding and binding.30 This division reflects the growing significance of ‘softness’ and informality in governance vis-à-vis more rigid traditional instruments. However, this classification is proving increasingly frail in view of a number of instruments that have originated as voluntary endeavours, but have eventually acquired a de facto mandatory nature (as a result of the operationalization of the supply chain31 or the enactment of domestic laws, for instance).32 Hence, the dynamic and transformative nature of norms (which is no longer determined by the source of authority) has challenged this last dichotomy. Unsurprisingly, the process of drawing distinctions had to become more sophisticated and break away from established categories. Attempts at designing new, more meaningful, classifications have not stopped and continue to be used to theorize contemporary governance.33 A recent account of transnational environmental governance offers to reorganize regulatory approaches by focusing on the intention of regulatory action.34 This results in differentiating between regulation that overcomes collective action problems of global public goods; facilitates trade; makes up for state inaction; manages risks of under-regulation; or enhances the effectiveness of existing regulation. In that account, the instruments are defined both by the intentions of regulators and by various stages of the development of a specific environmental regime. It is proposed that transnational regulatory instruments should be conceived and evaluated according to the purpose and particular stage of the evolution of a certain regime, rejecting that there is anything inherently effective, appropriate or desirable in a certain type of instrument. This attempt at systematizing transnational instruments is more complete and seems to come closer to capturing the complexity of transnational regulatory instruments than previous accounts. It confirms that, contrary to a cross-border upscaling of the regulatory debates from the domestic contexts, the nature of transnational regulation is sui generis.

K. Bosselmann and B. Richardson (eds), Environmental Justice and Market Mechanisms: Key Challenges for Environmental Law and Policy (Kluwer Law 1999); J. Penca, ‘Marketing the Market: The Ideology of Market Mechanisms for Biodiversity Conservation’ (2013) 2 Transnational Environmental Law 235. 30 J. Kirton and M. Trebilcock, Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment, and Social Governance (Ashgate 2004); S. Wood, ‘Voluntary Environmental Codes and Sustainability’ in B. Richardson and S. Wood (eds), Environmental Law for Sustainability: A Reader (Hart 2006). 31 L. Ching-Fu, ‘The Emergence and Influence of Transnational Private Regulation of Food Safety’ in S. Halabi (ed.), Food and Drug Regulation in an Era of Globalized Markets (Elsevier 2015). 32 C. Rose, ‘Non-Binding Instruments and Democratic Accountability’ in H. Cullen, J. Harrington and C. Renshaw (eds), Experts, Networks and International Law (Cambridge University Press 2017). 33 O. Dilling and T. Markus, ‘The Transnationalisation of Environmental Law’ (2018) 30 Journal of Environmental Law 179; Heyvaert (n 10). 34 Heyvaert (n 22) 50–89. 29

Regulatory instruments of transnational environmental governance  95

4

ANALYSING INDIVIDUAL REGULATORY INSTRUMENTS: DOMINANT RESEARCH STRATEGIES AND THEIR LIMITATIONS

The literature examined above gathers various regulatory instruments together in an attempt at classification. But not all the literature is interested in clustering the instruments. In this section, we critically reflect on the larger body of literature that examines the individual qualities of various instances of regulatory activities. Most regulatory instruments are analysed as part of a broad assessment of the environmental regime within which they operate. For instance, the EU REACH Regulation applying to chemical substances has been analysed from the point of view of its design and functioning within the regime of chemicals regulation, which also involves other instruments and governance structures.35 Carbon agreements struck between companies and their suppliers, or between a plethora of actors, have been analysed as a shorthand appraisal of global climate governance.36 Less often are individual instruments situated within the larger realm – the political economy context. An example of that is the analysis of biodiversity markets, which have been examined as potential advancements within the biodiversity regime, while noting that they operate according to the Western conception of the ‘biodiversity problem’ as an issue of diversity of resources rather than of preservation of wilderness and a holistic link to nature.37 This scholarship adopts an in-depth, more granular analysis of the qualities of individual instruments or groups of approaches. It demonstrates how specific features of environmental governance manifest (such as multilevel and multi-actored governance, interdisciplinarity, and its relationship to scientific uncertainty).38 A notable feature of much of the existing engagement with transnational instruments is that it focuses on their efficiency and effectiveness. The research agenda is largely result-oriented. It is interested in how a certain instrument responds to intentions, how it addresses the collective-action problem or how it overcomes the sluggishness of state regulation. This is true not only for the analysis of individual instruments, but also for the interactions between them. Polycentricity (describing governance from multiple sources and levels) is made visible.39 The literature also acknowledges that regulatory instruments are usually deployed in combination, D. Bowman and G. van Calster, ‘Reflecting on REACH: Global Implications of the European Union’s Chemicals Regulation’ (2007) 4 Nanotechnology Law & Business 375; J. Scott, ‘Reach: Combining Harmonization with Dynamism in the Regulation of Chemicals’ in J. Scott (ed.), Environmental Protection: European Law and Governance (Oxford University Press 2009); N. M. Sachs, ‘Jumping the Pond. Transnational Law and the Future of Chemical Regulation’ (2009) 62 Vanderbilt Law Review 1815. 36 K. Mitkidis, ‘Using Private Contracts for Climate Change Mitigation’ (2014) 2 Groningen Journal of International Law 54; N. Affolder, ‘Transnational Carbon Contracting: Why Law’s Invisibility Matters’ in A. C. Cutler and T. Dietz (eds), The Politics of Private Transnational Governance by Contract (Routledge 2017). 37 I. Koziell and I. Swingland, ‘Collateral Biodiversity Benefits Associated with “Free– Market”Approaches to Sustainable Land Use and Forestry Activities’ (2002) 360 Philosophical Transactions of the Royal Society of London. Series A: Mathematical, Physical and Engineering Sciences 1807. 38 E. Fisher, ‘Environmental Law as “Hot” Law’ (2013) 25 Journal of Environmental Law 347. 39 A. Jordan, D. Huitema and J. Forster (eds), Governing Climate Change: Polycentricity in Action? (Cambridge University Press 2018). 35

96  Research handbook on transnational environmental law rather than just as single tools.40 How different instruments interact with each other is also studied.41 However, these interactions are rarely problematized. Scholarly preference seems to be for explaining, rather than critically engaging with instruments or their underlying governance structures. As a result, the normative dimension of regulatory instruments – and of environmental governance more broadly – has been relatively neglected. The aspects of performance perfection of existing instruments have obscured questions of justice. This encompasses not only the matter of fair distribution of environmental risk, but also recognition of the diversity of the participants and experiences in affected communities, and participation in environmental decision-making processes.42 Further, the political, even ideological, charge of instruments has so far been neglected.43 In this vein, a divide has emerged between legal and regulatory scholars who take for granted the instrument choices that are made (and thereby legitimize these choices), and other social scientists who have been much more susceptible to the broader normative context of the same phenomena. For example, while regulatory accounts are intrigued by the involvement of firms and private contracts supporting the provision of food,44 they rarely question their contribution to the production of inequality and disruption of local social norms.45 The disregard among environmental legal analysis for justice implications or structural change, even though these are core preoccupations of law, has been problematized. It has been attributed to a set of assumptions regarding the role, function and development of the discipline of environmental law or a ‘tacit disciplinary mindset’ which is being self-perpetuated by those practising it.46 It can also be situated within the evolution of the modern paradigm of environmental law, which refuses to play a normative and philosophical role beyond an instrumental one.47 Finally, such an orientation has been reinforced by legal scholars’ uncritical and frequent adoption of the regulatory vocabulary, attitude and mentality. Indeed, reflections on the role of law in buttressing and guiding the regulatory techniques have been marginal. To avoid giving such an impoverished role to law, the construction of regulatory categories N. Gunningham and C. Holley, ‘Next-Generation Environmental Regulation: Law, Regulation, and Governance’ (2016) 12 Annual Review of Law and Social Science 273. 41 M. Karavias, ‘Interactions between International Law and Private Fisheries Certification’ (2018) 7 Transnational Environmental Law 165; A. Marx and D. Cuypers, ‘Forest Certification as a Global Environmental Governance Tool: What Is the Macro-Effectiveness of the Forest Stewardship Council?’ (2010) 4 Regulation and Governance 408; J. Penca, ‘Biodiversity Offsetting in Transnational Governance’ (2015) 24 Review of European, Comparative & International Environmental Law 93. 42 D. Schlossberg, Environmental Justice and the New Pluralism: The Challenge of Difference in the New Environmentalism (Oxford University Press 1999). 43 Penca (n 29). 44 B. van den Meulen (ed.), Private Food Law: Governing Food Chains through Contract Law, Self-Regulation, Private Standards, Audits and Certification Schemes (Wageningen Academic Publishers 2011). 45 C. Getz and A. Shreck, ‘What Organic and Fair Trade Labels Do Not Tell Us: Towards a Place-Based Understanding of Certification’ (2006) 30 International Journal of Consumer Studies 490; T. Mutersbaugh, ‘The Number Is the Beast: A Political Economy of Organic-Coffee Certification and Producer Unionism’ (2002) 34 Environment and Planning A: Economy and Space 1165. 46 M. Prost and A. Torres Camprubí, ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’ (2012) 25 Leiden Journal of International Law 379. 47 S. Coyle and K. Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and Nature (Hart 2004). 40

Regulatory instruments of transnational environmental governance  97 should not to be equated with transnational environmental law – there is more to the latter than managerialism.

5

TOWARDS A NEW RESEARCH AGENDA ON REGULATORY INSTRUMENTS

A key question arising from an analysis of regulatory instruments as part of the study of transnational environmental governance concerns the scope of the analysis. In this context, taking into account structural and political factors is necessary. The repeated discourse of instruments as falling under fixed and comparable categories may produce a belief that regulatory choices are objective and neutral, that instruments are easily transferable in space and time and that environmental conflicts are a matter to be resolved as a matter of ‘fixing’ a problem, rather than by confronting conflicting and often irreconcilable views. A focus on regulatory instruments, as this study tends to be conducted in the mainstream, surreptitiously results in a validation of a procedural and managerial approach to governance questions.48 Such an approach reduces the role of law to an instrumentalist tool. A critical reflection on how law is entangled within governance structures has to be recognized as an inherent part of the research on instruments. This is the case with the scholarship that demonstrates how law is underused in environmental governance,49 and which articulates how it could be used to reimagine the established relationships between humans and the rest of the nature,50 or which highlights how discourses and visions pave the way for certain legal practices.51 Thorough research suggested treating forestry and fisheries as a distinctive model of transnational private regulation, and explained how the regulatory instrument of private certification crucially depends on a specific, but contestable view of transnational regulation52 and how the establishment of these private governance regimes has defeated other forms of governance.53

Heyvaert (n 10) 215–51; J. Dehm, ‘Authorizing Appropriation?: Law in Contested Forestry Spaces’ (2017) 28 European Journal of International Law 1379. 49 G. Baars & IGLP Law and Global Production Working Group, ‘The Role of Law in Global Value Chains: A Research Manifesto’ (2016) 4 London Review of International Law 57; J. Dehm, ‘Tricks of Perception and Perspective: The Disappearance of Law and Politics in Carbon Markets; Reading Alexandre Kossoy and Phillippe Ambrosi, “State and Trends of the Carbon Market 2010”’ 2011 7 Macquarie Journal of International and Comparative Environmental Law 1. 50 A. Peters, ‘Liberté, Égalité, Animalité: Human–Animal Comparisons in Law’ (2016) 5 Transnational Environmental Law 25; L. Kotzé, ‘Human Rights and the Environment in the Anthropocene’ (2014) 1 The Anthropocene Review 252–75. 51 A. Kotsakis, ‘Change and Subjectivity in International Environmental Law: The Micro-Politics of the Transformation of Biodiversity into Genetic Gold’ (2014) 3 Transnational Environmental Law 127; D. Kysar, ‘Sustainable Development and Private Global Governance’ (2005) 83 Texas Law Review 2109; E. Cloatre and N. Wright, ‘A Socio-Legal Analysis of an Actor-World: The Case of Carbon Trading and the Clean Development Mechanism’ (2012) 39 Journal of Law and Society 76. 52 T. Bartley, ‘Institutional Emergence in an Era of Globalization: The Rise of Transnational Private Regulation of Labor and Environmental Conditions’ (2007) 113 American Journal of Sociology 297. 53 T. Bartley, ‘How Foundations Shape Social Movements: The Construction of an Organizational Field and the Rise of Forest Certification’ (2007) 54 Social Problems 229. 48

98  Research handbook on transnational environmental law More sociologically grounded work goes well beyond the analysis of the practical operation of an environmental regulatory instrument and fiercely challenges our fascination with the certification schemes that have enjoyed so much attention by regulatory scholars. Such work also demonstrates that regulatory outputs depend on a particular framing of the problem.54 Particular framings of climate change, loss of nature, forest depletion, overfishing and plastics pollution have prepared the ground for specific tools, actors and solutions while marginalizing others. Structural modifications that are often implied by alternative framings do not square well with the representation of ‘regulatory instruments’ as piecemeal adjustments to existing governance structures and processes. Contrary to the politically anodyne analyses of regulatory instruments, more socially embedded analyses better reflect the realities of environmental governance. This approach is inherently better suited to produce various frames, rather than a single one, for understanding what constitutes an environmental problem, and for suggesting that multiple, rather than singular, courses of action can be taken.55 It also seems to be more in tune with the practice of the ‘effective lawyer’, who is not only able to articulate what the law is, but also make ‘policy arguments for keeping or changing the existing law, and to understand[ing] the factors that influence its development and effectiveness’.56 A broader, more politically aware, analysis has a better explanatory power, which is beneficial for a fuller comprehension of environmental governance. It is also more democratic and emancipatory as it enables more stakeholder groups to play their role and exercise their influence through norm design. Scholarship should also relax its position vis-à-vis the question of what constitutes a regulatory instrument. Specifically, the examination of environmental governance should refrain from assuming that ‘regulatory instrument’ is a fixed notion. Scholarship so far has perpetuated the view that instruments are found among the codes of conduct, product labels, industry guides or corporate responsibility policies. It has been biased in that it has sought to capture larger schemes, which often involved repeat players. However, specific environmental, social and economic micro-realities may produce less obvious and less commonplace tools for influencing the social sphere. These may be smaller in scope, but no less significant for depicting the landscape. It should be clear that the understanding of governance tools is different when limited to the contracting provisions between cooperating companies, or when – in the same scenario – extended to the social setting of the entire supply chain.57 The view of transnational environmental governance will also be richer if the publicly imposed legal requirements, which oblige firms to disclose social and environmental information to consumers and investors, are analysed alongside civil society organizations’ boycotts and counter-advertisements.58 Similarly, recognizing that popular carbon markets operate as governance systems, rather than

54 M. Hajer, The Politics of Environmental Discourse: Ecological Modernization and the Policy Process (Clarendon Press 1995). 55 Fisher (n 38). 56 D. Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2010) 9. 57 N. Affolder, ‘Looking for Law in Unusual Places: Cross-Border Diffusion of Environmental Norms’ (2018) 7 Transnational Environmental Law 425, 18. 58 Kysar (n 51).

Regulatory instruments of transnational environmental governance  99 as straightforward tools, will result in a broader perspective.59 Just as important as focusing on directives, corporate codes of conduct or principles, is the analysis of partnerships that rest on advocacy and lobbying,60 movements that mobilize political opposition to influence (national) public policies,61 numerical indicators,62 or less technical standard-setting activities.63 These latter social phenomena certainly differentiate themselves from harder forms of regulation. They produce less precise and less formal norms. But such actions create social dynamics that often influence and precede rules. They are thus important in portraying and understanding the governance space, within which regulation emerges. Exploring these tools enables scholars to engage with expressions of broader social action. It shows how regulation is still shaped by the opportunities offered and constrained by political institutions. It also demonstrates how decisions regarding what constitutes a regulatory instrument entail a judgement about the appropriate standards for the societal and institutional operation and the appropriate ways in which to evaluate compliance with those standards.

6

SEEING BEYOND ESTABLISHED CATEGORIES: THE CASE OF FISHERIES

The value of pursuing a broader analysis of regulatory instruments will be exemplified through the case of the fisheries sector. This sector has long been treated as uniform, without paying attention to the existing division between industrial, and small-scale and artisanal fisheries (SSF), both composed of heterogeneous sectors with many different actors operating within distinct social, economic and ecological systems. In so far as the study of fisheries forms part of environmental law, it has been framed as tackling the problems of overfishing and loss of biodiversity. International legal rules address these issues from the point of view of multilateral fisheries agreements and policy commitments, thus through ‘binding’ and ‘non-binding’ rules. The lasting failure of state arrangements to reverse the trend of overfishing has led to the development of a transnational private standard for sustainable fishers, operated by the Marine Stewardship Council (MSC). Regulatory scholarship has been deeply fascinated with the rise of this transnational private certification scheme, especially as it relates to a similar scheme operating in the forestry

S. Bogojevic, ‘Ending the Honeymoon: Deconstructing Emissions Trading Discourses’ (2009) 21 Journal of Environmental Law 443; Affolder (n 36). 60 K. Bäckstrand, ‘Accountability of Networked Climate Governance: The Rise of Transnational Climate Partnerships’ (2008) 8 Global Environmental Politics 74. 61 T. Lewis, ‘Transnational Conservation Movement Organizations: Shaping the Protected Area Systems of Less Developed Countries’ (2000) 5 Mobilization: An International Quarterly 103; C. Rootes, ‘A Limited Transnationalization? The British Environmental Movement’ in D. Della Porta and S. Tarrow (eds), Transnational Protest and Global Activism (Rowman & Littlefield Publishers 2005). 62 R. Doshi, J. Kelley and B. Simmons, ‘The Power of Ranking: The Ease of Doing Business Indicator and Global Regulatory Behavior’ (2019) 73(3) International Organization 611; S. Bell and S. Morse (eds), Routledge Handbook of Sustainability Indicators (Routledge 2018); K. Davis, B. Kingsbury and S. Engle Merry, ‘Indicators as a Technology of Global Governance: Indicators’ (2012) 46 Law & Society Review 71. 63 J. Penca, ‘Transnational Localism: Empowerment through Standard Setting in Small-Scale Fisheries’ (2019) 8(1) Transnational Environmental Law 143. 59

100  Research handbook on transnational environmental law regime.64 This scholarship has produced a nearly blind belief that there is little else in transnational (non-state) regulation beyond these specific standards. For a long time, regulatory scholarship failed to capture critiques of these certification schemes, which other disciplines had articulated.65 It also failed to recognize the efforts of SSFs to be heard within international governance, but away from the established options.66 And yet, the efforts by SSF ultimately resulted in legitimate regulatory tools. First, ‘soft law’ emerged in the form of Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries.67 The Guidelines essentially aim at the improvement of the socio-economic situation of SSFs within the context of sustainable fisheries management. They approach fisheries not only as a natural resource, but foremost as an issue involving people – from fishers and their families to fish processors. They expand the significance of fisheries to the realm of poverty eradication, food subsistence and nutrition, labour, women and other human rights, as well as preservation of traditions and communities. They have been negotiated by many stakeholders, adopted by the Food and Agriculture Organization’s Committee on Fisheries, and subsequently endorsed both by governments and civil society with the intention to largely transform the way fisheries are governed and managed. A testament to their impact is the articulation of the target of ‘provid[ing] access for small-scale artisanal fishers to marine resources and markets’ in the Sustainable Development Goals (SDG).68 In addition to the efforts on the framing document, SSFs also took decisive actions to increase their influence, primarily in the market.69 These have involved promotion, awareness-raising and valorization activities; establishing innovative and short supply chains; increasing transparency of existing value chains, and creating novel standards. In addition, SSFs have deployed self-regulation and have improved their organization to influence policy at the national and regional level. All these activities are often very local-specific, reflecting communal practices and values, but forming part of a global re-awakening of SSF. They attempt to differentiate SSF from the industrial fisheries, but also the large-size, local-insensitive MSC scheme. 64 B. Cashore and others, ‘Can Non-State Governance Ratchet Up Global Environmental Standards? Lessons from the Forest Sector’ (2007) 16 Review of European Community and International Environmental Law 158; K. Webb (ed.), Voluntary Codes: Private Governance, the Public Interest, and Innovation (Carleton University Research Unit for Innovation, Science and the Environment 2003); L. Gulbrandsen, ‘Mark of Sustainability? Challenges for Fishery and Forestry Eco-Labeling’ (2005) 47 Environment: Science and Policy for Sustainable Development 8. 65 S. Ponte, ‘The Marine Stewardship Council (MSC) and the Making of a Market for “Sustainable Fish”’ (2012) 12 Journal of Agrarian Change 300; M. Hadjimichael and T. Jacob, ‘Really Sustainable? Inherent Risks of Eco-Labeling in Fisheries’ (2016) 174 Fisheries Research 129; D. Constance and A. Bonnano, ‘Regulating the Global Fisheries: The World Wide Fund, Unilever, and the Marine Stewardship Council’ (2000) 17 Agriculture and Human Values 125. 66 E. Allison and F. Ellis, ‘The Livelihoods Approach and Management of Small-scale Fisheries’ (2001) 25 Marine Policy 377; S. Salas and others, ‘Challenges in the Assessment and Management of Small-scale Fisheries in Latin America and the Caribbean’ (2007) 87 Fisheries Research 5; D. Johnson, ‘Category, Narrative, and Value in the Governance of Small-scale fisheries’ (2006) 30 Marine Policy 747. 67 FAO, ‘Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication’, FAO Doc. COFI/2014/Inf.10 (9–13 June 2014), www​.fao​.org/​ 3/​i4356en/​I4356EN​.pdf. 68 UNGA Resolution 70/1, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (25 September 2015), UN Doc. A/RES/70/1, Target 14B. 69 Penca (n 63).

Regulatory instruments of transnational environmental governance  101 These initiatives reveal the social and political exclusion facing small-scale fishers and identify the weak elements of the existing regulatory framework. They are active attempts to target regulation directly and indirectly, via the market. The sum of the empowerment tactics adopted by SSFs demonstrate the existence of a defined standard for the practice of a certain type of fishing. This entails the use of passive fishing gear, fishing close to the port of origin, reliance on a variety of adaptive techniques in response to resource fluctuations and environmental uncertainties, and a high concern for social justice. SSF tactics show that the market can be a tool for rectifying the lack of representation in strong governance frameworks. They constitute an industry-group standard70 for the particular segment of fisheries in much the same way that MSC is a standard for the fisheries that harvest sustainable fish stocks, minimize environmental impact, and manage their fisheries effectively. The scholarship largely presented the MSC standard as the only alternative to the dysfunctional public regulation of fish resources. In doing so, it failed to acknowledge that the MSC-type of governance was not viable for SSFs in light of the values they stand for and how they operate. Yet, if we do not recognize such parallel regulatory efforts as also being a ‘standard’, we fail to report adequately on the governance space. We effectively fail to acknowledge significant regulatory efforts and standard-setting activities of a certain (not insignificant) sector. We exclude certain actors for their operation on a less standardized, less technical and less uniform concept of a standard. We also fail to understand the constraints of the dominant standard, both as recognized by its critics as well as by its proponents.71 Finally, we miss the chance to appreciate the richness of regulatory areas beyond those that make it to the mainstream scholarship.

7

CONCLUSION: TRANSNATIONAL GOVERNANCE BETWEEN PERFECTING AND CONTESTING REGULATION

This chapter started by defining transnational regulatory instruments as devices, tactics, techniques or approaches through which contemporary transnational governance takes place. The variety of representational and procedural constellations continues to display the breadth and depth of governance in the environmental sphere, but has been difficult for theorists to grasp. The chapter offered an account of the way in which scholarship has engaged with the methods of governance and outlined some of the limitations of a restrictive approach to their understanding. The key message of the chapter is that regulatory instruments should be approached with a broad analytical frame. At the basic level, that requires a continued and rigorous engagement with the content and scope of instruments, their monitoring and compliance procedures and enforcement mechanisms, but also with the questions of their accountability and impact in

Morrison and Roht-Arriaza (n 19) 498. The Fish Site, ‘£1 million fund for small scale fisheries’ (The Fish Site, 29 October 2018), https://​ thefishsite​.com/​articles/​1​-million​-fund​-for​-small​-scale​-fisheries; Marine Stewardship Council, ‘MSC confirms topics to be included in its Fisheries Standard Review’ (MSC, 24 January 2019), www​.msc​.org/​ media​-centre/​press​-releases/​msc​-confirms​-topics​-to​-be​-included​-in​-its​-fisheries​-standard​-review. 70 71

102  Research handbook on transnational environmental law addressing public problems.72 Individual instruments should be located in a wider governance space that is crucially defined by multiple sources of authority operating at different scales and among a growing body of rules. How various instruments interact in the complex network of interstate agreements, transnational institutions and programmes, standards and financing arrangements is an important area of research.73 Within this, in particular, a more careful comparison with how private regulatory initiatives comply with or depart from the settings and spirit of public international law would generate important insights into how transnational environmental governance navigates between transnational and international law. The compatibility between transnational (not entirely consent-based) and international (consensual) legal obligations should not be taken for granted.74 In continuing to explore transnational environmental governance, scholars should be careful that existing examples of regulatory instruments do not limit their understanding of what constitutes transnational regulation. A dynamically evolving world enables the emergence of ever newer types of initiatives aimed at social control. The research agenda should continue to be susceptible to a colourful palette of instruments in transnational environmental governance and examine their (non-)regulatory function and operation in the context of regime design and governance structures, rather than on the basis of their form. Contouring environmental regulatory instruments in a broad manner goes a long way towards deploying the perspective of transnational law in the way that motivated the very emergence of the concept of transnational environmental law. From its introduction, transnational environmental law arguably has best been understood not as a substantive field, but as a methodology, a perspective or approach to law in theory and practice.75 It is characterized by a progressive opening-up of perspectives. Transnational law is both national and international, public and simultaneously private. It is restrictive and enabling. Its crucial operationalizations, such as regulatory instruments, or standards underpinning them, should be viewed as holding an empowering and emancipatory potential not only for certain, more powerful actors, but also for those that challenge dominant structures and approaches. Thus, lawyers’ sights should not stop at the examination – and legitimatization – of existing regulatory tools. An expanding scope for law and rules implies also an expanding scope for what is political. On the one hand, as scholars we need to describe the spatial, temporal and social contexts of governance approaches. On the other hand, we need to be able to locate them in the broader normative picture. Approaching environmental regulatory tools both on a case-by-case basis and with attention to the political dimensions may be a collective task for the scholarly community. Nevertheless, a level of sensitivity to both the micro- and

C. Scott, F. Cafaggi and L. Senden, ‘The Conceptual and Constitutional Challenge of Transnational Private Regulation’ (2011) 38 Journal of Law and Society 1. 73 K. Abbott, ‘The Transnational Regime Complex for Climate Change’ (2012) 30 Environment and Planning C: Government and Policy 571; O. Young, ‘The Effectiveness of International Environmental Regimes: Existing Knowledge, Cutting-Edge Themes, and Research Strategies’ in M. Betsil, S. Dimitris and M. Paterson (eds), Advances in International Environmental Politics (Palgrave Macmillan 2014). 74 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) Transnational Environmental Law 1, 31–41. 75 G.-P. Callies and P. Zumbansen, Rough Consensus and Running Code: A Theory of Transnational Private Law (Hart 2012) ix; V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) 1 Transnational Environmental Law 1, 2. 72

Regulatory instruments of transnational environmental governance  103 macro-politics of regulatory instruments can, and arguably should, be incorporated into every single analysis.

ACKNOWLEDGEMENT The author acknowledges funding from the Slovenian Research Agency (Project code: ID Z5-8239).

7. Transnational environmental regulation and evolving approaches to compliance Aleksandra Čavoški

1 INTRODUCTION The issue of compliance in international regulatory regimes has warranted significant scrutiny, from both political scientists and lawyers trying to identify causes of non-compliance and assess methods to improve compliance. For many decades, this included a consideration of states’ behaviour in international forums and of the forces that drove their behaviour in international politics. Environmental policy was often used as an example to illustrate states’ motivations to comply with international law. However, environmental law and regulation have undergone significant changes in recent times, due to multiple factors. After an unprecedented proliferation of international environmental treaties in the 1970s to 1980s, the focus in environmental law has shifted to implementation and improving compliance mechanisms within the large body of international environmental law.1 This was facilitated by a greater environmental consciousness and a willingness of states to cooperate, as well as advances in science and technology. Moreover, environmental law evidenced a move from traditional regulation by the state to the emergence of transnational environmental governance structures involving non-state actors. This is compounded by globalization’s impact on governance systems. As a result, implementation of transnational environmental law is now reliant on a number of diffuse actors, institutions and processes, at both the sub- and supranational levels. This is taking place at different levels of transnational regulatory institutionalization and poses specific challenges in choosing methods to ensure compliance appropriate to the institutional context. This chapter investigates the move from traditional enforcement approaches in transnational environmental law to the wider use of a management approach to bolster compliance understood as an action-oriented concept. The chapter argues that traditional international relations theories, including realism, institutionalism and constructivism, have limited utility in explaining compliance in transnational environmental law. Instead, it demonstrates that the broader deployment of a management approach across different governance systems is increasingly accepted in transnational environmental law. This is illustrated by exploring three legal orders at different levels of institutionalization, with different actors and different enforcement mechanisms available to transitional regulators. The three case studies examine the management approach in the European Union (EU), in the international climate change framework, and in the International Organization for Standardization (ISO). The EU is an example of a highly institutionalized transnational legal order. The European Commission is vested with See the International Environmental Agreements Database Project, available at https://​iea​.uoregon​ .edu, listing over 1300 multilateral (global and regional) environmental agreements and 2200 bilateral ones. 1

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Transnational environmental regulation and evolving approaches to compliance  105 extensive enforcement powers which are widely deployed in environmental policy. The Paris Agreement2 to the United Nations Framework Convention on Climate Change (UNFCCC)3 is another example of a highly institutionalized transnational legal order, yet it has no enforcement powers vested in the main bodies established under this Agreement. Finally, the ISO, as a loose transnational network responsible for voluntary standards setting, offers an excellent example of non-state actors facilitating compliance both at the national and international level. This chapter argues that management-based approaches to compliance are strengthened when we adopt an action-oriented understanding of compliance. Indeed, compliance in transnational environmental law is not a static and binary concept but rather a dynamic concept focusing on the process and measures that facilitate compliance.4 As the management approach examines the causes of non-compliance, the action-oriented framing enables addressing those causes through a set of tailored actions or measures. This is particularly significant from a policy perspective as the regulator’s understanding of compliance will frame its approach to best address the challenges encountered by those regulated. Compliance as an action-oriented concept represents a significant departure from the traditional understanding of compliance based on coercive measures. It is best suited to address the causes of non-compliance grounded in the management strategy, including shortcomings in the law, capacity and financial difficulties faced by states and non-state actors. As the three regulatory regimes examined in this chapter are informed by the management approach, they provide us with an understanding of how governance structures move from an outcome-oriented approach to compliance to an action-oriented approach. Finally, the chapter concludes that the management approach is increasingly prominent in transnational environmental law and informs different transnational environmental governance structures. The chapter also identifies further avenues for research. It suggests wider empirical research on the applicability of the management approach to other types of transnational environmental governance regimes, especially to non-state transnational environmental regimes, as well as the impact of regimes based on this approach. Another potential avenue of further research is an assessment of the value of specific activities or measures deployed to address non-compliance within the transnational environmental regulatory context and an examination of the response of particular actors to management measures.

2

TRANSNATIONAL ENVIRONMENTAL REGULATION AND COMPLIANCE STRATEGIES

The question of compliance is central to various theories of international relations, as they try to explain why states comply with international law. This issue is one of the core themes in realism, which is regarded as a bedrock theory in international relations. Although realism is 2 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 3 United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107. 4 This approach has affinity with the work of V. Heyvaert, Transnational Environmental Regulation and Governance. Purpose, Strategies and Principles (Cambridge University Press 2019). The author examines environmental regulatory strategies through an activity-based analysis and develops an end-to-end process of formulating regulatory strategy.

106  Research handbook on transnational environmental law by no means monolithic,5 several common themes permeate its different schools of thought. Realists argue that the international stage is essentially anarchic with nation states as the primary actors who act in pursuit of their own interests. Classical realist theory views the world as a Hobbesian state of nature whereby international actors, namely, states are driven by power to impose rules of behaviour.6 As Morgenthau emphasizes, ‘international politics, like all politics, is a struggle for power. Whatever the ultimate aims of international politics, power is always the immediate aim.’7 As a result, states are willing to comply with international rules only to the extent that is necessary to fulfil their own national interests. A corollary to this view is that international institutions have an instrumental value for fulfilling these national interests.8 In contrast to realists, institutionalists attach a greater importance to international institutions in inducing states’ compliance with international rules. This view is particularly prominent among regime theorists who argue that international regimes create a favourable international environment for states to cooperate.9 By facilitating interactions between states, institutions enhance the likelihood of cooperation and compliance in several important ways. Keohane cites the role of institutions in reducing the cost of transactions, facilitating issue resolution within and between regimes, improving the quality of information to governments, establishing legitimate standards of behaviour for states to follow and providing ways to monitor compliance.10 However, like realists, institutionalists still view sovereign states as principal actors in international relations. They are by no means substituted or undermined by international institutions.11 Constructivism departs from the rationalist perspective shared by realists and institutionalists. While the rationalist approach renders institutions subservient to actors’ interests, the constructivist approach argues that interests are shaped by institutions. Constructivists bring into focus the importance of shared norms, values and knowledge which have an impact on the behaviour of states.12 With regard to interactions at the international level, constructivists regard international institutions as having the capacity to ‘transform state identities and interest’.13 Compliance of states with international norms is explained by a logic of appropriateness

See more about different waves of realism in R.N. Lebow, ‘Realism in International Relations’ in B. Badie and others (eds), International Encyclopaedia of Political Science (SAGE 2011); see M. Burgstaller, Theories of Compliance with International Law (Martinus Nijhoff 2004). 6 See more in J. Steans and L. Pettiford, Introduction to International Relations: Perspectives and Themes (2nd edn, Pearson Education Limited 2005) 49–52. 7 H. Morgenthau, Politics Among Nations (5th edn, Knopf 1978) 29. 8 K. Waltz, Theory of International Politics (Waveland Press Inc., 2010). 9 R. Keohane argues that regimes “contribute to cooperation not by implementing rules that states must follow, but by changing the context within which states make decisions based on self-interests” in After Hegemony (Princeton University Press 1984) 13. 10 Ibid 244–5. 11 Ibid 63. 12 See C. Parker, ‘Compliance’ in Badie (n 5); K. Raustiala and A.-M. Slaughter, ‘International Law, International Relations and Compliance’ in W. Carlsnaes and others (eds), The Handbook of International Relations (SAGE 2002). 13 A. Wendt, ‘Anarchy Is What States Make of It: The Social Construction of Power Politics’ (1992) 4(2) International Organization 391, 394. 5

Transnational environmental regulation and evolving approaches to compliance  107 whereby states follow norms as they are seen as ‘natural, rightful, expected, and legitimate’.14 Franck argues that compliance is secured, ‘at least in part by perception of a rule being legitimate to those to whom it is addressed’.15 Though some earlier constructivists such as Wendt argue that states in the medium term remain the dominant political actors in the international system,16 more recently constructivists such as Keck and Sikkink have emphasized the role of transnational advocacy networks, especially in the field of human rights and the environment.17 Those networks influence states’ behaviour by promoting ‘norm implementation, by pressuring target actors to adopt new policies and by monitoring compliance’.18 The preceding discussion mapped out various established schools of thought that examine reasons why states comply with international norms. However, these three classical theories have only a limited applicability to compliance in transnational environmental law. The main limitation of these approaches is the primacy given to nation states as principal units at the international level, which means that any interaction at the international level is dependent on the existence of states.19 These theories focus solely on motivations of states to comply. Furthermore, these views of international relations are also strictly binary as they identify states and international institutions as the sole international actors. The theories do not engage with the transformative impacts of transnational regulation on law, which arguably provoke a rethinking of law itself.20 As Fisher argues, transnational environmental law needs to be examined in the light of a multitude of processes crossing jurisdictional borders, such as the creation of private and public governance systems, the clash between levels of governance, the overlap between different dispute resolution forums and the simultaneous development of particular legal doctrines and phenomena.21 The other limitation of classical theories of international relations is their narrow understanding of the notion of compliance. Compliance is only examined by looking at the motivations of the state to comply without seeking to fully understand the causes of non-compliance or identifying strategies to bolster compliance. Bearing in mind the distinctive nature of transnational environmental law, this limited approach does not recognize that the design of compliance measures needs to address the particular context in which transnational environmental law operates. The design of compliance measures needs to be aligned with specific features and processes of numerous actors, at different levels of governance and levels of institutionalization, which may affect compliance. Thus, different approaches towards theorizing compliance, in particular the management and enforcement theories, may contribute more to the discussion as they are concerned with how to facilitate compliance for actors. These theories regard compliance in a wider context of

J. March and J. Olsen, ‘The Logic of Appropriateness’ in R. Goodin (ed.), The Oxford Handbook of Political Science (Oxford University Press 2011) 478. 15 T. Franck, ‘Legitimacy in the International System’ (1992) 82 American Journal of International Law 706. 16 Wendt (n 13) 424. 17 M. Keck and K. Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998). 18 Ibid 3. 19 L. Henkin, How Nations Behave (Columbia University Press 1979) 15. 20 V. Heyvaert, ‘The Transnationalization of Law: Rethinking through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 205. 21 E. Fisher, ‘The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers’ (2012) 1 Transnational Environmental Law 46. 14

108  Research handbook on transnational environmental law legal, social and economic change and explore different strategies to secure compliance. Under the enforcement approach, addressees are regarded as rational actors incentivized to comply by the likelihood of detection through monitoring and the threat of sanctions.22 Monitoring increases transparency, while the possibility of sanctions raises the costs of non-compliance.23 Downs, Rocke and Barsoon point out the importance of enforcement even in cases of environmental regimes, which are more often associated with management-based approaches, asserting that ‘enforcement plays a greater role in successes than one is led to believe and its absence is conspicuous in some notable failures’.24 The enforcement approach posits a clear correlation between the effectiveness of enforcement and the depth of cooperation within an international treaty.25 Of particular importance is the management approach to compliance, which is an accepted trend in transnational environmental law. The management approach contends that parties have a general predisposition to comply and cases of non-compliance should not be necessarily regarded as a deliberate decision to breach a provision.26 The management approach argues that non-compliance is instead the result of ambiguity and indeterminacy of legal rules, capacity limitations or temporal dimensions of social and economic changes.27 This approach departs from the traditional use of coercive measures to ensure compliance and favours other, more cooperative and non-punitive methods. The management approach provides an expanded toolbox to best address impediments to compliance through dispute resolution procedures aimed at resolving legal ambiguity.28 Furthermore, technical and financial assistance may remedy capacity shortcoming and transparency as an overall method to bolster the likelihood of compliance. Thus, it is closely aligned to the notion of compliance as an action-oriented concept through different types of activities that secure compliance within this context. The management approach also recognizes the role of non-state actors in improving compliance of states through various campaigning activities.29

3

COMPLIANCE AS AN ACTION-ORIENTED CONCEPT

Reflections on the notion of compliance do not only have a theoretical value but are also significant from a policy perspective. Indeed, how the regulator interprets compliance will frame its approach to addressing causes of non-compliance.30 Thus, the regulator’s choice of strategies to address causes of non-compliance can be classified according to theories, in

22 J. Tallberg, ‘Path to Compliance: Enforcement, Management and the European Union’ (2002) 56 International Organization 611. 23 Ibid 612. 24 G. Downs, D. Rocke and P. Barsoom, ‘Is the Good News about Compliance Good News about Cooperation’ (1996) 50 International Organization 379, 395. 25 Ibid 387–92. 26 A. Chayes and A. Handler Chayes, ‘On Compliance’ (1993) 47 International Organization 178. 27 Ibid 188. 28 Ibid 204. 29 Ibid. 30 See for example how the European Commission explains its approach to compliance in environmental policy SWD (2018) 10 final 9–10.

Transnational environmental regulation and evolving approaches to compliance  109 particular, either the enforcement theory or the management theory.31 To that end, this section examines different understandings of compliance and argues that compliance construed as an action-oriented process enables the regulator to address the main causes of non-compliance, in particular causes identified by the management approach. Compliance is usually defined as an adherence to rules or processes. Raustiala and Slaughter define compliance as ‘a state of conformity or identity between an actor’s behaviour and a specified rule’, which suggests that compliance is a static and binary notion.32 A very different interpretation of the concept is provided in UNEP’s Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (MEAs) where compliance is defined as ‘the fulfilment by the contracting parties of their obligations under a multilateral environmental agreement and any amendments to the multilateral environmental agreement’.33 The latter definition emphasizes the activity of those regulated towards compliance with relevant rules and regulations, though compliance can also be facilitated by the regulator. This understanding better captures the idea of compliance as an action-oriented concept, which becomes an iterative process offering actors an extended toolbox of activities to secure compliance. Chiti captures this action-oriented approach by viewing compliance not solely as an outcome but as a process.34 As Chiti argues, ‘compliance does not refer to the simple result of obedience, but to the overall process through which obedience is gradually construed’.35 Compliance understood as an action-oriented concept in transnational environmental law represents a significant departure from a traditional understanding of outcome-oriented compliance. It is the most suitable perspective to tackle the causes of non-compliance conceptualized in the management strategy, including shortcomings in the law, institutional, capacity and financial difficulties. To that end, compliance becomes intertwined with several other concepts, including implementation, enforcement, deterrence and effectiveness. All those terms have a common denominator in that they refer to an aspect of actors’ behaviours as a response to a certain rule or norm. Yet, each term has its own content and temporal dimension. Some scholars regard compliance as a more generic concept, while enforcement has a more specific coercive meaning.36 Specific meanings of implementation and enforcement derive from the fact that such concepts are effectively formative building blocks of compliance. They should be regarded as distinct activities subsumed by a notion of compliance. Thus, implementation and enforcement are tools through which compliance is construed. Implementation has an instrumental value to ensure compliance. It involves different types of activities, such as normative activities of passing laws, regulations and policies and institutional activities including setting up bodies and putting processes in place.37 Some of these

31 A. Čavoški, ‘EU Environmental Compliance Assurance’ (2019) 21 Environmental Law Review 113. 32 Raustiala and Slaughter (n 12) 539. 33 UNEP, Manual on Compliance with and Enforcement of MEAs, 59, http://​wedocs​.unep​.org/​ handle/​20​.500​.11822/​7458. 34 E. Chiti, ‘The Governance of Compliance’ in M. Cremona (ed.), Compliance and the Enforcement of EU Law (Oxford University Press 2012) 32. 35 Ibid. 36 M. Cremona, ‘Introduction’ in Cremona (n 34) x. 37 See Raustiala and Slaughter (n 12) 539; UNEP Manual (n 33) 59. See also Heyvaert (n 4), who examines in chapter four an end to end process of formulating regulatory strategy. The proposed activity-based model is organized in five interconnected stages.

110  Research handbook on transnational environmental law activities can be regarded as tools to address vagueness and imprecision of law and institutional difficulties identified in the management approach. Implementation entails a voluntary action primarily by a regulatee, although the regulator can assist the regulatee by undertaking a variety of activities, which may include exchange of information and best practices, training and providing financial assistance. Unlike enforcement, implementation is motivated by a sense of cooperation and shared interest. Enforcement has a different scope and temporal dimension. Traditionally, it was understood to entail the use of coercive measures by the regulator as a response to a breach of a rule which should have a deterrent effect on a regulatee.38 Deterrence, for example by imposing penalties, has been conventionally regarded as the best means to address non-compliance with environmental rules within a command-and-control approach to environmental regulation.39 Though enforcement is still widely regarded as a means for ensuring compliance by deployment of sanctions, we can see a move in transnational environmental law towards a less rigid understanding of enforcement. For example, the UNEP Manual defines enforcement as a ‘range of procedures and actions employed by a state, its competent authorities and agencies to ensure that organizations or persons, potentially failing to comply with environmental laws or regulations implementing multilateral environmental agreements, can be brought or returned into compliance and/or punished through civil, administrative or criminal action’.40 This definition emphasizes the action-oriented nature of enforcement as a means to obtain compliance, including a variety of actions and procedures through which compliance is secured which may or may not be followed by sanctions. It provides a regulator with an incentive to deploy management measures and engage with the regulatee before deciding to impose a sanction, particularly in situations where this approach will be more likely to remedy the offence and less costly to ensure compliance.41 This understanding of ‘enforcement’ reflects the evolving nature of the concept which has a significant effect on the understanding of a management approach within the context of compliance as an action-oriented concept. Finally, the concept of effectiveness is often associated with compliance and has purchase in moving from a static and binary understanding of compliance towards tailoring activities that foster compliance. Chambers points out that equating compliance with effectiveness represents a positivistic approach which does not necessarily engage with whether the objectives of the treaties are fulfilled.42 Similarly, Raustiala and Slaughter argue that high levels of compliance are not necessarily an indication of effectiveness.43 A good illustration, relevant to transnational environmental law, is international agreements which contain lowest common

More recently, some authors such as Baldwin and others use the term more broadly to include all strategies through which regulators seek to effectuate their communications, including persuasive measures such as negotiation, advice, education or promotion. See R. Baldwin, M. Cave and M. Lodge, Understanding Regulation: Theory, Strategy, and Practice (2nd edn, Oxford University Press 2012) 227–58. 39 See N. Gunningham, ‘Environment Law, Regulation and Governance: Shifting Architectures’ (2009) 21 Journal of Environmental Law 2. 40 UNEP Manual (n 33) 294. 41 Ibid 309: the Manual encourages this approach especially in cases of minor offences, where information, persuasion, and technical assistance might be sufficient to remedy the offence. 42 W.B. Chambers, ‘Towards an Improved Understanding of Legal Effectiveness of International Environmental Treaties’ (2004) 16 Georgetown International Environmental Law Review 504. 43 Raustiala and Slaughter (n 12) 539. 38

Transnational environmental regulation and evolving approaches to compliance  111 denominator requirements.44 These make compliance easy but induce little change in the behaviour of states.45 Still, effectiveness is relevant for compliance as a focus on effectiveness invites a broader approach towards prompting change in the behaviour of regulatees. This is especially the case for environmental protection issues where compliance with specific legal provisions of environmental treaties does not necessarily provide a comprehensive insight into the overall environmental treaty performance of the regulatee.46 Rather than focusing on a narrow set of explicit legal requirements, Chambers suggests expanding the scope of legal effectiveness to include supporting activities in international environmental treaties, such as the transfer of knowledge and technology, capacity-building programmes and financing mechanisms, which induce changes in states’ behaviour.47 This view is aligned with the management approach measures aimed at overcoming the vagueness or imprecision of law, capacity limitations, financial and other obstacles to compliance.

4

THE EVOLVING CONCEPT OF ‘ENFORCEMENT’ IN THE EU

The first case study in this chapter is an examination of the deployment of the management approach in the light of compliance as an action-oriented concept in the EU. The EU provides an example of a highly institutionalized transnational actor with significant enforcement powers entrusted to the European Commission as a supranational body. Moreover, the issue of compliance is particularly important in the environmental policy area, and it remains an area of concern when it comes to the implementation of EU law.48 The Commission addressed poor compliance in this policy area by deploying measures based on both the management and the enforcement approach, though this section will argue that the management approach is more effective.49 Moreover, the Commission’s understanding of compliance in this policy area is closely aligned with the understanding of compliance as an action-oriented concept, which is most appropriate to address causes of non-compliance within the framework of the management approach. As in other policy areas, the enforcement of EU environmental law has been construed traditionally through the application of the infringement procedure under Article 258 of the Treaty on the Functioning of the European Union (TFEU). This proceeding is further enriched with the introduction of Article 260 TFEU which bestows upon the Court of Justice of the EU (CJEU) the ability to impose financial penalties on non-compliant Member States. Although the infringement procedure remains the central pillar of the EU’s enforcement approach, the

44 For example, the UNFCCC and the Vienna Convention for the Protection of the Ozone Layer contain very general provisions, see Raustiala and Slaughter (n 12) 539. 45 Ibid. 46 Chambers (n 42). 47 Ibid 527. 48 See ‘Annual Reports on Monitoring the Application of EU Law’, https://​ ec​ .europa​ .eu/​ info/​ publications/​annual​-reports​-monitoring​-application​-eu​-law​_en. 49 Many scholars, such as Tallberg (n 22), argue that the EU effectively deploys a combination of management and enforcement strategies to induce compliance. See also Cremona (n 36); M. Smith, Centralised Enforcement, Legitimacy and Good Governance in the EU (Routledge 2010); and A. Čavoški, ‘An Assessment of Compliance Strategies in the Environmental Policy Area’ (2016) 41 Environmental Law Review 252.

112  Research handbook on transnational environmental law Commission has gradually introduced a variety of measures grounded in the management approach to bolster compliance. This is best evidenced by examining key policy documents prepared by the Commission to address the issue of non-compliance across all policy sectors and, in particular, in the environmental policy area.50 In a 2008 policy document specifically dedicated to implementation of environmental law, the Commission demonstrated how its new approach applies to the environment. The Commission decided to focus predominantly on the use of the management approach by preventing breaches of environmental law throughout legislative and post-legislative activities and expressed its preference for the use of problem-solving mechanisms.51 The wide applicability and effectiveness of the Commission’s deployment of measures under the management approach can best be demonstrated by examining the causes of non-compliance by Member States and the types of measures tailored to address non-compliance. As purported by the management approach, Member States often face legal obstacles, as well as technical, capacity, temporal and social difficulties in securing compliance. These difficulties are particularly pronounced in the EU environmental policy area where the Commission identified shortcomings in administrative capacities, shortcomings in knowledge and data, ineffective coordination at national level, weak compliance mechanisms, lack of integration and policy coherence and underinvestment.52 Yet, in some cases, systematic non-compliance becomes a rational choice for Member States, especially when compliance requires costly legal and institutional adjustments, such as in the waste or water sectors, or when it requires behavioural adjustments that would lead to changes in widely rooted social traditions amongst the general population.53 Moreover, from the vantage point of compliance in the EU as an action-oriented process, it is not surprising that the Commission implements environmental policy through a variety of management measures. In order to address causes of non-compliance, the Commission recently introduced a new approach to compliance in environmental policy under the ‘compliance assurance concept’, described as a ‘range of interventions used by public authorities to ensure compliance by duty-holders with environmental rules on activities’.54 Three broad classes of compliance assurance interventions are: compliance promotion; compliance monitoring; and follow-up and enforcement.55 The Commission deliberately abstains from using the term enforcement in relation to compliance assurance as it is not a term that captures all interventions concerned.56 According to the Commission, poor compliance with activity-related rules,57 which represent a significant part of EU environmental legislation, can 50 Presidency Conclusions Laeken 2001; COM (2001) 428; COM (2007) 502; COM (2008) 773; COM (2012) 259; COM (2015) 215. 51 Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions’ COM (2008) 773, 4–7. 52 Commission, ‘The EU Environmental Implementation Review: Common challenges and how to combine efforts to deliver better results’ COM (2017) 63 final, 12–13. 53 See Čavoški (n 49). 54 Commission, ‘Environmental Compliance Assurance — scope, concept and need for EU actions’ (Communication) SWD (2018) 10 final 9. See also Commission, ‘EU Actions to Improve Environmental Compliance and Governance’ COM (2018) 10 final. 55 Ibid 9. 56 Ibid. 57 Ibid 12. Though the Commission does not explain this term, which is widely used to explain its new approach to compliance, the examples provided in the text indicate that environmental protection

Transnational environmental regulation and evolving approaches to compliance  113 be best addressed by understanding compliance as a multistage process containing numerous ‘building blocks’.58 This demonstrates the Commission’s understanding of compliance as an action-oriented process and a move from a traditional understanding of the concept of ‘enforcement’ as a key approach to ensure compliance. Following an action-oriented understanding of compliance, the Commission deploys various managerial measures to address non-compliance caused by ambiguity of legal language, financial and technical difficulties.59 The Commission has a long tradition of providing financial assistance to bolster compliance, best evidenced by the use of the LIFE mechanism exclusive to the environmental policy area.60 This instrument was implemented in several phases which allowed for a better alignment of its objectives with the priorities set out in the environmental action programmes and, more recently, with Commission President Juncker’s political priorities.61 The Commission also uses transitional periods in the Member State accession process. These are most numerous in environmental policy areas and give time to new members to adapt and implement relevant EU environmental law.62 Those transition periods are matched by different financial instruments which are tailored to accession countries to facilitate their compliance with EU law before they become EU members.63 In its 2018 Compliance Assurance Action Plan, the Commission introduced a more strategic and comprehensive approach to compliance by putting forward nine specifically tailored management measures to address poor compliance across environmental sectors and specifically in those with the worst compliance records, including waste, environmental crime and rural development.64 Both the general and sectoral measures fall within the wider objectives of capacity building and rule interpretation, as these relate to the most common causes of Member State non-compliance. The Commission envisages better deployment of environmental compliance assurance expertise across the EU; identification of skills and training needs of professionals as well as improved cooperation with actors involved in implementation at the national and European level and provision of training; facilitated sharing of good practice and the potential establishment of a wider environmental implementation portal; preparation of material that will lead to better handling of environmental complaints and citizen engagement at the Member State level; capacity building and use of geospatial intelligence; assessment

entails the process of implementing numerous activities that are necessary to fulfil the objective stated in the Directive. For example, the EU rules on ambient conditions include ‘requirements to adhere to limits on air pollution, pursue the good ecological status of water bodies, and ensure the favourable conservation status of protected habitats and animal and plant species’ (Ibid 4–5). 58 Ibid 20. 59 In his analysis of all policy areas, Tallberg points out four main strategies deployed by the Commission to all policy sectors, including the use of financial instruments, transitional periods in the accession process, the cooperation with national authorities and the use of interpretative guidelines. The use of these strategies is more prominent in the environmental policy area: Tallberg (n 22) 615. 60 See http://​ec​.europa​.eu/​environment/​life/​. 61 Juncker Commission (2014–2019), https://​ec​.europa​.eu/​commission/​publications/​president​ -junckers​-political​-guidelines​_en; COM (2017) 370 final. 62 See Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV of the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (2003), OJ L 236; Annexes VI and VII of the Treaty of Accession of the Republic of Bulgaria and Romania (2005), OJ L157 and Annex V of the Treaty of Accession of Croatia (2012), OJ 2012 L 112/21. 63 E.g., IPA (Instrument for Pre-Accession). 64 COM (2018) 10 final, 6–7 (n 54).

114  Research handbook on transnational environmental law of national environmental compliance assurance systems; and provision of good practice guidance documents and technical guidelines in specific environmental sectors.65 These measures provide a comprehensive end-to-end process for ensuring compliance and assist actors throughout the entire process, starting from the early identification of the challenges in compliance to handling cases of non-compliance. Management measures also form part of the infringement procedure under Article 258 TFEU, conventionally seen as a typical enforcement mechanism. This procedure may be better understood as a hybrid proceeding, bringing together both management and enforcement approaches to compliance. The development of cooperation with citizens and other EU institutions throughout the monitoring process, the use of problem-solving mechanisms in the pre-litigation stage, and even the use of a letter of formal notice and a reasoned opinion prior to initiating court proceedings are measures based on the management approach. Monitoring, declaratory rulings affirming violations of EU environmental law under Article 258 TFEU and the imposition of sanctions under Article 260 TFEU are based on the enforcement approach. The Commission monitors compliance through its own in-house system, but unlike Member States it does not have ‘resources on the ground’ to undertake monitoring. It relies on reporting requirements imposed on Member States, on its own database systems for the transposition of directives and on collection of different statistical compliance data. In addition, the Commission very successfully empowered members of the public, in particular citizens and non-governmental organizations (NGOs), to assist it in identifying cases of non-compliance.66 This is complemented with partnerships which the Commission has built with other EU institutions, in particular the European Environment Agency and the European Parliament, to identify cases of non-compliance. More recently, the Commission has experimented with incorporating new management measures into the pre-litigation stage of the infringement procedure with the aim of avoiding triggering the procedure. These initiatives provide additional steps to already existing problem-solving mechanisms formally embedded in the infringement procedure, including the letter of formal notice and reasoned opinions. The first initiative is the EU Pilot, conceived as a structured problem-solving dialogue between the Commission and Member States, with the objective of quickly and amicably resolving potential breaches of EU law within a 20-week deadline.67 This new approach is aligned with the intention of the Commission to use less coercive measures within the infringement procedure. This alternative dispute settlement procedure flourished in environmental infringement cases with an average success rate of approximately 72% from 2014, though there was a drop in 2016 and 2017 to 65%.68 Despite its effectiveness, in 2017 the Commission decided to initiate a series of infringement procedures, without relying on the EU Pilot except in cases where it may be appropriate.69 Unfortunately, this shift was a result of pressures to ensure expedient enforcement and reduce Ibid 6–7. The Action Plan focuses on waste, environmental crime and environmental compliance in rural areas. 66 With the exception of 2015 and 2016, on average the Commission received around 500 complaints from members of the public – See ‘Report from the Commission 2017 – Commission staff working document – monitoring application of EU policy areas – part 2’ SWD (2018) 378, 24. 67 31st Annual Report on Monitoring the Application of EU Law (2013), COM (2014) 612, 9. 68 ‘Report from the Commission 2018 – Commission staff working document – monitoring application of EU policy areas – part 2’, 28. 69 Better Results through Better Application, C/2016/8600, 12. 65

Transnational environmental regulation and evolving approaches to compliance  115 an already lengthy infringement procedure, which on average lasts for 16.4 months without the EU Pilot.70 Another successful initiative was the Commission’s Early Warning Report for EU waste legislation, which reviewed the implementation of key waste legislation in Member States, identified challenges in compliance and provided recommendations for improving the management of certain waste streams.71 These two initiatives, together with the formal problem-solving mechanisms, demonstrate the importance the Commission attaches to the use of less punitive measures within its enforcement approach. The most recent statistical data reveal that Commission successfully resolved 90% of infringement cases since 2014 without launching an infringement procedure before the Court, with environment as one of the areas with a high resolution rate.72 Despite the strong enforcement powers enjoyed by the Commission by virtue of the infringement procedure, in the environmental policy area the management approach is still more effective than the use of enforcement. In the enforcement pathway, it is not unusual for Member States to postpone compliance until the very end of the infringement procedure under Article 258 TFEU as this gives them more time. Moreover, recent statistics indicate that it takes Member States on average from 23.6 to 28.2 months to comply with CJEU rulings.73 Some Member States decide not to comply with the ruling under Article 258 TFEU and wait for the Commission to institute a procedure under Article 260(2) TFEU, which empowers the Court to impose financial sanctions. However, the referral rate under Article 260(2) TFEU remains low bearing in mind the overall number of environmental infringement cases.74 More importantly, the CJEU does not effectively use the option supplied by the Lisbon Treaty whereby if a Member State fails to notify the Commission about the measures transposing a directive, the Commission can bring a case before the CJEU without giving the Member State an opportunity to submit its observations and, if deemed appropriate, it may specify the amount of financial sanction to be paid by the Member State.75 Thus, the Commission decision to become more strategic in addressing infringements through use of coercive measures exposes the need to improve the enforcement approach to compliance in addition to deploying management measures to ensure compliance.76 Earlier discussion showed the complementary use of both the management and the enforcement approach to compliance in the highly institutionalized EU order. As Member States trans-

2017 CJEU Annual Report, https://​curia​.europa​.eu/​jcms/​upload/​docs/​application/​pdf/​2018​-04/​ ra​_pan​_2018​.0421​_en​.pdf at 37; see also C/2016/8600. 71 COM (2018) 656 final at 1. 72 Report from the Commission 2018 – Annual report on monitoring the application of EU law, 2, https://​ec​.europa​.eu/​info/​sites/​info/​files/​report​-2018​-annual​-report​-monitoring​-application​-eu​-law​.pdf and Report from the Commission 2018 – Commission staff working document – monitoring application of EU policy areas – part 2, 28, https://​ec​.europa​.eu/​info/​sites/​info/​files/​report​-2018​-commission​-staff​ -working​-document​-monitoring​-application​-eu​-law​-policy​-areas​-part2​.pdf. 73 European Commission, ‘Single Market Scoreboard Infringements about Reporting period: 12/2017 – 12/2018’, https://​ec​.europa​.eu/​internal​_market/​scoreboard/​performance​_by​_governance​ _tool/​infringements/​index​_en​.htm 8. 74 ‘Report from the Commission 2018 – Commission staff working document – monitoring application of EU policy areas – part 2’ (n 68) 31. 75 Art. 260(3) TFEU. In Better Results through Better Application (n 69), the Commission committed to ‘fully utilise the possibilities laid down in art 260(3) TFEU to strengthen its approach to sanctions for such cases’ – C/2016/8600, 15. 76 Better Results through Better Application (n 69) 15. 70

116  Research handbook on transnational environmental law ferred some of their enforcement powers to the Commission, this complementary approach is highly effective. However, more recent policy documents indicate the Commission’s transition to favouring a management approach as the most appropriate means to implement the action-oriented concept of ‘environmental compliance assurance’. Moreover, this approach addresses the causes of non-compliance by enabling a dialogue with Member States from an implementation stage to cases of non-compliance in a facilitative and supporting manner. This approach to compliance through a well-designed process has not only proven to be more effective in fostering compliance but also nurtures a dialogue with Member States, which may foster greater mutual appreciation between supranational and domestic actors.

5

NON-COMPLIANCE PROCEDURES IN INTERNATIONAL CLIMATE CHANGE LAW

The Paris Agreement to the UNFCCC is another example of a highly institutionalized international legal order. Unlike the EU scenario, however, compliance is dependent on the willingness of states to cooperate. As this Agreement is the most recent addition to climate change treaty law, it provides us with an opportunity to examine the range of innovative features indicative of a management approach which have been designed with the purpose of addressing common causes of non-compliance. Moreover, the design of the compliance mechanism and other supporting measures in the Agreement evidences a move from an outcome-oriented understanding of compliance to action-oriented compliance, entailing a set of facilitative measures that assist states through a multistage process. The Paris Agreement is based on the same governance structure as its founding instrument and its predecessor (the UNFCCC and the Kyoto Protocol)77 with the Conference of the Parties (CMA) as the ‘supreme body’ of the Convention with legislative powers and supervisory powers to ‘keep under regular review the implementation of this Agreement’ and ‘make the decisions necessary to promote its effective implementation’.78 The UNFCCC Secretariat serves the Meeting of the Parties to the Paris Agreement and the Subsidiary Body for Scientific and the Technological Advice and Subsidiary Body for Implementation support the work of the CMA. Bearing in mind this governance structure, the Paris Agreement demonstrates the wide applicability of the management approach in a highly institutionalized governance system where states retain their sovereign powers. As Voigt argues, the compliance mechanism in the Paris Agreement must be assessed in light of the legal architecture of this agreement, which is significantly different from the Kyoto Protocol.79 The United Nations Environment Programme (UNEP) Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements recognize the independent legal status of each multilateral environmental agreement (MEA) and the need

Kyoto Protocol (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162. 78 Paris Agreement, Arts 16(1) and (4). 79 C. Voigt, ‘The Compliance and Implementation Mechanism of the Paris Agreement’ (2016) 25(2) Review of European, Comparative, International Environmental Law 166. 77

Transnational environmental regulation and evolving approaches to compliance  117 to devise compliance mechanisms in light of the specific characteristics of each treaty.80 To that end, Bodansky underlines the specific legal nature of this treaty with a mix of mandatory and non-mandatory provisions,81 which can be explained by the unsuccessful prescriptive approach of the Kyoto Protocol and a need for a more tailored approach in line with the common and differentiated responsibilities and respective capabilities of states, ‘in the light of different national circumstances’.82 A close examination of the legal architecture of the Paris Agreement reveals that the treaty was informed by the management approach in formulating measures that will facilitate and foster compliance. To that end, the Agreement is founded on several main building blocks, including mitigation, adaptation, provision of financial support, technology development and transfer, enhancement of transparency and capacity building. Those components expose an idea of a differentiated approach to compliance by taking into account specific needs and capabilities of states or groups of states at a similar level of development. This differentiation, as an example of a management-based strategy, aims to address common causes of non-compliance at the international level such as ambiguity of legal language, and lack of financial, institutional and technical capacity. This is even more pronounced in regard to the international regulation of climate change, which depends upon significant institutional, behavioural and financial interventions by states. The differentiated approach is best illustrated by examining the language of the Paris Agreement with regard to some of the main components. With respect to nationally determined contributions (NDCs) as the primary mitigation strategy, the Agreement pursues a bottom-up approach in which states identify their NDCs and ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions’.83 In regard to adaptation, the specific needs and challenges faced by states are even more foregrounded as the agreement acknowledges ‘a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems’.84 In order to address financial challenges that may impede compliance, the Agreement imposes an obligation on developed countries to provide financial support to developing countries and encourages participation amongst all parties in knowledge and technology sharing. As lack of capacity remains one of the cornerstones of poor compliance under the management approach, the Agreement recognizes the importance of enhanced capacity building, in particular for countries with least capacity, guided by a ‘country-driven’ approach based on national needs and best practice sharing.85 Aligned with the management approach are the Agreement’s provisions on enhancement of climate change education, training, public participation and

80 UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, para. 5, https://​wedocs​.unep​.org/​bitstream/​handle/​20​.500​.11822/​17018/​UNEP​-guidelines​ -compliance​-MEA​.pdf​?sequence​=​1​&​isAllowed​=​y. 81 D. Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25 Review of European, Comparative, International Environmental Law 142; see also L. Rajamani, ‘The 2015 Paris Agreement: Interplay between Hard, Soft and Non-Obligations’ (2016) 28(2) Journal of Environmental Law 337. 82 Paris Agreement, Preamble, para. 3. 83 Ibid, Art. 4(2). 84 Ibid, Art. 7(5). 85 Ibid, Art. 11.

118  Research handbook on transnational environmental law public access to information to address the lack of knowledge and expertise to address poor compliance among states.86 Furthermore, the Paris Agreement reflects an action-orientated understanding of compliance whereby compliance is construed as a multistage process embedded in the main components of the Agreement. For example, both in terms of mitigation and enhancement of transparency, the Agreement sets out a list of activities states need to implement to ensure compliance. In regard to mitigation, it sets out a multistage process states are required to follow including the preparation, communication and maintenance of NDCs; provision of information necessary for clarity, transparency and understanding in communicating their NDCs; communication of NDCs every five years and accounting for their NDCs as well as avoidance of double counting.87 In order to enhance trust and transparency, states also have reporting obligations which are subjected to technical expert review.88 More importantly, compliance as an action-oriented concept is construed broadly in the Paris Agreement to include a specific compliance mechanism as well as supporting activities that are not per se compliance mechanisms but assist states in early implementation stages. With regard to specific compliance mechanisms, the Paris Agreement prescribes a similar compliance assessment structure as the Kyoto Protocol, with a Compliance Committee responsible for facilitating and promoting compliance in accordance with the provisions of the treaty. Unlike the Compliance Committee under the Kyoto Protocol, which is also responsible for enforcing compliance through its enforcement branch,89 the Paris Agreement Compliance Committee has a purely facilitative nature and functions in a ‘manner that is transparent, non-adversarial and non-punitive’.90 In undertaking its role and in line with the differentiated approach grounded in management strategy, the Committee takes into account ‘the respective national capabilities and circumstances of parties’.91 The recently adopted decision on modalities and procedures of the Compliance Committee92 is fully aligned with the management approach. Given the importance of national capabilities and circumstances of the parties in implementing the agreement, it is not surprising that the decision identifies particular factors which the Compliance Committee may bear in mind in identifying appropriate measures to support parties, such as: the legal nature of the provision concerned; whether the party is a developed, developing, least developed or small island country; occurrence of systemic issues regarding compliance and situations of force majeure.93 Ibid, Art. 12. Ibid, Art. 4. 88 Ibid, Art. 13. 89 The compliance committee under the Kyoto Protocol has two limbs of compliance – the facilitative and enforcement branches. 90 Paris Agreement, Art. 15(2). 91 Ibid. 92 Decision 20/CMA.1, FCCC/PA/CMA/2018/3/Add.2 (19 March 2019), ‘Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in art 15, paragraph 2, of the Paris Agreement’. Before these modalities were agreed there were calls to institute two branches of the Committee. Voigt (n 79) argued that the mechanism focuses on both compliance and implementation which is a ‘helpful indicator of its design and function’. In cases of non-legally binding provisions, Voigt argued that the committee should have addressed implementation problems through its implementation branch, while in regard to legally binding provisions, the committee should have addressed lack of compliance through its compliance branch. 93 Ibid. 86 87

Transnational environmental regulation and evolving approaches to compliance  119 In the same vein, the decision identifies types of measures available to the Compliance Committee, all of which are supportive and firmly informed by the management approach.94 A good illustration is the initiation of a dialogue with a party with the aim of identifying challenges, making recommendations and sharing information that may concern finance, technology or capacity as the main building components of the Agreement.95 Furthermore, the Committee cannot impose any penalties or sanctions, which is a significant departure from the Kyoto Protocol and its approach to compliance. Thus, the Committee is not vested with any enforcement or dispute settlement powers.96 This indicates the particular importance the Agreement places on implementation as a key stage of compliance. The main intention of the Agreement is to closely follow the progress towards compliance and identify potential causes of non-compliance in implementing each main component of the Agreement. Beside the specific compliance mechanism prescribed by the Agreement, the Paris Agreement covers complementary supporting activities which foster compliance by allowing review of individual and collective implementation of treaty provisions and provision of best available support. The two best examples are the transparency framework97 and global stocktakes.98 The former mechanism focuses on individual progress by reviewing the support each party receives in respect of the main building blocks of the Agreement, in particular financial support and capacity building. The transparency framework also operates as a facilitative and non-punitive mechanism to provide the party concerned with an assessment of its progress and areas for improvement, without placing any undue burden on the party.99 The global stocktake complements the transparency mechanism by addressing compliance through a review of collective action. This again entails a multistage process involving three main activities.100 It commences with information collection and preparation which is subjected to technical assessment facilitated by a dialogue between the Intergovernmental Panel on Climate Change experts and the parties through the Subsidiary Body for Scientific and Technological Advice.101 The final stage is the consideration of findings. The purpose of this exercise is to allow for the careful examination of the implementation of the Agreement by avoiding focusing on any specific party or issuing policy prescriptive considerations.102 It is conceived as a ‘learning-by-doing’ exercise which, in alignment with management strategy, seeks to redress the lack of knowledge that contributes to non-compliance. An interesting

Ibid para. IV.30. Ibid, the decision lists several more measures including the following: ‘(b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions; (c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate; (d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan; (e) Issue findings of fact in relation to matters of implementation and compliance’. 96 Ibid, para. I.4. 97 Paris Agreement, Art. 13. 98 Ibid, Art. 14. 99 Ibid, Art. 13(3). 100 Decision 19/CMA.1, FCCC/PA/CMA/2018/3/Add.2 (19 March 2019), ‘Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.2’. 101 Ibid. 102 Ibid, para. I.14. 94 95

120  Research handbook on transnational environmental law feature of this exercise that may foster further compliance is the involvement of transnational non-state actors who may contribute to formulating outputs of the technical assessment. The preceding discussion exposes the management approach as an underlying strategy of the Agreement to foster compliance. Moreover, management measures conceived under this approach facilitate the implementation of a broadly construed action-oriented compliance. Although the effectiveness of Agreement cannot be assessed yet, the design of the Agreement addresses causes of non-compliance through a multistage process and advocates a differentiated approach to achieve compliance. The Agreement creatively enhances existing forms of the compliance mechanism by adding mechanisms focused on the learning process that involve both state and non-state actors.

6

TRANSNATIONAL NON-STATE ACTORS AND VOLUNTARY CONSENSUS-BASED STANDARD SETTING

The work of the ISO on standard setting, in particular standards related to the environment, is the final case study. This transnational regime adds another important lens to this analysis as the work of the ISO significantly differs from the previous two case studies. Whereas the analyses of the EU and the Paris Agreement focused mainly on identifying management-based aspects of their approach towards building compliance, the ISO case study demonstrates how a particular standard can be specifically designed as a management-based compliance tool and, as such, may bolster compliance. Moreover, this is a transnational network responsible for voluntary standard setting where non-state actors foster compliance both at the national and international level. Compared to the EU and the UN framework for climate change, the ISO is a less institutionalized transnational network and consists of members from the national standards bodies of 164 countries.103 It has a highly decentralized governance structure whereby 323 technical committees develop standards in various subject areas.104 Their work is overseen by a Technical Management Board which reports to the ISO Council as the main governance body. Its process of voluntary consensus-based standard setting brings together experts from different subject areas, governmental employees and private sector representatives. As a scientifically and technically driven process, ISO standards production tends to enjoy legitimacy among its members and worldwide.105 The ISO’s work on development of standards is directed by national governments; however, as Murphy and Yates point out, the ISO standards are supply driven in a highly globalized industrial society.106 The ISO’s ‘outputs’ are a wide range of product- and process-related standards in numerous subject areas, from standards for screws to data protection standards. The ISO work on environmental standards commenced in the 1980s and, according to the 2017 Annual Report,

See www​.iso​.org/​about​-us​.html. See C. Murphy and J. Yates, The International Organization for Standardization (ISO) (Routledge 2009) 25. 105 Ibid, 2. 106 Ibid, 37. 103 104

Transnational environmental regulation and evolving approaches to compliance  121 3.2% of current standards relate to sustainable development and the environment.107 One of the best-known environmental standards falls within the ISO 14000 family of process-related standards for environmental management.108 Within this group, the most developed standard is the ISO 14001, which is a certifiable standard consisting of criteria for an environmental management system. It is supported by a range of standards concerning environmental labelling (ISO 14020 to 14025), eco-design management (ISO 14006), and climate change-related standards (ISO 14064 and ISO 14067). In addition to developing international standards as the main management tool, the ISO provides its members with a range of measures that may be classified as management measures. These provide additional guidance and information on highly technical issues or responses to urgent market needs. For example, a technical specification will be used for issues under technical development for which there is no consensus for agreement, while ISO guides are used to facilitate better and more effective use of standards.109 They may facilitate compliance by addressing common causes of non-compliance, such as lack of knowledge or expertise. This is particularly significant in regard to highly technical issues which are often rendered more complex by continuous technological advances. Although the ISO develops voluntary standards, their acceptance by state and non-state actors is widespread. This is particularly true in relation to ISO 14001 as the most important environmental process-related standard. According to the European Environment Agency, approximately 85,000 organizations were registered under ISO 14001 within EU Member States.110 The 2017 ISO survey shows a sharp increase in the number of certified organizations worldwide in 2017, amounting to 362,610, which is a 5% increase from 2016.111 Though initially conceived as voluntary, it is often the case that standards become embedded in national legislation or international treaty law, especially in the context of international trade. Thus, they become a legally binding standard strictly enforced at the national or international level. For instance, the ISO 14001 on the environmental management system has been an integral part of the EU Eco-Management and Audit Scheme (EMAS) from 2001.112 More importantly, recent studies showed that joining ISO 14001 improves facilities’ regulatory compliance; the effect of joining ISO 14001 reduces the amount of time spent out of compliance by 7%.113

ISO, Annual Report 2017, 8, www​.iso​.org/​files/​live/​sites/​isoorg/​files/​about​%20ISO/​annual​ _reports/​en/​annual​_report​_2017​_en​.pdf. 108 ISO, Popular Standards: ISO 14000 Family – Environmental Management, www​.iso​.org/​iso​ -14001​-environmental​-management​.html. 109 ISO, Developing Standards: Deliverables, www​.iso​.org/​deliverables​-all​.html. 110 EEA, Number of Organisations with Registered Environmental Management Systems according to EMAS and ISO 14001 (2013), www​.eea​.europa​.eu/​data​-and​-maps/​indicators/​number​-of​-organisations​ -with​-registered/​assessment. 111 ISO, Survey of Management System Standard Certifications – 2017 Explanatory Note, https://​ isotc​.iso​.org/​livelink/​livelink/​fetch/​-8853493/​8853511/​8853520/​18808772/​00​.​_Overall​_results​_and​ _explanatory​_note​_on​_2017​_Survey​_results​.pdf​?nodeid​=​19208898​&​vernum​=​-2 1. 112 Regulation (EC) No. 1221/2009 of the European Parliament and of the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS), repealing Regulation (EC) No. 761/2001 and Commission Decisions 2001/681/EC and 2006/193/EC, OJ L 342, 22.12.2009, 1–45. 113 M. Potoski and A. Prakash, ‘Green Clubs and Voluntary Governance: ISO 14001 and Firms’ Regulatory Compliance’ (2009) 49(2) American Journal of Political Science 235, 246. 107

122  Research handbook on transnational environmental law Furthermore, the studies demonstrated the ability of the ISO 14001 standard to address causes of both wilful non-compliance and non-compliance stemming from lack of knowledge.114 These results show the important value of ISO standards in bolstering environmental compliance. This raises interesting questions about the evident popularity of such a pronouncedly management-oriented standard among governmental bodies as well as non-state actors. To that end, it is important to examine the conceptualization of compliance within the ISO framework and the extent to which its approach is grounded in the management approach. Within the ISO framework, fostering compliance entails a range of activities at different governance levels, starting from standards production at the ISO level to standard implementation at national and subnational levels. Hence, standard compliance is not a binary condition but purports compliance as an action-oriented concept. Subject area experts in technical committees carry out the development of international standards while their implementation may be subjected to further certification at the national level or to fulfilment of other requirements. As a part of the standards production, the ISO engages in a dialogue and exchange of knowledge with non-state actors such as international organizations and consumers. A good illustration is its work on climate change standards whereby the ISO organizes regular events during the UNFCCC COPs. At one of the most recent COPs, the ISO used the opportunity to discuss a range of the latest ISO standards and guidance related to climate change adaptation and GHG emissions.115 In terms of the alignment of the ISO’s approach with the management approach, it is worth noting that the latter assumes that actors have a general predisposition to comply, especially with non-coercive and less intrusive measures.116 This is particularly true in the case of ISO standards which are voluntary and based on consensus, and which involve many different state and non-state actors in their development The benefits of voluntary standard setting can be identified in regard to a variety of actors, including governmental regulators, non-state actors and wider society, in particular consumers. As argued by the management approach, there are important capacity issues and a temporal dimension to the social and economic changes that, if not well addressed by the regulator, may jeopardize compliance.117 Thus, actors are more likely to avail themselves of those standards to compensate for their own capacity or financial issues. This is particularly evident at the national level where the regulator may lack expertise or resources to design standards. Moreover, national legislation can be static and unresponsive to changing technological and scientific circumstances and insufficiently supported by governmental, human and financial resources allocated to innovation. Even if there is a political will to act, the affirmative obligation imposed on state actors may be hampered by capacity issues such as institutional, resource and financial difficulties.118 The ISO is well equipped to fill that gap in national regulation and provides highly specialized technical and scientific measures which, due to capacity limitations, may not be developed at the national level. In addition to ISO standards, the ISO’s ‘technical specifications’, ‘technical reports’ and ‘publicly available specifications’ and guides are tailored to fill the gap in the market and provide immediate responses to changing circumstances in global

Ibid, 236. C. Naden, ‘ISO at COP24: International Standards as Essential Tools for Climate Action’ (ISO, 10 December 2018), www​.iso​.org/​news/​ref2354​.html. 116 Chayes and Handler Chayes (n 26). 117 Ibid, 188. 118 Ibid, 193–5. 114 115

Transnational environmental regulation and evolving approaches to compliance  123 trends.119 More importantly, the ISO has a unique position in the environmental policy area as it facilitates the operationalization of the compliance process for governmental regulators by providing them with objective performance standards for measuring compliance which can be included in national legislation. As management approach scholars argue, the ‘acceptable level of compliance’ is subject to broad interpretation across regimes120 and the use of objective performance standards can be used to the effect of interpreting or clarifying different levels or stages of compliance. This is best evidenced by ISO 14001 which consists of five requirements that must be fulfilled by an entity applying for certification under the standard, including ‘(i) formation of a corporate environmental policy and commitment to an EMS, (ii) development of a plan for implementation, (iii) implementation and operation of the EMS, (iv) monitoring and possible corrective action, and (v) top management review and continual improvement’.121 The standards and other management measures deployed by the ISO also boost compliance among non-state actors, especially companies in the industrial sector. Management approach scholars argue that actors tend to operate under a sense of obligation to conform to rules.122 This obligation may come from legal norms or may even stem from social pressure to adhere to rules. The ISO 14001 standard on environmental management systems creates economic and social pressures among companies to change their behaviour and operates as a ‘signalling device’ for compliance in global and national markets. Moreover, as argued by Potoski and Prakash, they view brand identity and reputation as the main benefit of ISO 14001 as it creates a positive image for companies among both governmental regulators and consumers.123 It also has an important role in building the relationship of trust between the regulators and those regulated. Moreover, environmental standards reduce transaction costs for companies as they are provided with specialized knowledge and best practices for the implementation of standards. Environmental management standards also create a need for third-party companies to provide certification advice and ongoing compliance review. Thus, these certification companies assume a responsibility, traditionally entrusted to state actors, to provide guidance on processes and activities to ensure compliance. This demonstrates the importance of standardization and capacity building as argued in the management approach to facilitate compliance. The management approach advocates the enhancement of transparency as an additional means to foster compliance by facilitating behavioural change through information supply and awareness raising among those affected by their implementation. This is particularly significant in regard to environmental standards such as ISO 14001 where transparency towards consumers on the environmental performance of companies is an important part of this standard. Moreover, consumers may decide to favour the services of those companies certified under the ISO 14001 standard. This may have a knock-on effect on other companies which are not yet certified under this scheme but will be more likely to adopt this standard.124 No less important ISO, Popular Standards (n 108). Chayes and Handler Chayes (n 26) 198. 121 M. Delmas, ‘The Diffusion of Environmental Management Standards in Europe and in the United States: An Institutional Perspective’ (2002) 25 Policy Sciences 95. 122 Chayes and Handler Chayes (n 26) 187. 123 Potoski and Prakash (n 113) 238; see also, in relation to the higher environmental level commitments of companies certified for ISO 14001, O. Perez and others, ‘The Dynamic of Corporate Self-Regulation: ISO 14001, Environmental Commitment, and Organizational Citizenship Behavior’ (2009) 43 Law & Society Review 593. 124 See Potoski and Prakash (n 113) 242–5. 119 120

124  Research handbook on transnational environmental law is the potential impact of different safe and reliable standards developed within the ISO framework on consumers. As this is an important benefit for consumers and raises their levels of trust, it is expected that other businesses will be incentivized to adhere to ISO standards; thus further enabling the management approach to bolster compliance. Unlike the first two case studies, the examination of the ISO’s work on standard setting evidences the use of particular environmental standards designed as a management-based compliance tool to secure compliance from its members. This case study strengthens our understanding of management-based compliance in a loose transnational network, in this case the ISO, where wide acceptance of voluntary-based standards can be explained by the range of benefits they offer to different state and non-state actors. Those standards assist actors in overcoming potential causes of non-compliance. More importantly, standards are developed and implemented through a range of activities that facilitate compliance at different governance levels, including international, national and subnational levels.

7

CONCLUSION – IMPLICATIONS FOR TRANSNATIONAL ENVIRONMENTAL REGULATION

This chapter demonstrated a shift from traditional enforcement approaches to wider application of the management approach to various transnational regulatory regimes with the objective of fostering compliance, understood as an action-oriented concept. This was evidenced by examining this approach in three different regulatory regimes to illustrate its acceptance as a trend in transnational environmental law: EU environmental policy, the Paris Climate Agreement and ISO environmental standards. Those three different regimes involve different levels of institutionalization, different actors and different enforcement mechanisms. Yet, all three rely heavily on the management approach to foster compliance. Furthermore, in all three regimes compliance is understood as an action-oriented concept which is construed to best address sources of non-compliance grounded in the management approach, such as shortcomings in the law, capacity, institutional and financial limitations. This study establishes the explanatory value of management theory to the growing area of transnational environmental law. It demonstrates the limited applicability of the classical theories of international relations to transnational environmental law, including realism, institutionalism and constructivism. Those theories only explain why actors comply without focusing on how to facilitate their compliance, which is addressed by the management approach. Furthermore, the conventional ways of securing compliance through monitoring and use of sanctions under the enforcement approach are proving inadequate in the changing transnational environmental context with a number of diffuse actors, institutions and processes, at both the sub- and supranational levels. The study demonstrates the wide acceptance of the management approach, across different levels of transnational regulatory regime institutionalization, as the appropriate method to foster compliance. As this study evidences the management approach as increasingly prominent in different environmental regimes, it thus provides an opportunity for wider empirical research on its applicability to a greater selection of transnational environmental governance regimes at the global level, especially to looser non-state environmental networks. This is particularly significant in relation to non-state actors in transnational environmental law, which are becoming increasingly prominent, especially given the contemporary trend of deregulation in the United States and regulatory

Transnational environmental regulation and evolving approaches to compliance  125 uncertainty in the United Kingdom and the EU after Brexit. In deregulatory contexts, non-state actors may have to play a greater role in ensuring compliance. As the management approach widely informs the design of transnational environmental regimes, an important avenue of further research should also involve the investigation of the impact of regimes based on this approach. In particular, it becomes important to assess whether regimes build on management-based compliance tools ensure better compliance than regimes based on more coercive measures of compliance. Though the applicability of enforcement and management approaches was examined with particular regard to enforcement at the EU level,125 a study of more diversified transnational environmental regimes would provide not only academic or theoretical value but would be significant from a policy perspective. This further research may inform policy makers in choosing the appropriate methods to address causes of non-compliance. This study further argues that understanding compliance as an action-oriented concept offers the best vantage point from which to address causes of non-compliance grounded in the management approach. Viewing compliance as an active concept sheds light on how actors within transnational environmental law achieve compliance. As management activities construed under the compliance as an action-oriented concept provide regulators with an expanded toolbox to address particular difficulties, it would be useful to further explore the value of specific activities or measures deployed to address non-compliance within the transnational environmental regulatory context and identify how particular actors respond to those management measures. This could be linked to future empirical research on the impact of the management approach to transnational environmental governance regimes at the global level. Within each governance system, whether state or non-state actors are the primary actors, compliance is reliant on a variety of actors at different organizational levels. Thus, analysing how their behaviour changes under the impact of management measures within the context of compliance as an action-oriented concept would be valuable for further studies on compliance in transnational environmental law.

See Chiti (n 34); T. Börzel, ‘Non-Compliance in the European Union: Pathology or Statistical Artefact?’ (2001) 8 Journal of European Public Policy 803; C. Knill and A. Lenschow, ‘Compliance, Communication and Competition: Patterns of EU Environmental Policy Making and their Impact on Policy Convergence’ (2005) 15 European Environment 114; M. Mendrinou, ‘Non-Compliance and the European Commission’s Role in Integration’ (1996) 3 Journal of European Public Policy 1; G. Falkner and O. Treib, ‘Three Worlds of Compliance or Four? The EU-15 Compared to New Member States’ (2008) 46 Journal of Common Market Studies 293; P.M. Haas, ‘Compliance with EU Directives: Insight from International Relations and Comparative Politics’ (1998) 5 Journal of European Public Policy 38; A. Dashwood and R. White, ‘Enforcement Actions under Article 169 and 170’ (1989) 14 Environmental Law Review 388; F. Snyder, ‘The Effectiveness of European Community Law: Institutions, Process, Tools and Techniques’ (1993) 56 Modern Law Review 19; P. Wenneås, The Enforcement of EC Environmental Law (Oxford University Press 2007); R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Hart Publishing 2009); L. Borzsák, The Impact of Environmental Concerns on the Public Enforcement Mechanism under EU Law (Wolters Kluwer 2011); C. Harlow and R. Rawlings, ‘Accountability and Law Enforcement: The Centralised EU Infringement Procedure’ (2006) 31 Environmental Law Review 447; I. Kilbey, ‘Financial Penalties under Article 228(2) EC: Excessive Complexity?’ (2007) 44 Common Market Law Review 743. 125

8. Transnational environmental governance before the courts Suzanne Kingston1

Whilst it is true that judges cannot change the letter of the law, they can instil into it the new spirit that a new society demands.2

1 INTRODUCTION Transnational environmental law (TEL) poses significant and particular challenges for the traditional conception of the role and function of courts, and the nature of adjudication. Courts are typically rooted within the institutional and constitutional framework of a nation state; their authority and legitimacy is linked to the territory of that nation state. Further, at least within Western democracies, fundamental constitutional doctrines, and in particular the separation of powers, both insulate and limit their role. TEL questions the very essence of these assumptions. By removing the background paradigm of the nation state, the very legitimacy and authority of courts to adjudicate on TEL is cast into doubt. As the assumptions underpinning the separation of powers arguably no longer apply to TEL (since the court’s role is no longer being balanced against the role of other institutions within the state), the relevance of the separation of powers is limited and the business of judging therefore, at least in certain circumstances, becomes critically different in nature. Many difficult questions arise. What authority does a national court in one state have to adjudicate the legality and/or application of privately developed norms which apply in many states, are not particular to its jurisdiction, and may have significant implications outside it? Which court should have jurisdiction in those circumstances, and why? Which guiding principles might limit a national court’s jurisdiction in circumstances where the doctrine of the separation of powers is inapplicable and no obvious alternative guiding hierarchy applies, and where the relevant actors may be private companies and/or citizens based in entirely different states? Flowing from this, does the emergence and proliferation of TEL represent a threat to the role and legitimacy of national courts in environmental governance, as their role in disputes with significant transnational elements is not evident? In considering these questions, this chapter seeks to map out the particular challenges that TEL may pose for courts as we traditionally conceive of them (i.e., rooted in, and deriving their authority from, the nation state). While acknowledging that definitions of TEL are many

The author acknowledges funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No. 639084). 2 Sultan Azlan Shah, Interpretative Role of Judges in Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches (Sweet and Maxwell 2004), cited in Lord Carnwath, ‘Environmental Law in a Global Society’ (2015) 3 Journal of Planning and Environment Law 269–79. 1

126

Transnational environmental governance before the courts  127 and varied, it adopts the key definitional elements identified in much of the literature to date,3 and considers TEL at its essence to focus on the transboundary role of non-state actors and networks in environmental governance and, in particular, in norm creation and enforcement.4 While certain authors adopt a broader definition, following Jessup in defining transnational law as ‘all law which regulates actions or events that transcend national frontiers’, including public and private international law,5 this chapter does not deal with traditional public international law insofar as it comprises treaties or other agreements entered into between sovereign states and therefore ultimately premised on the Westphalian model from which TEL, at its core, departs. To this end this chapter focuses on three particular instances of TEL’s effect on the traditional nation state-based model of courts and adjudication: 1. courts and private norm creation; 2. courts and private enforcement of environmental law; and 3. courts and transnational diffusion of sources. In adopting this focus, the chapter does not purport to be exhaustive: there are of course other ways in which TEL may impact courts (for instance, in necessitating the further development of private international law), beyond the three selected for present purposes. Further, the chapter often employs European Union- (EU-) or European-based examples to illustrate the point being made, due to the rich body of relevant case law in this region, but again many additional examples may undoubtedly be found further afield. The chapter concludes with a short discussion of whether transnational environmental law, as distinct from other forms of transnational law, can be said to differ in any significant manner in its treatment by the courts; and what the particular added value of courts and adjudication may be in a global legal context increasingly characterized by TEL.

2

WHY IS TEL CHALLENGING FOR COURTS?

Before discussing the detail of how TEL has affected traditional adjudication, it is worth stepping back to consider why TEL poses challenges for courts. Transnational governance challenges traditional distinctions between public and private law. While authority to make (international) law has typically been assigned to the nation state, transnational law, emanating not from public but from private actors, subverts this principle. 3 For discussion of the various definitions of TEL, see V. Heyvaert and L.-A. Duvic-Paoli, Chapter 1 in this book. 4 See generally, V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 205; O. Dilling and T. Markus, ‘The Transnationalisation of Environmental Law’ (2018) 30 Journal of Environmental Law 179 (who remark, considering the various definitions of TEL, ‘Often, the different approaches only share the assumption that in the course of globalisation state-based law is complemented by other legal and regulatory formations which should be included into the study of law’). 5 See e.g., R. Wai, ‘Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization’ (2002) 40 Columbia Journal of Transnational Law 209 and the discussion in C. Cutler, ‘The Judicialization of Private Transnational Power and Authority’ (2018) 25 Indiana Journal of Global Legal Studies 61.

128  Research handbook on transnational environmental law In the case of TEL, this phenomenon entails a clear movement towards norm creation, but also norm enforcement, by private actors. Thus, writers such as Teubner have argued that there exists a transnational ‘civil society’ beyond both the state and traditional state-based public international law, which may comprise the new ‘source’ of transnational autonomous law.6 This is undoubtedly, in part, as a result of the categorical failure by nation states to take the necessary action to achieve environmental protection, as witnessed by, for instance, the current international climate and biodiversity emergencies. Private actors must, therefore, act to fill the regulatory gaps. As Yang and Percival have commented, Our shared interest in the global environmental commons makes the creation and development of environmental law a communal endeavor. Its collective nature necessitates that environmental regulation not remain the responsibility, or sovereign prerogative, of individual national legal systems or the specialized province of international lawyers and diplomats. Instead, it is an enterprise in which environmental law practitioners, scholars, activists, regulators, and legislators worldwide share an interest. 7

For instance, where national public enforcers are failing to act to enforce existing environmental law, environmental non-governmental organizations (NGOs) and private citizens are increasingly stepping into the breach. The phenomenon also, however, follows from the massive increase in the role and economic transnational power of corporations, and the concomitant (albeit still underdeveloped) demand by their shareholders and customers to act in a more environmentally responsible fashion. Like it or loathe it – and as returned to below, it is a divisive phenomenon – corporate social responsibility (CSR) is here to stay, and the actions and standards that flow therefrom may, in the case of a major global corporation or group of corporations acting together, dwarf the environmental impact that any one nation state, or even group of nation states, may have.8 Such phenomena raise difficult questions for courts. Judicial doctrines of checks and balances, developed in the context of public norms and institutions, may not readily map on to their private counterparts, as the justifications for those doctrines (separation of powers; democratic legitimacy) may no longer apply. For instance, in the field of international economic law, where states have traditionally been granted a wide margin of appreciation to determine the appropriate level of environmental protection, ought that margin of appreciation to apply where the norm under consideration has been created not by states, but by private actors? And how should the trend towards enforcement of environmental law by transnational civil society groups or individuals be reconciled with the long-standing doctrines of locus standi developed over decades by national courts, and traditionally considered to form an essential part of the institutional balance inherent in the separation of powers? 6 G. Teubner, ‘Self-Constitutionalization of Transnational Corporations? On the Linkage of “Private” and “Public” Corporate Codes of Conduct’ (2011) 18 Indiana Journal of Global Legal Studies 617. See further G. Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford University Press 2012). 7 T. Yang and R. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615. 8 See generally, T. Lyon and J. Maxwell, Corporate Environmentalism and Public Policy (Cambridge University Press 2004) (who describe corporate environmentalism as ‘the most notable trend in environmental policy since the 1990s’) and O. De Schutter, ‘Corporate Social Responsibility European Style’ (2008) 14 European Law Journal 203.

Transnational environmental governance before the courts  129 A further difficulty is evidential. If courts are to take into account transnational developments including those outside their territory, who has authority to provide proof thereof? NGOs? Other transnational actors? How might that be proof be delivered (absent judicial extraterritorial inspections), and what weight should be attributed to that evidence? While answers to these questions are only now beginning to emerge, this chapter turns now to consider three instances where the impacts of TEL on courts and judging are already clearly apparent.

3

ASSESSING TEL’S IMPACTS FOR COURTS AND JUDGING

3.1

Courts and Transnational Norm Creation

As is well documented, in the environmental context, network-based, CSR-inspired regulatory techniques have led to the development of voluntary agreements and covenants, environmental codes and charters, voluntary environmental management systems and voluntary eco-labels. The CSR concept has been warmly embraced by policy makers at national, EU and international level, who have latched onto it eagerly as fitting perfectly with the goals of sustainable development and environmental integration, as a way of combining growth and enterprise with environmental protection.9 Proponents of CSR argue that greener behaviour can give firms a market advantage (consumers, investors and employees may prefer greener firms; early development of greener technologies will give a first-mover advantage) or reduce environmental costs (energy costs; the costs of cleaning up pollution). From an environmental democracy perspective, by providing consumers with additional information on environmental performance in taking purchase decisions, market transparency can be increased. At the EU level, the European Commission has developed a CSR ‘agenda’, which is largely based on soft-law, non-binding efforts such as enhancing the visibility of CSR and disseminating good practices. However, it has also led to measures with more teeth, including a 2014 Directive on disclosure of non-financial and diversity information by large companies (with more than 500 employees) and groups.10 Critics argue, however, that voluntary environmental initiatives may be employed tactically by undertakings to avoid being regulated, or to postpone it.11 Further, research suggests that this may be a tactic that works.12 A well-known illustration within the EU was the choice of the EU car industry to enter into agreements on emissions standards, essentially in order to avoid being regulated. After unsatisfactory environmental performance, this ended in failure in 2010 when the EU lost patience, passing a Regulation on passenger car emissions.13

T. Lyon and J. Maxwell (n 8); De Schutter (n 8). Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups [2014] OJ L330/1. 11 In this way, CSR can become ‘a codeword for abandoning to market mechanisms certain questions which might otherwise be the target of regulatory approaches’, in de Schutter (n 8) 204. 12 See C. Decker, ‘Corporate Environmentalism and Environmental Statutory Permitting’ (2003) 46 Journal of Law and Economics 103. 13 Regulation 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles [2009] OJ L 140/1. 9

10

130  Research handbook on transnational environmental law Further, as a via media between private and public regulation, various types of co-regulation have been developed which maintain aspects of state involvement in the creation of the norm. In the public voluntary programme of the United States (US), for instance, the legislator or regulator establishes the key elements of the regulation – which may, for instance, include the regulatory objectives, the deadlines and mechanisms relating to implementation, methods of monitoring the application of the legislation and any sanctions which are necessary to guarantee the legal certainty of the legislation – and the firms subsequently agree on the means of implementing it.14 In other cases, as illustrated within many EU states, the regulator and industry may arrive at a negotiated agreement, which includes environmental obligations.15 At the international level, eco-management standards have been formalized in the ISO 14001 environmental management systems standard of the International Organization for Standardization (ISO).16 Such initiatives by private actors to create (transnational) industry norms may raise competition law issues, which ultimately fall to be considered by courts. Significantly, however, competition law, as interpreted and enforced in the vast majority of states, at present largely deals with private regulatory initiatives just as it would deal with any potentially collusive behaviour between private undertakings, and attributes little weight to their regulatory aim. This is largely because of the common understanding, originating in US Chicago School antitrust doctrine but subsequently widely accepted within the EU, that competition policy must, at least in principle, be insulated from non-competition or public policy concerns. This perception is, in many cases, closely linked to the idea that the goal of EU competition law is the enhancement of consumer welfare. Accepting this idea necessarily implies, for some, that environmental goals are extraneous to competition policy, and should be left to be implemented by the legislator via environmental legislation. In this view, competition policy should focus on maximizing economic efficiency: its effectiveness as a policy area will be blunted if environmental goals are added to the mix. As competition law sets important limits to the legality of private regulatory initiatives, it follows that such a narrow approach to the aims of competition policy can represent an important brake on their effectiveness.17 In the EU, the most important limitations are: ●● Article 101 of the Treaty on the Functioning of the European Union (TFEU), which prohibits anti-competitive agreements and concerted practices between ‘undertakings’, unless they can be justified pursuant to Article 101(3) TFEU; ●● Article 102 TFEU, which prohibits unilateral abuse of a dominant position by an ‘undertaking’;

An example is the US EPA’s 33/50 Program which invited firms to commit to reducing 17 priority chemicals and set as its goal a 33% reduction in releases and transfers of these chemicals by 1992 and a 50% reduction by 1995, measured against a 1988 baseline. 15 For example, the Federated Association of German Industry in 1995 agreed to propose a reduction of carbon dioxide emissions by up to 20% by 2005, in exchange for which the federal government announced the withdrawal of plans to introduce a waste heat ordinance and promised an exemption from a possible energy tax. 16 The ISO is an NGO comprised of national standards agencies of 162 countries. See www​.iso​.org. 17 See generally S. Kingston, Greening EU Competition Law and Policy (Cambridge University Press 2012) and S. Kingston, ‘Integrating Environmental Protection and EU Competition Law: Why Competition Isn’t Special’ (2010) 16 European Law Journal 780. 14

Transnational environmental governance before the courts  131 ●● in addition, Article 106 TFEU applies to regulatory efforts involving the state and private actors. The courts have the ultimate voice in interpreting each of these provisions. While detailed consideration of the expansive case law in this field goes beyond the present chapter,18 it is worth highlighting some key areas of interest arising from the competition law/private environmental governance interface to date. An important first issue is the relevance of environmental policy to the concept of an ‘undertaking’. This was famously the issue in Calì & Figli, where anti-pollution surveillance in relation to loading and unloading of acetone products was held not to qualify as an economic activity on grounds that this constituted a task in the public interest forming part of one of the ‘essential functions of the state’ in protecting the maritime environment.19 The Court of Justice of the European Union (CJEU) held that Such surveillance is connected by its nature, its aim and the rules to which it is subject with the exercise of powers relating to the protection of the environment which are typically those of a public authority. It is not of an economic nature justifying the application of the Treaty rules on competition.

As a result, Article 102 TFEU did not apply. Subsequent cases such as Ambulanz Glöckner (on emergency and ambulance services) have set out a test of whether the activities at issue have ‘always been, and are … necessarily carried on by’ bodies other than private operators.20 Applying this test, therefore, raises intriguing issues going to the heart of the public/private divide and, ultimately, each EU Member State’s view of the proper limit to private governance. The Irish domestic waste collection system is a case in point. Ireland was one of the very few states within Europe that chose to open its private waste collection sector to competition.21 Does this mean that waste collection operators constitute undertakings (and are therefore subject to competition law) in Ireland? In Panda Waste, the Irish High Court was asked to decide this issue in circumstances where Dublin’s local authorities had decided to change the applicable waste regulation to move from multiple waste collection operators to a single operator.22 In that case, the Court’s response was that local authorities constituted undertakings, meaning that the local authorities’ regulatory decisions were subject to review for compatibility with (national) competition rules. Central to the Court’s reasoning was that private operators could carry on this business under market conditions. In other jurisdictions, however, domestic waste collection might well be viewed as falling outside the scope of competition law, as an activity aimed at meeting an ‘essential public interest’ which is ‘provided for the benefit of the whole of the community’.23 Greater reliance on TEL to achieve policy goals will mean, however, that more environmental services will fall within the definition of an undertaking.24 See, for a fuller discussion, Kingston, Greening EU Competition Law and Policy (n 17). Case C-343/95 Diego Calì and Figli Srl v Servizi Ecologici Porto di Genova SpA [1997] ECR I-1547. 20 Case C-475/99 Ambulanz Glöckner v Landkreis Sudwestpfalz [2001] ECR I-8089. 21 Along with, for instance, Poland. 22 Neurendale Ltd t/a Panda Waste Services v Dublin City Council & Ors [2009] IEHC 588. 23 See the Opinion of AG Cosmas in Calì & Figli (n 19). 24 A good example is that of nature conservation which, although ostensibly a classic instance of pure public interest action, is itself being ‘economized’ by the rise in popularity of techniques such as habitat banking. 18 19

132  Research handbook on transnational environmental law Secondly, as concerns Article 101 TFEU, cases raising environmental protection issues have, in some instances, comprised cases where environmental protection requirements are simply used as a pretext for collusive behaviour between competitors, or where collusive behaviour results by way of spillover from genuine environmentally motivated initiatives. A central feature of this type of case is that anti-competitive behaviour is separable from, and not necessitated by, the environmental objective at issue. These cases may present evidentiary challenges in making such a finding of fact, but do not raise any real issue of principle as to the interrelation between competition and environmental policies. Far greater difficulties may arise where an environmental aim in fact necessitates behaviour that, at least in the absence of that aim, would be viewed as anti-competitive in object or effect. The structure of Article 101 TFEU is that agreements or practices entailing competitive restrictions with an appreciable effect on inter-state trade are prohibited (Art. 101(1) TFEU) unless it can be proven that they (Art. 101(3) TFEU): ●● contribute to ‘improving the production or distribution of goods or to promoting technical or economic progress’; ●● allow consumers a ‘fair share of the resulting benefit’; ●● do not contain restrictions that are not necessary to attain the relevant objective; and ●● do not afford the undertakings concerned the possibility of ‘eliminating competition in respect of a substantial part of the products in question’. This bipartite structure means that, unlike many other jurisdictions, the EU regime has an express locus where the restrictive effects of an agreement may be balanced against its benefits (or at least those benefits of the agreement deemed relevant for the purposes of EU competition law). Here, the Commission’s position taken in its 2004 Article 101(3) Guidelines is famously restrictive, confining relevant benefits under Article 101(3) TFEU to the agreement’s ‘pro-competitive’25 effects, meaning efficiency gains which ‘may create additional value by lowering the cost of producing an output, improving the quality of the product or creating a new product’. The Commission’s view in this document is clear: relevant benefits in this sense must be ‘objective economic benefits’. Other benefits, even if related to goals pursued by other Treaty provisions such as environmental protection, must be ignored.26 In the case of environmental protection, however, there are strong arguments that environmental benefits that are reasonably quantifiable in economic terms, using valuation techniques developed in environmental economics, constitute (qualitative) efficiency gains within this sense. A further question is under what conditions a ‘fair share’ of environmental benefits might be considered to go to consumers. While one might be forgiven for assuming that this condition would be relatively easily satisfied in the case of environmental benefits, once again this requires going beyond the approach taken in the Commission’s Article 101(3) TFEU Guidelines, where ‘consumers’ are confined to ‘all direct or indirect users of the products covered by the agreement’.27 Logically, acceptance of the relevance of environmental benefits

Guidelines on the application of Article 81(3) of the Treaty, [2004] OJ C 101/97. Ibid, para. 42. 27 Guidelines on the application of Article 81(3) of the Treaty (n 25) para 84. 25 26

Transnational environmental governance before the courts  133 to Article 101(3) surely implies broadening the concept of consumer in this sense to include consumers in future generations as well as in jurisdictions outside the EU. In practice, it is likely that the principal battlefield in many Article 101 TFEU cases where an environmental protection objective is at play will be proportionality: is it really the case that such objective necessitates this level of competitive restriction, or could the same goal be achieved through less restrictive means? In contrast to the narrow technical ‘economic approach’ of the Commission set out above, the courts of the EU and its Member States have long been used to applying such a proportionality-based approach.28 Thirdly, unlike Article 101 TFEU, Article 102 TFEU contains no express exception provision equivalent to Article 101(3) TFEU. The possibility of objective justification for prima facie abusive conduct is, however, now accepted by the CJEU as well as by the Commission, which has, in its 2009 Guidance on its enforcement priorities in applying what is now Article 102 TFEU, suggested that conditions similar to those applicable to Article 101(3) TFEU must be satisfied.29 As environmental protection arguments find their natural home at the objective justification stage, this means that similar considerations will apply to the Article 102 TFEU analysis as those set out above in the Article 101(3) TFEU context, although anti-competitive behaviour will be even more difficult to justify where a dominant market position is held. In reality, of course, it will be highly risky to rely on objective justification arguments in environmental cases as, in practice, objective justification arguments have been accepted on notoriously rare occasions. Further, the CJEU’s view of the boundaries of the objective justification concept are as yet unclear, although we can be relatively sure that the concept includes economic efficiencies or ‘objective economic justification’ (British Airways; Intel)30 as well as justification on grounds of legitimate public interest aims (Hilti, Tetra Pak II, Kanal 5).31 With regard to the latter, the Commission’s warning in its 2009 Guidance that ‘it is normally the task of public authorities to set and enforce public health and safety standards’32 should, in the environmental context, be read subject to the caveat that many formerly public environmental protection functions are now being devolved to private operators active in a regulated market. In practice, environmental justifications have in themselves succeeded in few Article 102 TFEU cases to date, generally because anti-competitive behaviour has been judged disproportionate to the environmental objective at issue. A classic example is DSD, where the CJEU 28 See further, Kingston, Greening (n 17), Ch. 3; J. Nowag, Environmental Integration in Competition and Free Movement Laws (Oxford University Press 2016), who conceptualizes such proportionality-based approaches as ‘balancing’ measures in the context of ‘preventative’ integration (which he defines as applying non-environmental rules in a manner such that environmental degradation is prevented) under Art. 11 TFEU. 29 Communication from the Commission, ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ [2009] OJ C 45/7. 30 Case C-95/04 P British Airways plc v Commission of European Communities [2007] ECR I-2331, paras 69 and 86; Case C-413/14 P Intel Corp Inc. v European Commission [2017] ECLI:​EU:​C:​2017:​632. 31 Case C-30/89 Hilti AG v Commission of the European Communities [1991] ECR II-1439; Case T-83/91 Tetra Pak II v Commission [1993] ECR II-755; Case C-52/07 Kanal 5 and TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå [2008] ECR I-9275. 32 Communication from the Commission, ‘Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ (n 29), para 29.

134  Research handbook on transnational environmental law confirmed that DSD had abused its dominant position in the market for the organization of the take-back and recovery from private final consumers of used sales packaging in Germany.33 In that case, the abuse consisted in the requirement that undertakings obligated under the German Packaging Ordinance and party to DSD’s agreements were obliged to pay DSD a fee for all sales packaging distributed within Germany which bore the green dot trademark, irrespective of whether the DSD system ultimately provided the service of collection, recycling and so on. The judgments illustrate well how the competition/environment interface cuts both ways: competition policy can benefit the operation of environmental policy in practice by working to ensure that important (and increasingly lucrative) environmental sectors such as waste management work in as efficient a manner as possible, with prima facie anti-competitive behaviour only permissible to the extent genuinely necessary to perform an environmental function. Fourthly, as concerns co-regulatory environmental initiatives involving private actors and the state, Article 106(1) TFEU sets important limits on the way in which Member States can supervise privatized environmental markets, as illustrated by the CJEU’s judgments in Dusseldorp and Sydhavnens. Both cases concern the grant by a Member State of exclusive rights within the meaning of Article 106(1) TFEU to waste disposal undertakings, where such grant was liable to create a situation where these undertakings were induced to abuse their dominant positions.34 In Sydhavnens, Article 106(2) TFEU applied to justify exclusivity, where this was necessary to ensure a sufficient flow of waste (in that case, for a new building waste facility in Copenhagen); in Dusseldorp, the Court left the Article 106(2) TFEU point to the national court, while emphasizing the Dutch government’s obligation to prove that the environmental objective could not be achieved ‘equally well by other means’.35 Such cases may be contrasted with the approach of the Dutch competition authority. The Dutch Energy Agreement for the Promotion of Sustainable Growth, entered into by Dutch private and semi-public organizations in 2013, to shut down coal-fired power plants, was found by the Dutch competition authority to restrict competition. The environmental benefits arising from that Agreement did not outweigh the negative effects on competition, according to the Dutch competition authority. In so doing, however, the Dutch competition authority used a novel approach in attempting to quantify, and thereby compare, the monetary value of the environmental benefits against the loss of consumer welfare resulting from the increase in electricity price caused by the closure of the power plants.36 Fifthly, while the private norm creation aspect of TEL has largely raised questions for competition law, at times issues of trade law have also arisen. A case in point is the CJEU’s judgment in Fra.bo, which concerned the question whether the refusal by a private German certification body to recognize the validity of an Italian-issued certificate constituted a restric-

Case C-385/07 Der Grüne Punkt – Duales System Deutschland AG v Commission of the European Communities [2009] ECR I-06155. 34 Case C-203/96 Dusseldorp BV and Others v Minister van Volkshuisvesting [1998] ECR I-4075; Case C-209/98 Entreprenørforeningens Affalds/Miljøsektion (FFAD), acting for Sydhavnens Sten & Grus ApS v Københavns Kommune [2000] ECR I-3743. 35 Case C-203/96 Dusseldorp BV and Others v Minister van Volkshuisvesting, para 67. 36 See further E. Kloosterhuis and M. Mulder, ‘Competition Law and Environmental Protection: The Dutch Agreement on Coal-Fired Power Plants’ (2015) 11 Journal of Competition Law & Economics 855–80. 33

Transnational environmental governance before the courts  135 tion to the free movement of goods pursuant to Article 34 TFEU.37 That Article prohibits quantitative restrictions on free movement of goods between Member States, or measures having equivalent effect to such restrictions, unless they are justified by and proportionate to a legitimate interest recognized by the EU Treaties or case law. However, the Article 34 TFEU prohibition is traditionally considered to apply to state, not private, measures (with private regulation falling instead to be dealt with by competition law). On the facts of Fra.bo, German law provided that the private certification body’s certification was not necessary to demonstrate that the construction products in question satisfied the requisite safety standards, but it conferred a presumption of conformity. Rejecting the private certification body’s argument that Article 34 TFEU only applied to certification by the state, the CJEU held that the private body ‘in reality held the power to regulate’ in circumstances where German law conferred a presumption of compliance to goods certified by the body; the private body in question was the only certification body for the products in question in Germany; and failure to certify would lead to serious difficulties for any undertaking wishing to place its product on the market in Germany.38 In sum, as the blurring of the public/private divide in environmental regulation continues, courts will increasingly be faced with the implications of environmental/competition integration. As contrasted with administrative regulators such as the European Commission, however, such challenges are perhaps less daunting for the EU courts (and national courts acting within the scope of EU law), which are by and large accustomed to using systematic techniques of interpretation, with the aim of ensuring a largely coherent body of law, including coherence with the EU’s environmental policy goals.39 Overall, the integrated approach evident in many of the CJEU’s judgments in competition, as well as in trade and public procurement, reflects this well.40 3.2

Courts and Private Enforcement of Environmental Law

A further key aspect of the impact of TEL before the courts concerns the emergence of norm enforcement by transnational private actors. Lord Carnwath has convincingly described the interaction between such private actors and the courts in the following terms:41

37 Case C-171/11 Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV ECLI:​EU:​C:​ 2012:​453. 38 Ibid, 36. 39 See R. Dworkin, Law’s Empire (Fontana 1986), 225; J. Bengoetxea, N. MacCormick and M. Soriano, ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’ in G. de Búrca and J. Weiler (eds), The European Court of Justice (Oxford University Press 2001) 47; D. Edward, ‘Judicial Activism: Myth or Reality?’ in A. Campbell and M. Voyatzi (eds), Legal Reasoning and Judicial Interpretation of European Law (Trenton Publishing 1996) 29; F. Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185. 40 See, e.g., Case C-389/96 Aher-Waggon GmbH ν. Federal Republic of Germany [1998] ECR I-4473; Case C-297/05 Commission of the European Communities v Kingdom of the Netherlands [2007] ECR I-476; Case C-2/90 Commission of the European Communities v Kingdom of Belgium [1992] ECR I-4421 and, in public procurement, Case C-513/99 Concordia Bus Finland Oy Ab v Helsingin kaupunki and HKL-Bussiliikenne [2002] ECR I-7213. 41 Lord Carnwath (n 2).

136  Research handbook on transnational environmental law [T]he courts can do very little on their own. They require committed individuals or organisations or states to bring the cases. They need access to technical expertise to point the way to practical solutions, and they need to engage all parties and agencies, public or private, with the powers and the resources to put those solutions into practice. Given those tools courts are uniquely placed to create the stable and legally enforceable structures necessary to ensure proper planning, supervision and enforcement. The courts cannot dictate policy. That is for government. But the courts can ensure that the policy is rational and coherent, and consistent with the scientific evidence, and that firm policy commitments are honoured.

One of the best-known examples of this phenomenon in practice is the transnational environmental enforcement carried out in multiple jurisdictions before the courts by ClientEarth, which has overall met with considerable success, bringing landmark cases before, inter alia, the United Kingdom courts,42 EU courts,43 and more recently the Polish courts,44 as well as bodies such as the Aarhus Convention Compliance Committee, where it challenged the EU’s own rules on accessing justice.45 In many of these instances, it has been partly if not wholly successful. A striking example is the successful challenge brought by ClientEarth, in its capacity as minority shareholder of the Polish state-controlled energy company Enea, to its decision to participate in the construction of the Ostrołęka C coal-fired plant.46 This kind of case illustrates a novel and important ‘upstream’ form of transnational enforcement whereby a transnational environmental NGO not only engages in transnational environmental enforcement via the commencement of legal claims, but acts to create the requisite legal standing to bring the claim (in this case, by becoming a shareholder in the Polish state energy company). Within Europe, as is well known, this aspect of TEL has been significantly reinforced by the (traditional international) legal framework of the 1998 Aarhus Convention of the UN Economic Commission for Europe, which lays down obligations for its signatories to ensure access to information, public participation, and access to justice in environmental matters.47 Of most relevance in assessing the role of the courts is Article 9 of the Aarhus Convention, which deals with access to justice in environmental matters. In essence, Article 9 seeks to decouple access to justice from certain of the limitations flowing from national procedural requirements which have posed particular difficulty in practice for environmental proceedings. One such traditionally problematic requirement has been, as mentioned earlier, the requirement of locus standi. In many States, traditional doctrines of locus standi require an applicant seeking to challenge a decision of a public authority to demonstrate that it affects his or her 42 See for instance the air pollution cases successfully brought against the UK government, most recently ClientEarth v Secretary of State for the Environment, Food and Rural Affairs, Secretary of State for Transport, Welsh Ministers and Mayor of London [2018] EWHC 315 (Admin). 43 See for instance Case C-411/17 Inter-Environnement Wallonnie ASBL and Bond Beter Leefmilieu Vlaanderen ASBL v Council of Ministers [2019] ECLI:​EU:​C:​2019:​622 (Belgian air pollution) and Case C-57/16 ClientEarth v European Commission [2018] ECLI:​EU:​C:​2018:​660 (access to information). 44 See for instance ClientEarth v Enea, judgment of the Poznań District Court of 1 August 2019 (shareholder action restricting Ostrołęka C coal-fired plant, brought by ClientEarth in its capacity as shareholder of Enea). 45 Communication ACCC/2008/32. 46 ClientEarth v Enea (n 44). 47 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus (adopted 25 June 1998, entered into force 30 October 2001) 38 ILM 517 (Aarhus Convention).

Transnational environmental governance before the courts  137 interests in a particular manner. In certain States (such as Germany for instance), a requirement to demonstrate potential infringement of a right has traditionally applied. Before the EU courts, in direct actions challenging EU measures, applicants are (by virtue of the requirement for individual concern set out in the Plaumann judgment)48 required to demonstrate that they are affected by a measure in a manner that differentiated them from other applicants. Clearly such requirements may pose very significant hurdles for public interest environmental applicants but also, specifically, for transnational public interest environmental applicants, whose activities may span many States (and indeed who may therefore, arguably, have a more complete awareness of the overall effects of individual States’ measures on the European environment). At the same time, greater enforcement by private actors (albeit acting for public interest environmental reasons) is now recognized as critical in order to address the major enforcement deficit in environmental legislation within Europe. Article 9(2) of the Aarhus Convention seeks to address these difficulties in (transnational) private enforcement by superimposing an international law standard of environmental locus standi. That provision, which concerns access to justice regarding decisions on public participation covered by Article 6 of the Convention, essentially provides that each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a) Having a sufficient interest or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6.

Article 9(2) further provides that what constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any NGO meeting the requirements referred to in Article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a). That provision in turn states that NGOs ‘promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’. Prima facie, this appears to leave considerable discretion to States in defining the minimum requirements in order for NGOs to enjoy standing. Nevertheless, it is clear that such discretion is not unlimited and, as held by the CJEU in Djurgården interpreting the equivalent transposing requirement in the EIA Directive,49 standing requirements must not be such as to run counter to the objectives of that Directive ‘and in particular the objective of facilitating judicial review of projects which fall within its scope’ (at paragraph 47). A particular question therefore arises as to whether Contracting States could, for instance, validly exclude transnational NGOs and/or public interest litigants, on the basis that their centre of gravity and/or interest is not demonstrably within the geographic territory of that state. This has not yet been conclusively decided, although certain national courts have

48 Case 25/62 Plaumann & Co. v Commission of the European Economic Community [1963] ECR 199. 49 Case C-263/08 Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd ECLI:​EU:​C:​2009:​631.

138  Research handbook on transnational environmental law accepted that geographic proximity of an applicant to the project at issue, even if bringing a claim based on environmental public interest, may be a relevant (though not decisive) factor in assessing whether locus standi exists.50 Notably, in the case of NGOs, the Aarhus Convention Implementation Guide (which is often cited as persuasive authority before the EU and national courts) observes that a requirement for environmental NGOs to have been active in a particular country for a certain number of years ‘might not be consistent with the Aarhus Convention, because it may violate the non-discrimination clause of article 3, paragraph 9’.51 Article 3(9) prohibits non-discrimination on grounds of ‘citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities’. On this analysis, the Convention in fact specifically envisages and enables not just private enforcement but specifically transnational private enforcement. It must be emphasized, however, that this interpretation remains untested before (in the case of the EU’s transposition of the Convention) the EU courts. It should be noted that, aside from the above-mentioned requirements of Article 9(2) of the Aarhus Convention, Article 9(3) imposes a further and broader requirement on Member States, in that it applies not only to decisions covered by Article 6 (on public participation) of the Convention, but rather to any ‘acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. However, it is far weaker in terms of the obligation imposed on Contracting States, providing only that, without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

For this category of actions, the general right of access to justice is therefore made expressly subject to the conditions set out in national law, without any requirement for more favourable locus standi rules. Article 9(4) of the Convention further provides that the judicial procedures covered by Article 9 shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

Further, Article 9(5) of the Convention provides, inter alia, that each state shall ‘ensure that information is provided to the public on access to administrative and judicial review procedures’. These provisions, therefore, give important clarification of the precise nature of the access to justice obligations. In particular, the Convention’s emphasis on transparency and public accessibility of environmental judgments, and the requirement to publicize access to

50 See in the Irish courts for instance Conway v Ireland, judgment of Barniville J of 16 July 2019 (unreported). 51 United Nations Economic Commission for Europe, The Aarhus Convention, An Implementation Guide (2014) 58.

Transnational environmental governance before the courts  139 justice mechanisms, further enables not only national, but also transnational private enforcement in practice. The obligation to provide public information on access to justice is couched in robust terms and, again, has been translated into EU law and applied by the CJEU.52 If the Convention is properly implemented, it should thereby be possible for individuals and groups across Europe to know how environmental justice is done before the courts of other States. In turn, this facilitates comparison and, potentially, gives ideas for possible environmental litigation strategies that may have worked elsewhere. A well-known example is the Urgenda decision in the Dutch courts53 which has inspired similar actions in proceedings across Europe and also globally.54 Overall, therefore, the Aarhus Convention represents a vital enabler to TEL in the sense of private norm enforcement. Critically, however, as a traditional instrument of public international law, the effectiveness of the Convention fundamentally depends, in the first instance, on its nation state Contracting Parties. Its mechanisms will only be effective in practice if and to the extent that those Contracting Parties give effect to it in their national legal orders (or, in the case of the EU, the EU legal order). Be that as it may, there is no doubt but that the effect of the Convention has been considerable.55 Perhaps the high-water mark to date of its impact in the EU legal order is the CJEU’s 2011 judgment in Slovak Brown Bear,56 which concerned a challenge by a Slovakian environmental NGO of the refusal on the part of the Slovak state to admit the NGO as a party to administrative proceedings concerning the grant, within Slovakia, of derogations to the system of protection, required pursuant to Article 12 of the Habitats Directive, for species such as the brown bear.57 The CJEU acknowledged that Article 9(3) of the Aarhus Convention did not contain any clear and precise obligation capable of directly regulating the legal position of individuals without subsequent implementing measures (as would normally have been required for direct effect).58 The wording of Article 9(3) itself, after all, makes clear that the requirement of access to environmental justice pursuant to that provision is subject to meeting the ‘criteria, if any’ laid down in national law. Nonetheless, the Court avoided this difficulty by relying instead on the general principle of effectiveness of national procedural remedies, which requires Member States to ensure that rights derived from EU law (in this case, the Habitats Directive) are effectively protected.59 It followed that national courts were obliged, as regards a species protected by the Habitats Directive, to interpret their national procedural

See Case C-427/07 Commission of the European Communities v Ireland ECLI:​EU:​C:​2009:​457. Case C/09/456689 Urgenda v Kingdom of the Netherlands [2015] ECLI:​NL:​RBDHA:​2015:​7196. 54 See the case note of B. Mayer, ‘The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018)’ (2019) 8 Transnational Environmental Law 167. 55 See generally, for an overview of the Convention and its implementation in EU law, S. Kingston, V. Heyvaert and A. Čavoški, European Environmental Law (Cambridge University Press 2017). 56 Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky ECLI:​EU:​C:​2011:​125. 57 For the conditions of derogation, see Art. 16 of the Habitats Directive (Council Directive 92/43/ EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora OJ [1992] L 206/7, as amended). 58 See, e.g., Case C‑265/03 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol, ECLI:​EU:​C:​2005:​213. 59 Ibid, paras 44–8. 52 53

140  Research handbook on transnational environmental law rules ‘in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention’.60 This judgment is a significant one, demonstrating a willingness on the part of the CJEU Grand Chamber to interpret its own jurisprudence creatively with a view to furthering the objectives of access to environmental justice within the EU in line with the Aarhus Convention, even in circumstances where (as here, in circumstances where no Directive on access to environmental justice has been passed) the EU legislator has not been able to achieve this result. This effectively obliges national courts, therefore, to achieve via interpretative means the aims of this aspect of the Aarhus Convention in the absence of applicable EU legislation on access to environmental justice, unless this would require a contra legem interpretation of national law. In this way, Slovak Brown Bear and subsequent case law applying this doctrine demonstrate the CJEU’s firm commitment to the spirit of the Convention in enabling effective private enforcement of environmental law. Yet, even in the case of the EU, the resistance to broadening fundamental judicially developed concepts such as locus standi remains. In an interim report of 2011, the Aarhus Convention Compliance Committee questioned the compatibility with the Convention of the EU’s own restrictive conditions of locus standi under Article 263 TFEU actions, and in particular the restrictive approach to the doctrine of ‘individual concern’ exemplified by the WWF judgment, which was handed down after the EU had approved the Aarhus Convention.61 In a second report of 2016, following a complaint by ClientEarth, the Compliance Committee confirmed its concerns, finding that there had been no intervening jurisprudence to justify amending its position: The Committee regrets that despite its finding with respect to the national courts, the CJEU does not consider itself bound by this principle. The Committee considers that if the EU Courts had been bound in the same way as the national courts, the EU might have moved towards compliance with article 9, paragraph 3, and consequently article 9, paragraph 4.62

To date, the recommendations of the Compliance Committee have not been endorsed by the Meeting of the Parties (MOP). Rather, in circumstances of some controversy, that decision was postponed at the 2017 MOP to the next MOP to be held in 2021. At the 2017 MOP, the European Commission had suggested that the draft findings be rejected as they ‘challenge constitutional principles of EU law that are so fundamental that it is legally impossible for the EU to follow and comply with the compliance committee’s findings’.63 However, the Council of the EU rejected the Commission’s proposal. Instead, it agreed on a conditional acceptance of the draft decision, proposing to ‘take note’ of the findings of the Compliance Committee rather than ‘endorsing’ them.

Ibid, para. 50. See Case ACCC/C/2008/32, Part I of the Findings and recommendations of the ACCC, adopted on 14 April 2011. 62 Case ACCC/C/2008/32, Part II of the Findings and Recommendations of the ACCC, adopted on 17 March 2017, para 83. 63 Aarhus Convention Compliance Committee, Open statement by the Aarhus Convention Compliance Committee regarding its findings on communication ACCC/C/2008/32 (part II) concerning compliance by the European Union (2008) 1. 60 61

Transnational environmental governance before the courts  141 The controversy demonstrates that, while transnational environmental enforcement may be desirable in principle – and the EU has itself expressed its strong support for the notion64 – its application in practice to traditional locus standi doctrines remains contested, and the fear of opening the EU’s judicial floodgates to large volumes of applications remains. 3.3

Courts and Transnational Diffusion of Legal Sources

A final aspect of the impact of TEL in courts, which can be treated more briefly but should not be forgotten, is the transnational process of diffusion of legal sources that is becoming increasingly common in many jurisdictions. Such diffusion may take place through relatively formalized means, in the form of citation by one court of the jurisprudence of the court of another state, an international court or indeed a subnational court. The evidence shows this feature of transnational law is becoming increasingly common: for instance, international courts frequently refer to the jurisprudence of other international courts and bodies in other matters under international law, and national courts increasingly refer to interpretations of the same international norms by courts of other states.65 More broadly, such diffusion may be underpinned and enabled by less formalized means of communication. In the area of environmental law, for instance, one can take the example of the European Forum of Judges for the Environment which states its aim to be ‘to promote the enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law, by exchanging judicial decisions and by sharing experience in the area of training in environmental law’. The Forum organizes the exchange of experience, provides education, and also prepares statements on legislative procedures at EU level. As such it is strongly arguable that such forums, as transnational judicial networks, in effect act as institutional facilitators for the emergence and recognition of TEL before the courts.66 Yet it should not be forgotten that such transnational processes of diffusion are not without controversy. This is famously so in jurisdictions such as the US, where the legitimacy of judicial reliance on foreign or external sources is hotly debated, amid warnings against what Bork has memorably termed ‘the insidious appeal of internationalism’.67 Indeed, on the occasion of his confirmation hearings before the US Senate, Chief Justice Roberts of the US Supreme Court gave a forceful view on what he saw as the dangers to courts and adjudication posed by such diffusion, by using what has become known in the US debate on the matter as the ‘cocktail party’ scenario:68

64 See further European Commission, Commission Notice on Access to Justice in Environmental Matters, C(2017) 2616 final. 65 See E. Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 Journal of Legal Studies 547. 66 Ibid. 67 R. Bork, Coercing Virtue: The Worldwide Rule of Judges (AEI Press 2003) 22. 68 See The New York Times, ‘Court in Transition: I Believe that No One Is Above the Law under Our System’ (14 September 2005). See further, D. Kochan, ‘Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law’ (2005) 29 Fordham International Law Journal 507.

142  Research handbook on transnational environmental law Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don’t find it in the decisions of France or Italy, it’s in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context. Looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They’re there. And that actually expands the discretion of the Judge. It allows the judge to incorporate his or her own personal preferences …

A further, and striking, example of judicial reluctance of this nature is the recent refusal of the Irish High Court, in proceedings brought challenging the validity of Ireland’s national climate strategy essentially based on human rights grounds, to consider an amicus brief lodged by the United Nations Special Rapporteur for Climate Change and Human Rights. Ruling that the brief was inadmissible, the High Court – quite remarkably – reasoned that the Special Rapporteur did not in fact possess sufficient expertise in the variety of national court jurisdictions cited as examples where human rights-based approaches had been employed in climate cases.69 Conversely, writing about diffusion of sources, Perez considers such phenomenon as an example of what he terms ‘networked constitutionalism’, which considers the transnational network of legal regimes as a network consisting of multiple layers, and in which central regimes play a more significant role in facilitating the diffusion of knowledge, in recruiting new subjects, and in expanding the network by forging new ties with external transnational law regimes.70 Within this network, he argues, validity is created by the very act of cross-referencing of legal norms despite the lack of any legislative basis for the same. Moreover, the ‘emergence of a joint ethos through cross-referencing can act as a substantive legitimizing mechanism’, guiding the network and providing it with a common ground (such as the concept of sustainability in TEL).71 Going further, Yang and Percival have argued that such processes represent the emergence of a self-standing body of global environmental law, whereby principles such as polluter pays, environmental impact assessment and the permitting of pollution have, through convergence, integration, and harmonization created a few principal approaches to regulation that are being embraced with local variations, blurring traditional distinctions between national and international law. Environmental legal principles can no longer be seen as belonging to any one particular system, suggesting that their transfer is an act of ‘lending.’ Like the many global environmental goods that they protect, these legal principles have become part of the global commons. As part of a system of global law, they are at home everywhere.72

Such arguments constitute creative and important attempts to deal with the core limits to this form of transnational law creation, namely, legitimacy and legal certainty; themes to which the conclusion below will return. Whatever one may think of the dangers of the cocktail party,

See Friends of the Irish Environment v The Government of Ireland and the Attorney General (2017 No. 793 JR). The main judgment in this matter was delivered on 19 September 2019 (not yet reported), dismissing the claim. 70 O. Perez and O. Stegmann, ‘Transnational Networked Constitutionalism’ (2018) 45 Journal of Law and Society 135, 143. 71 Ibid, 149. 72 Yang and Percival (n 7), emphasis added. 69

Transnational environmental governance before the courts  143 the views expressed by Chief Justice Roberts represent a fear held by certain elements of the judiciary and, while particularly prevalent in the US, they are not confined to it.

4 CONCLUSION Bringing the above threads together, TEL may be seen as an excellent frontrunner in testing the broader challenges posed by transnational law before the courts. It is unsurprising that this is so: a transnational approach flows not only from the cross-border nature of many of the key actors involved (such as multinational corporations), but also from the very environmental problems at issue, many of which are of course inherently cross-border in nature and, in Yang and Percival’s terms, ‘global environmental goods’. While some have argued that the emergence of transnational law constitutes a significant risk for courts,73 the above examples suggest that this is far from being so. In fact, the courts within Europe have been addressing the challenges posed by TEL in terms of private norm creation (via competition law) and private enforcement of environmental law (via the Aarhus Convention) for many years now. Further, these examples clearly show the continued added value of courts as transnational regulatory actors. In particular, courts have represented the ‘insertion point’ for TEL into the traditional legal system, embedding non-legal norms into legal spheres. In this, courts have conferred authority and legitimacy on private norms that may otherwise be lacking, increasing legal certainty in the process. As the competition law example illustrates, courts are excellently placed to balance the stated benefits of the private norm at issue with the broader interests of society as expressed in law, which sectoral private actors may have neither the expertise nor the institutional legitimacy to do. In so doing, courts provide a formal forum in which TEL may be challenged and, conversely, consolidated.74 Further, while courts are not politically representative institutions, the emergence of transnational enforcement of environmental law in courts by private actors offers an important means by which societal convictions and interests may come before the formal legal system and be heard.75 In this way, courts constitute an important means by which environmental NGOs and interested private individuals can voice their concerns which, in turn, helps to integrate broader environmental concerns into judicial decision making and, thereby, the legal system as a whole.

73 See for instance the discussion in O. Frishman, ‘Should Courts Fear Transnational Engagement?’ (2015) Vanderbilt Journal of Transitional Law 59, arguing that Courts, learning from the positive experience of other courts in the transnational organizational field, are likely to design their intended images to be similar to the intended images of foreign ‘successful’ courts. These intended images may not fit with national political and social circumstances within the country and the national expectations of the court. The result may be a decrease in the court’s legitimacy and may have grave consequences for the court, especially regarding the public support it enjoys and the likelihood that its decisions, especially controversial ones, will be enforced. (99–100) 74 See, discussing corporate self-governance in the court, Cutler (n 5). 75 See further J. Kuyper and T. Squatrito, ‘International Courts and Global Democratic Values: Participation, Accountability, and Justification’ (2017) 43 Review of International Studies 152.

144  Research handbook on transnational environmental law Moreover, the public nature of adjudication, and the requirement for a public statement of reasoning therein, may in turn offer further impetus for public discussion and debate, and indeed in some cases the very initiation of a case is motivated in part by the opportunities brought by legal proceedings to bring vital environmental issues, such as climate change, further into the public consciousness (a phenomenon echoed in the quotation at the outset of this chapter). The Aarhus Convention constitutes a particularly intriguing example of the interface between TEL and the traditional legal system, as a system aimed at increasing the role of private parties as actors in (transnational) environmental enforcement, but which system is fundamentally enabled by the state and traditional conceptions of law (namely, legal transposition of the Aarhus principles into national legislation). As such it may be compared with co-regulatory initiatives in the field of private norm creation, representing a via media linking the regulatory power of private actors and the state and always, ultimately, underpinned by the legitimacy and authority of courts.

9. Facing the legitimacy challenge: law as a disciplining force for transnational environmental governance Josephine van Zeben1

1 INTRODUCTION Governance that surpasses the geographical and jurisdictional boundaries of the nation state raises important questions. This is particularly true when we consider the sources of legitimacy for transnational governance; how do we justify the adoption and enforcement of legal rules that regulate and restrain individual and collective behaviours? The answers to this question – especially with respect to transnational environmental governance – are complicated not only by the geographical ‘boundarylessness’ of transnational governance (in terms of its subjects and objects), but also by the involvement of non-state actors, the unilateral nature of transnational governance as compared to the consensual structure of international law, and the interdisciplinarity required to effectively address environmental impacts. Law plays a formative role in providing and strengthening the legitimacy of transnational environmental governance. At first glance, the formalization of transnational processes underlines their legitimacy. However, in the absence of a tailored approach, formalization risks reinforcing existing biases in favour of state-like actors and processes, whose monopoly transnational governance has been created to weaken.2 Transnational environmental governance (TEG) is by definition developed by and addressed to a broader audience than that involved in traditional lawmaking and governance.3 This has many potential advantages in terms of increased levels of expertise, participation, representativeness and democratic support. At the same time, these strengths could turn into weaknesses when expertise is used to pursue private rather than public interests, or successful lobbying results in unequal representation in the regulatory process. The ‘law’ – both substantive and procedural – is therefore not inherently legitimate to each actor involved. Any consideration of the law as a legitimacy ‘builder’ for a system, such as transnational environmental governance, requires close examination of the position of law within such a system. This chapter considers the relationship between law, transnational environmental governance and legitimacy in two steps: first, it considers the relationship between law and legitimacy in TEG by discussing law as a source of legitimacy in its own right; the role of law within TEG; and, finally, the extent to which law acts as a source of legitimacy within TEG. Secondly, the polycentric nature of the maturing transnational environmental governance is I am grateful to Joshua Pike for editorial assistance and the editors for feedback on earlier versions. See e.g., N. Gunningham and C. Holley, ‘Next-Generation Environment Regulation: Law, Regulation and Governance’ (2016) 12 Annual Review of Law and Social Science 273. 3 The distinction between lawmaking, governance and regulation will be discussed in Section 3, as will the definition of transnational environmental governance used in this chapter. 1 2

145

146  Research handbook on transnational environmental law highlighted, together with its implications for the role of law – generally and as a source of legitimacy – within TEG systems.

2

LAW AND LEGITIMACY IN TRANSNATIONAL GOVERNANCE

It is hard to provide a meaningful definition of legitimacy independent of the specific context in which law is created – specifically with reference to the actors creating the laws4 – and the audience which it addresses.5 This section will therefore briefly set out the general relationship between law and legitimacy, before discussing the role of law in transnational governance in more detail, and bring these two issues together in considering how law can act as a legitimating force in transnational environmental governance. 2.1

Law and Legitimacy

Law and legitimacy have a complex multidirectional relationship. Legitimacy refers to the right to rule and the recognition of the ruled of that right.6 As such, law acts as a legitimizing source for many different types of behaviour. For example, acting intra vires is one of the main tests of legitimate actions taken by government officials.7 However, without substantive norms of behaviour, this definition of ‘legitimate rule’ could also refer to dictatorships. For law to act as a cornerstone of the rule of law,8 which in turn provides the foundation for most constitutional democracies,9 it must itself be legitimate.

In the context of international law, consider T. Franck, ‘The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium’ (2006) 100 American Journal of International Law 88. 5 On the link between social organization theory and criminal law enforcement/compliance, see T. Meares, ‘Social Organization and Drug Law Enforcement’ (1998) 35 American Criminal Law Review 191. 6 D. Sternberger, ‘Legitimacy’ in D.L. Sills (ed.), International Encyclopedia of the Social Sciences (Vol. 9, Macmillan 1968) 244; D. Beetham, The Legitimation of Power (Macmillan 1991); J.-M. Coicaud, Legitimacy and Politics (Cambridge University Press 2002); T. Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’ (2006) 57 Annual Review of Psychology 375; A. Bottoms and J. Tankebe, ‘Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice’ (2012) 102 Journal of Criminal Law and Criminology 119, as quoted in J. Jackson and others, ‘Why Do People Comply with the Law? Legitimacy and the Influence of Legal Institutions’ (2012) 52 British Journal of Criminology 1051, 1. 7 See e.g., P. Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57(1) Cambridge Law Journal 63; M. Elliott, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law’ (1999) 58 Cambridge Law Journal 129. 8 The debate on what constitutes legitimate law, and the rule of law, is long standing. For an impression, see R. Bellamy (ed.), The Rule of Law and the Separation of Powers (Routledge 2015). 9 G. O’Donnell, ‘The Quality of Democracy: Why the Rule of Law Matters’ (2004) 15 Journal of Democracy 32; M. Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 Southern California Law Review 1307. See conversely, J. Raz, Practical Reason and Norms (Oxford University Press 1999) (arguing that legitimate law has no (explicit) relationship to democracy). 4

Facing the legitimacy challenge: law as a disciplining force  147 People’s decision to obey the law tends to be strongly linked to its legitimacy and the legitimacy of the institutions implementing and enforcing it.10 Some have argued that people’s compliance with the law is grounded in a fear of sanctions and not in law’s claim to legitimate authority.11 That said, in cases of illegitimate rule, and a related illegitimacy of law, this fear of sanctions may not be enough to overrule people’s decision to disobey the law due to its illegitimate nature.12 Beyond the nation state, legitimacy is an important driver for the state’s adherence to international law.13 It is not always clear what determines people’s perception of the law as legitimate or illegitimate. Moreover, people’s perception of the law as legitimate may be more important than relatively objective measures of legitimacy relating to, for instance, input, process or output. People’s perceptions of the law tend to closely correlate to people’s individual beliefs as to what the law should be. The latter effect is so strong that recent empirical research found that people’s beliefs as to what the law should be are an important determinant in what they believe the law is.14 This raises important additional questions about how legitimate laws that run against such beliefs are viewed. There is ample evidence that people are less likely to comply with laws when they run counter to personal norms, especially when people do not intrinsically value compliance.15 The importance of individual perceptions and beliefs for the legitimacy of law, and the legitimating role played by the law, cannot be overstated. However, the high level of heterogeneity between the actors affected by transnational governance complicates the mapping of differences in ‘legitimacy perceptions’ between these groups within the scope of this project.16 Therefore, this chapter focuses more narrowly on the role that institutions themselves play in shaping people’s perceptions of their legitimacy through the use of law. The main legal model used to categorize bases for legitimacy, especially in the grey area between national, international and transnational law,17 is in reference to input, output and throughput legitimacy.18 Input legitimacy is achieved through participation by the people, 10 There is a rich body of work on this issue within criminology, see for example Jackson and others (n 6) (on use of force by police); T. Meares, ‘Norms, Legitimacy and Law Enforcement’ (2000) 79(2) Oregon Law Review 391. 11 F. Schauer, The Force of Law (Harvard University Press 2015). 12 For the distinction between legitimacy, rational persuasion and power as reasons for rule compliance, see D. Bodansky, ‘Legitimacy’ in D. Bodansky, J. Brunnée, and E. Hey (eds), Oxford Handbook of International Environmental Law (Oxford University Press 2008) 706–8. 13 See e.g., J. Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’ (2004) 64 ZaöRV 547; M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15 European Journal of International Law 907. 14 See A. Rowell, ‘Do People Know the Law?’ (2019) 51 Arizona State Law Journal 225. 15 T. Tyler, Why People Obey the Law (Princeton University Press 2006); see also T. Tyler, ‘Psychological Perspectives on Legitimacy and Legitimation’ (2006) 57 Annual Review of Psychology 375. 16 K. Murphy, T. Tyler, and A. Curtis, ‘Nurturing Regulatory Compliance: Is Procedural Justice Effective when People Question the Legitimacy of the Law?’ (2009) 3 Regulation and Governance 1 (on empirical evidence beyond the United States). 17 Extensive work has been done on the EU’s legal system, which defies existing models of national or international law. See, for a recent inquiry into the nature of EU governance, J. van Zeben and A. Bobic (eds), Polycentricity in the European Union (Cambridge University Press 2019). 18 V. Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and “Throughput”’ (2013) 61 Political Studies 2. A similar approach is applied by Cohen and others in dis-

148  Research handbook on transnational environmental law output legitimacy through effective results for the people. Throughput legitimacy on the other hand is governance ‘with the people, analysed in terms of their efficacy, accountability, transparency, inclusiveness and openness to interest consultation’.19 Unsurprisingly, these three types of legitimacy interact, with negative throughput processes having a strong negative effect on perceived input and output legitimacy.20 Figure 9.1 incorporates two extensions of this model: first, law is specified as input, process and output. Given our focus on law as a legitimizing force, this emphasis is added to distinguish between legal rules that govern input, process and result as an output, and other factors that contribute to legitimate input, process and output, such as information, resources, and non-legal outputs. Secondly, the figure also shows that the relationship between institutional legitimacy and law is multidirectional: while law – related to input, process and output – affects the legitimacy of institutions, institutions with a high level of established legitimacy (for example a national parliament or constitutional court) can also use some of this legitimacy to increase the legitimacy of law as an input, process or output.

Figure 9.1

Multidirectional relationship law and institutional legitimacy

The latter is particularly relevant in the context of this chapter as the relative youth of most transnational environmental governance systems means that the law tends to be considered as a legitimizing force for TEG’s institutions. However, the impact of institutional legitimacy on transnational law is becoming increasingly relevant, particularly in areas where transnational law is displacing national and international law.

3

LAW IN TRANSNATIONAL ENVIRONMENTAL GOVERNANCE

In order to consider the role of law in TEG, we must first define the scope of TEG. Transnational environmental governance encompasses all norms that constitute transnational environmental law and regulation; both of which are created beyond the ‘sole authorship and control of national public authorities which have received a mandate and competences to that effect in national law’.21 Many transnational regimes continue to include these actors but

cussing the legitimacy of international courts. They refer to ‘source, process and result-oriented factors’; see H.G. Cohen and others, ‘Legitimacy and International Courts – A Framework’ in N. Grossman and others (eds), Legitimacy and International Courts (Cambridge University Press 2018) 4–5. 19 Schmidt (n 18) 2. See also Cohen and others (n 18) 2. 20 Schmidt (n 18). See also Cohen and others (n 18). 21 V. Heyvaert, Transnational Environmental Regulation and Governance (Cambridge University Press 2019) 1.

Facing the legitimacy challenge: law as a disciplining force  149 they are no longer the only, or most important, drivers of law and regulation.22 Law features in transnational environmental governance in several noteworthy ways: as a means through which to create transnational environmental governance regimes; as a basis for transnational environmental regulation; and as a result of transnational environmental governance (see Figure 9.2). Transnational environmental law (TEL) is perhaps the most salient example of the latter. It is important to note that TEL does not only comprise those laws created through transnational environmental governance; it also includes law from other sources, such as national and international law.

Figure 9.2 3.1

Roles of law in transnational environmental governance

Law Used to Create Transnational Environmental Governance Systems

The powers and responsibilities of many actors active in TEG continue to be shaped by their respective national jurisdictions. However, some have also been created or empowered by transnational environmental law itself. This affects the legitimacy of TEG acts and the rules that they help shape. This is true for ‘new’ transnational actors but also for established institutions, such as courts and parliaments. For the latter, their engagement in TEG is often based on existing national or international law. These laws tend to have a high level of legitimacy, especially when they originate from established institutions. However, they can be ill-fitted for the TEG tasks they are applied to, undermining their legitimacy in this particular setting. 3.2

Law and Transnational Regulation

The distinction between law and regulation is fundamental. This chapter follows the reasoning adopted by Hevyaert: regulation concerns the communication of norms and how they are to be achieved, while law relates to the substance of the norms.23 Regulation – especially coercive measures used as a means of regulation – tends to rely on a legal basis for its legitimacy. In light of the heavy reliance on regulation within TEG, laws can serve to legitimate derivative regulations, assuming that the law itself is considered ‘legitimate’. In situations where transnational systems are incapable of adopting laws and have to rely entirely on regulations, institutional legitimacy becomes even more pressing since law cannot act as a legitimating force. This institutional legitimacy can still have a legal flavour, as the founding statutes of such an

See in detail Heyvaert’s categorization of transnational environmental regulation types: ibid, 38 ff. Ibid, 27. The author acknowledges that much more could be said about this distinction, and about the distinction between regulatory and non-regulatory behaviour (see on this also Heyvaert: ibid, 33), which falls outside the scope of this chapter. 22 23

150  Research handbook on transnational environmental law institution tend to set out the limits of institutional power.24 That said, not all transnational governance systems have yet been formalized in such a way. This means that they may still be subject to various national laws rather than a more tailored transnational regime specific to their situation. 3.3

Transnational Environmental Law

Transnational environmental law (TEL) has several features which are either unique in themselves, or unique in combination with each other. As observed by Shaffer and Bodansky, transnational law can develop through the impact of unilateral legal developments in one jurisdiction,25 as well as through the adoption of rules in transnational processes, which can involve the mediation by international law and institutions.26 Moreover, these transnational processes tend to be shared between state and non-state actors, or even be driven entirely by non-state actors.27 Examples of the latter type of transnational governance include environmentally focused rules set by non-state actors in ways that reflect consumer preferences regarding the production and sale of products and services, such as wood, coffee and tourism.28 TEL interacts with transnational environmental regulation as well as with international and national environmental law but the hierarchy between these sources of law is not self-evident and remains a source of academic and legal debate.29

4

LAW AS LEGITIMIZING FORCE IN TRANSNATIONAL ENVIRONMENTAL GOVERNANCE

This section brings together the general observations on law and legitimacy and the specific roles that law plays in TEG. The variety of TEG regimes prevents an exhaustive account of these roles but building on the observations presented in the preceding subsections gives the results shown in Figure 9.3. While Figure 9.3 demonstrates why law can act as a legitimizing force in TEG systems – for example by constituting a legitimate input in the creation of a TEG system or TER – it

24 For a discussion of these limits, see J. van Zeben, ‘Governmental Environmental Action: Legal Bases and Restraints’ in K. Richards and J. van Zeben (eds), Policy Instruments in Environmental Law (Edward Elgar 2020). 25 In some contexts, this has also been referred to as ‘unilateral regulatory globalization’, see e.g., A. Bradford, ‘The Brussels Effect’ (2012) 107(1) Northwestern University Law Review 1, 3. 26 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International law’ (2012) 1(1) Transnational Environmental Law 31. 27 For a detailed overview of types of transnational regimes within environmental law, see Heyvaert (n 21) Ch. 2.4. 28 See, in detail, B. Cashore, ‘Legitimacy and the Privatization of Environmental Governance: How Non-State Market-Driven (NSMD) Governance Systems Gain Rule-Making Authority’ (2002) 15(4) Governance: An International Journal of Policy, Administration, and Institutions 503. 29 Much of this work comes together in the journal Transnational Environmental Law, available through www​.cambridge​.org/​core/​journals/​transnational​-environmental​-law.

Facing the legitimacy challenge: law as a disciplining force  151

Figure 9.3

Law as legitimizing force in TEG

does not yet tell us how it does so. Here lessons taken from organizational sociology can be informative.30 Organizational sociology scholars have defined legitimacy as ‘a generalized perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs and definitions’.31 Within this, Suchman defines three types of legitimacy: interest-based pragmatic legitimacy, value-oriented moral legitimacy, and culturally focused cognitive legitimacy. These different types of legitimacy are based on different logics, as summarized in Table 9.1 below.32 Notably, legitimacy is seldom acquired accidentally. Rather it is an outcome that is actively pursued by organizations through informing, but also the manipulation of, intended audience(s).33 Moreover, different types of legitimacy have different durability.34 For example, achieving interest-based pragmatic legitimacy is relatively easy to achieve – comparable to the output legitimacy enjoyed by the European Union (EU) – but also easiest to lose as it is very result-oriented and dependent on an organization’s (perceived)35 ability to continue to provide public or private goods to its audience.36 In line with findings on the perceived legitimacy of substantive legal rules, moral and cognitive legitimacy are extremely durable but also correspondingly harder to achieve. Once established, however, the value-oriented moral legitimacy of law (for example, a law prohibiting murder) can be such that it may extend to agencies that fail to obtain other types of legitimacy (such as an underfunded police force that fails to enforce laws against murder).37

The application of this model builds on the author’s work in J. van Zeben, ‘Transnational Law’s Legitimacy Challenge for International Courts’ in P. Pinto de Albuquerque and K. Wojtyczek (eds), Judicial Power in a Globalized World – Liber Amicorum Chief Justice Vincent de Gaetano (Springer, forthcoming). 31 M. Suchman, ‘Managing Legitimacy: Strategic and Institutional Approaches’ (1995) 20 Academy of Management Review 571, 574. 32 Table adapted from Cashore (n 28) 515. 33 Ibid, 516. 34 Ibid. 35 Arguably, Suchman’s definition of legitimacy depends more heavily on whether an organization is perceived to act in a certain way, rather than actually acting in a certain way. Space precludes a detailed discussion of the important questions this raises regarding events and information that form people’s perceptions and how ‘sticky’ these perceptions tend to be when people are faced with a change in facts. On this, see also Rowell (n 14). 36 On the EU, see J. Weiler, ‘Europe in Crisis: On “Political Messianism”, “Legitimacy” and the “Rule of Law”’ (2012) Singapore Journal of Legal Studies 248. 37 With thanks to Joshua Pike for this illustration. 30

152  Research handbook on transnational environmental law Table 9.1

Types and sources of legitimacy

Type of Legitimacy

Source

Interest-based pragmatic legitimacy

Narrow self-interest

Value-oriented moral legitimacy

Guiding values about the ‘right thing’ to do

Culturally focused cognitive legitimacy

From a cognitive valuation that something is ‘understandable’ or ‘to do otherwise is unthinkable’

An important distinction between the model of legitimacy proposed here and the definitions often used within legal scholarship is the fact that legitimacy is something given to an organization by an external audience, which is either directly or indirectly affected by the organization’s behaviour.38 To a legal audience, the term ‘external’ may be counter-intuitive as it may be thought to refer to an audience outside the organization’s jurisdiction. However, ‘external’ in this context refers only to the relevant audience being outside the organization, i.e., not part of the organization itself. Admittedly, the line between external and internal is not easily drawn when dealing with state actors – how to place oneself outside the state whose rules affect your freedoms, apart from perhaps relinquishing citizenship and/or physically moving away? However, for questions relating to transnational law, this definition works remarkably well, given that there is no set jurisdiction or sphere of influence for the non-state actors who have become involved in lawmaking. Equally, unilateral acts of domestic state-based law that become influential in other jurisdictions tend to do so exactly due to their perceived legitimacy among ‘external’ audiences. This is one of the reasons why viewing transnational governance from an organizational lens may have certain advantages. Specifically, this organizational model may be used to recognize the types of legitimacy that more- and less-developed regimes within the transnational governance sphere pursue through the use of law. Predictably, areas of transnational governance linked to market processes rely most heavily, and often very successfully, on interest-based pragmatic legitimacy. This is not to say that moral and cognitive legitimacy play no part in transnational governance. Many transnational regimes, such as those related to corporate social responsibility,39 are linked specifically to these legitimacy logics. Moreover, transnational regimes that start out as pragmatic systems may become internalized to such an extent that moral and/or cognitive legitimacy attaches to them.40 One way in which this process can be speeded up is through the acknowledgement

38 Cashore (n 28) 516–18, refers to these audiences as Tier I (directly affected) and Tier II (indirectly affected civil society) audiences. 39 See e.g., Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003). 40 While this may be a positive development with respect to the durability of that specific transnational legal regime, it also increases the risk of path dependency within the regime, making it less flexible and able to respond to changes in the needs of the affected audience. On path dependency more generally, see B. Peters, J. Pierre and D. King, ‘The Politics of Path Dependency: Political Conflict in Historical Institutionalism’ (2005) 67(4) The Journal of Politics 1275. On the need for responsive regulation, see L. Bennear and J. Wiener, ‘Adaptive Regulation: Instrument Choice for Policy Learning over Time’ (2019), www​.hks​.harvard​.edu/​sites/​default/​files/​centers/​mrcbg/​files/​Regulation​%20​-​%20adaptive​%20reg​%20​-​ %20Bennear​%20Wiener​%20on​%20Adaptive​%20Reg​%20Instrum​%20Choice​%202019​%2002​%2012​ %20clean​.pdf.

Facing the legitimacy challenge: law as a disciplining force  153 and reinforcement of transnational law through other institutions, such as international courts, insofar that these institutions themselves are viewed as legitimate.41 In brief, acquiring institutional legitimacy is a process that is largely determined by conscious actions of the institution. In this process, law can play an important role; it can provide legitimate ‘input’ and processes that frame the institution’s actions, and it can be an output to which a higher or lower level of legitimacy can attach. At least some of this legitimacy is subjective insofar as it can differ between audiences and over time. As a legitimizing force for TEG, law is therefore an important tool. It is, however, contextualized by many other factors, including the perception of the law itself by different affected audiences. As TEG systems mature, this multiplicity of audiences and constituencies deserves further attention.

5

POLYCENTRIC LEGITIMACY IN MATURING TRANSNATIONAL ENVIRONMENTAL GOVERNANCE SYSTEMS

Polycentric governance, as developed by Vincent and Elinor Ostrom, is considered to bring many advantages to the governance of natural resources, including greater adaptive capacity, better institutional fit, and mitigation of risk.42 However, polycentric systems, which many transnational governance systems arguably already are, are notoriously complex and their relationship with ‘law’ in the shape of formal rules is not always clear. This section will reflect on the polycentricity of TEG, the role of law and its implications for legitimacy. 5.1

Transnational Environmental Governance as a Polycentric System

The term polycentric governance has become increasingly popular in environmental circles in the last decade.43 It has also proliferated in fields as varied as human rights,44 urban governance,45 and disaster relief.46 Across disciplines and fields of study, polycentric governance has come to be used to refer to any governance system that involves a multiplicity of actors and centres of authority without a clear hierarchical structure. The theory developed by Vincent

On courts, see e.g., M. Pollack, ‘The Legitimacy of the Court of Justice of the European Union: Normative Debates and Empirical Evidence’ in N. Grossman and others (eds), Legitimacy and International Courts (Cambridge University Press 2018); A. von Bogdandy and I. Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification’ (2012) 23(1) European Journal of International Law 7; Cohen and others (n 18). 42 See e.g., K. Carlisle and R. Gruby, ‘Polycentric Systems of Governance: A Theoretical Model for the Commons’ (2017) Policy Studies Journal 1. 43 E. Ostrom, ‘Polycentric Systems for Coping with Collective Action and Global Environmental Change’ (2010) 20 Global Environmental Change 550; D. Cole, ‘From Global to Polycentric Climate Governance’ (2011) 2 Climate Law 395; A. Jordan, D. Huitema, H. van Asselt and J. Forster (eds), Governing Climate Change: Polycentricity in Action? (Cambridge University Press 2018). 44 M. Burger, ‘Bi-Polar and Polycentric Approaches to Human Rights and the Environment’ (2003) 28 Columbia Journal of Environmental Law 371. 45 C. Roth and others, ‘Structure of Urban Movements: Polycentric Activity and Entangled Hierarchical Flows’ (2011) 6(1) PLoS ONE e15923; M. Burger and E. Meijers, ‘Form Follows Function? Linking Morphological and Functional Polycentricity’ (2012) 49 Urban Studies 1127. 46 C. Coyne and J. Lemke, ‘Polycentricity in Disaster Relief’ (2011) 4 Studies in Emergent Order 40. 41

154  Research handbook on transnational environmental law and (later) Elinor Ostrom is, however, more descriptively precise and incorporates a normative focus on self-governance by individuals. Polycentric governance proper takes place in a system composed of many centres of decision-making which are formally independent of each other. Whether they actually function independently, or instead constitute an interdependent system of relations, is an empirical question in particular cases. To the extent that they take each other into account in competitive relationships, enter into various contractual and cooperative undertakings or have recourse to central mechanisms to resolve conflicts, the various political jurisdictions [in a metropolitan area] may function in a coherent manner with consistent and predictable patterns of interacting behaviour.47

There are several key attributes and institutional essentials that must be in place in order for the resulting system to remain balanced, and to prevent it from reverting to another form of pluricentric governance, such as multilevel governance or federalism.48 The aim of polycentric governance is to ensure individual self-governance within the system.49 Scholars have identified significant benefits of well-functioning polycentric systems, including efficiency, adaptation, and mitigation of risk. Self-governance is similarly often categorized as a benefit or ‘result’ of polycentric governance. However, self-governance is the normative driver behind the design choices of a polycentric system; a pluricentric system without meaningful self-governance is not polycentric in the Ostrom sense. Any other benefits that result from polycentric governance are, in Vincent Ostrom’s view, secondary to ensuring self-governance. This means that, at times, governance units may legitimately choose to sacrifice goals such as efficiency or transparency in order to ensure self-governance.50 This starting point of this section is that TEG is increasingly polycentric. This means that TEG systems tend to display all attributes and institutional essentials of a polycentric system, even if some are not yet expressed fully or perfectly (see Table 9.2). In order for these attributes and institutional essentials to be maintained, the prerequisites for polycentric governance must also be present. Transnational governance’s basis in governance ‘beyond the state’51 echoes Vincent Ostrom’s emphasis on polycentricity’s role in creating a system of relationships not dominated by ‘the state’.52 Moreover, transnational governance appears to be intrinsically polycentric insofar as there is no one institution, subject matter or process through which we can define or earmark transnational governance systems; rather, TEG appears to be defined by what it is

47 V. Ostrom, C. Tiebot and R. Warren, ‘The Organization of Government in Metropolitan Areas: A Theoretical Inquiry’ (1961) 55 The American Political Science Review 831, 831. 48 As compared to federalism, the main distinction is the centrality of horizontal relations in polycentric theory, which is largely absent in federalism. Multi-level governance does leave room for these relationships but does not include a normative underpinning for modes of governance, such as polycentricity provides through self-governance. See, in detail, J. van Zeben, ‘Polycentric Features of the European Union’ in van Zeben and Bobic (n 17) 30 onwards. 49 See in detail V. Ostrom, The Meaning of American Federalism: Constituting a Self-Governing Society (ICS Press 1994). 50 There are some practical and conceptual challenges related to this goal. For example, it is often unworkable to take singular individuals as the unit of analysis, with the focus instead being on the groups formed by these individuals. See also van Zeben (n 48) 19. 51 Heyvaert (n 21) 1. 52 Ostrom (n 49) i.

Facing the legitimacy challenge: law as a disciplining force  155 Table 9.2

Attributes, institutional essentials, and prerequisites of polycentric systems

Attributes

(i) Multiple independent centres of decision making (ii) Continuous competition, cooperation and conflict resolution (iii) Overarching shared system of rules

Institutional Essentials

(i) Freedom and ability to enter and exit (ii) Enforcement of shared system of rules (iii) Peaceful contestation among different (interest) groups

Prerequisites

(i) Access to information (ii) Capacity to learn (iii) Access to justice

Note:

Taken from van Zeben (n 48) 27.

not – i.e., systems governed by national or international law in the traditional sense, involving only state actors.53 A multitude of actors and their competitive as well as collaborative relationships cover the first two attributes of polycentric systems – the presence of multiple independent centres of decision making, which relate to each other through continuous competition, cooperation and conflict resolution. However, it is questionable whether transnational environmental law has developed under an overarching system of rules (the third attribute of polycentric systems) that allows TEG to act as one system. Rather, we see a multiplicity of systems that interact with each other. This is not necessarily problematic; very few polycentric systems have global, or even regional, reach and are general purpose. The most notable example is the EU and even its mandate remains limited.54 More common are systems – many of which are in the area of TEG – that are issue-specific and have broad geographic reach, such as the system held together by the United Nations Framework Convention on Climate Change.55 For these TEG systems to qualify as polycentric, rather than as another form of pluricentric governance, they also need to meet the prerequisites for polycentric governance and reflect its institutional essentials. Given the diversity in TEG systems, this assessment would have to take place on a case-by-case basis and require detailed case studies. It is in these markers of polycentric systems that law plays the most obvious role; for example, rules concerning access to information and justice, which are prerequisites for peaceful contestation and the enforcement of shared rules, tend to be governed through law. The next sub-section will discuss this in more detail. 5.2

Role of Law in Polycentric Systems: Implications for Legitimacy

To a legal audience, the importance of law for all attributes, institutional essentials and prerequisites of polycentric governance is self-evident. However, in the Ostroms’ work, it is not: both Vincent and Elinor Ostrom consider the rule of law a substantive element of any shared

See also Heyvaert and Duvic-Paoli, Chapter 1 in this book. See van Zeben and Bobic (n 17). 55 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 53 54

156  Research handbook on transnational environmental law system of rules,56 and their definition of the rule of law refers to the prerogative of certain actors to determine, enforce, and alter legal relationships as well as the centrality of democracy.57 Vincent Ostrom does not define the role of law itself beyond this reference to the rule of law. Elinor Ostrom adopts a functional approach to the rule of law, stating that the ‘legitimation and parameters of action [in a society governed by the rule of law are based on] written and unwritten rules that need not be created through formal legal processes’.58 Moreover, rules are ‘shared understandings by participants about enforced prescriptions concerning what actions (or outcomes) are required, prohibited or permitted’.59 In brief,60 rules, constitutions, and all other types of norms – written and unwritten – that combine to make up a shared system of rules shared by the centres of decision making within a polycentric system are central to its continued existence.61 However, to the Ostroms these rules do not necessarily, or exclusively, take the form of law(s). This more inclusive approach accommodates the centrality of regulation in TEG, and the role of non-state actors in such systems. At the same time, it complicates our understanding of the role of law in TEG insofar as it confirms that any claims that law may have had to a monopoly in rulemaking in more traditional systems of governance no longer hold in TEG systems,62 which has implications for its ability to provide legitimacy to such systems. Law is not the only legitimizing force for transnational environmental governance. It may not even be the main legitimizing force. TEG also creates space for self-governance and bottom-up processes, which creates further legitimation. This is moreover one of the ways in which TEG distinguishes itself from international and national environmental governance, and brings it closer to polycentric governance. Any legal rules resulting from these processes, and their perceived legitimacy judged by both legal and sociological models of legitimacy, ideally reflect such bottom-up and/or self-governing processes and may therefore function as a litmus test for the legitimacy of such a system as a whole. A complicating factor in this respect is the continued relevance of existing international environmental law (and national law) within TEG. Shaffer and Bodansky have emphasized the role of unilateral action in this context and the fact that TEG does not always (need to) rely

E. Ostrom, Understanding Institutional Diversity (Princeton University Press 2005) 20; V. Ostrom, ‘Polycentricity’ (Part 1) (1972) reprinted in M.D. McGinnis (ed.), Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis (University of Michigan Press 1999) 55–6. 57 Ibid. 58 See A. Bobic, ‘The Shared System or Rules in a Polycentric European Union’ in van Zeben and Bobic (n 17), 141, 143. 59 E. Ostrom (n 56) 18. 60 For a more detailed discussion of the role of law and the shared system of rules in the context of the EU, see Bobic (n 58). 61 See also P. Aligica and V. Tarko, ‘Polycentricity: From Polanyi to Ostrom, and Beyond’ (2012) 25 Governance: An International Journal of Policy 237, at 246. 62 Whether law ever holds a true monopoly on norm or rule creation in any system of governance is debatable. For example, societies within nation states governed by national law are held together by more than legal norms; social norms and unwritten codes of conduct influence people’s behaviour at least as much as legal rules. See e.g., C. Sunstein, ‘Social Norms and Social Roles’ (1996) 96 Columbia Law Review 903; P.H. Huang and H. Wu, ‘More Order without More Law: A Theory of Social Norms and Organizational Cultures’ (1994) 10 Journal of Law, Economics and Organization 390; A. Etzioni, ‘Social Norms: Internalization, Persuasion, and History’ (2000) 34(1) Law & Society Review 157. 56

Facing the legitimacy challenge: law as a disciplining force  157 on consent from key actors, such as states in the same way that international environmental law does. An action – be it unilateral or multilateral – can both undermine and strengthen legitimacy depending on the effectiveness of such action in shaping new norms.63 A law which reflects a pre-existing consensus – regardless of its unilateral or multilateral adoption – is more likely to be effective than one which does not. This is a powerful reminder that law seldom acts as a legitimizing force in and of itself but rather tends to be based on its reflection of pre-existing norms, for example those that may have already been expressed in soft law,64 or pre-existing institutional legitimacy. For TEG, the challenge lies in finding and creating those shared norms and institutions that will espouse such legitimacy to constituencies beyond the sometimes relatively narrow ones related to one specific TEG regime.

6

CONCLUDING REMARKS

This chapter forms a starting point in considering legitimacy within TEG systems, and specifically the role law plays in relation to this legitimacy. As in most questions related to transnational governance, these discussions are complicated by the fact that TEG is defined by a high level of heterogeneity. This means that the role of law varies between TEG regimes, as do the goals of TEG regimes. The latter relate closely to legitimacy claims, as TEG institutions can adopt various strategies in conveying legitimacy to their audiences. The polycentric features of TEG complicate this picture further and indicate that the centrality of law may not be a permanent, or even desirable, feature of TEG or a cornerstone of its legitimacy. For the foreseeable future, law will continue to play important roles in transnational environmental governance. However, one of the challenges for TEG’s longevity will be whether it is able to generate alternatives to law as a legitimizing force.

Shaffer and Bodansky (n 26) 41. This is especially common in international environmental law. See for example, Rio Declaration on Environment and Development (1992), available at www​.unesco​.org/​education/​pdf/​RIO​_E​.PDF or World Commission on Environment and Development, Our Common Future (Oxford University Press 1987). 63 64

PART III CONSEQUENCES OF THE TRANSNATIONALIZATION OF ENVIRONMENTAL GOVERNANCE

10. The transnationalization of environmental constitutionalism Louis J. Kotzé1

1 INTRODUCTION While it is no panacea, constitutional environmental law (or environmental constitutionalism), holds out considerable potential to raise the level of juridical environmental protection.2 The majority of domestic constitutions all over the world now include some form of environmental protection measures ranging from, among others, ‘thick’ substantive environmental human rights, to ‘thin’ formal provisions setting out the architecture of the state’s environmental governance obligations and functions.3 The notion of a constitution and its associated modes of environmental protection are distinctly domestic, but they have not emerged in isolation and environmental constitutional provisions are increasingly similar and compatible. Moreover, the exclusivity of environmental constitutionalism’s domestic character is challenged by the emergence of regional and international ‘constitutional’ provisions, aptly evidenced by the global constitutionalism debate. Furthermore, environmental constitutionalism is increasingly invoked by global non-state actors in pursuit of socio-ecological justice where states fail in their duties to protect people and the environment.4 Consequent on these global developments, we are currently witnessing the transnationalization of environmental constitutionalism, otherwise called the emergence of global environmental constitutionalism. This chapter interrogates the transnationalization of environmental constitutionalism by: (i) exploring the notion of constitutional environmental protection; (ii) identifying the context and processes that give rise to the transnationalization of environmental constitutionalism; and (iii) reflecting on some of the manifestations of transnational environmental constitutionalism.

1 Research for this chapter was supported by the author’s European Commission Marie Skłodowska Curie project titled: ‘Global Ecological Custodianship: Innovative International Environmental Law for the Anthropocene’ (GLEC-LAW) under grant agreement No. 751782 and it was completed in October 2019. Parts of this chapter are based on L. Kotzé, Global Environmental Constitutionalism in the Anthropocene (Hart 2016). 2 D. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (University of British Columbia Press 2012). 3 L. Kotzé, ‘Arguing Global Environmental Constitutionalism’ (2012) 1 Transnational Environmental Law 199. 4 See Earth Law Center, ‘Rights of Nature Tribunals’, www​.earthlawcenter​.org/​rights​-of​-nature​ -tribunals/​; The Permanent Peoples’ Tribunal on Human Rights, Fracking and Climate Change, www​ .tribunalonfracking​.org/​.

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2

ENVIRONMENTAL CONSTITUTIONALISM

Over the course of several years, notably at least since the 1972 United Nations (UN) Conference on the Human Environment, environmental protection has become a key focus of the law, with environmental and incidental norms rapidly expanding in depth, reach, scope and number all over the world.5 But despite the adoption of hundreds of multilateral environmental agreements (MEAs), creating what is now the most normatively and institutionally dense area of international law,6 the establishment of comprehensive regional environmental law regimes across the globe, and the enactment of comprehensive domestic environmental laws in virtually all countries, environmental quality remains on a downward spiral.7 Environmental law, despite its best intentions, has not managed to prevent, significantly inhibit, or halt the growing global socio-ecological crisis; a crisis that is now vividly evidenced by the apocalyptic imagery of the Anthropocene.8 While environmental lawyers have occupied themselves with these concerns for several years now, there seems to be an increased urgency to exploring alternative, potentially more effective, paradigms for augmenting juridical environmental protection. One such alternative paradigm is constitutionalism, or more precisely, environmental protection through higher order constitutional law. What do the root term ‘constitution’ and the associated notions of constitutionalism and constitutional law mean? The term ‘constitution’ signifies a crucial shift in the relationship between government and people, namely, a rejection of status and hierarchy as a traditional means of ordering in favour of the creation of a government for the benefit of people established entirely by their majority consent:9 [C]onstitutions are often thought to be of higher value: legislation is for the here and now, but a constitution is [relatively] forever. This taps into the promise of the end of politics, a promise inherent (if not always explicit) in all great ideologies. Constitutionalism is no exception: a constitutional polity is a polity where things are done according to the rule of law, not the rule of man … one of the main attractions of constitutionalism is to suggest that there is a sphere beyond everyday politics, comprising values that cannot (or only with great difficulty) be affected or changed.10

The allure of constitutionalism manifests at several levels. For example, it is said that a constitution is the most powerful, universally binding and supreme law in a country and trumps all other laws. It provides a Grundnorm for society; entrenches the values that the majority of a society collectively holds dear; acts as a measure to uphold the rule of law; creates govern-

5 See, for example, B. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart 2006). 6 See, among others, P. Sands and J. Peel, Principles of International Environmental Law (4th edn, Cambridge University Press 2018). 7 R. Kim and K. Bosselmann, ‘International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements’ (2013) 2 Transnational Environmental Law 285. 8 See, for a critique of law in the Anthropocene, L. Kotzé (ed.) Environmental Law and Governance for the Anthropocene (Hart 2017). 9 M. Loughlin, ‘What Is Constitutionalisation?’ in P. Dobner and M. Loughlin (eds), The Twilight of Constitutionalism (Oxford University Press 2010) 47. 10 J. Klabbers, ‘Constitutionalism Lite’ (2004) 1(1) International Organizations Law Review 31, 47.

The transnationalization of environmental constitutionalism  161 ment accountability; safeguards judicial independence and affords the judiciary (especially constitutional courts) significant powers to adjudicate disputes within a constitutional framework. A constitution acts as a platform for the incorporation of human rights (arguably still one of the most enduring, albeit fragile and not altogether unproblematic, juridical innovations of the past century).11 To this end a constitution is in many ways the roadmap for a country, its people and its social–political–economic system.12 Constitutions also often inaugurate, and act as facilitators of, deep structural change in and of a polity by embracing new ideologies and by serving as the reimagined central juridical– ethical architecture of that polity. The Basic Law for the Federal Republic of Germany, which was adopted in 1949 following the atrocious era of National Socialism as its new and still current constitution, and South Africa’s transition from a racially oppressive pariah apartheid state to a democratic constitutional state which was essentially facilitated through the Constitution of the Republic of South Africa of 1996, are only two examples of constitutions’ deep transformative potential. More than any other single law, a constitution broadly reflects the zeitgeist; it is a significant, perhaps even sacred, type of law that commands unconditional reverence, respect and observance.13 The foregoing admittedly represents an ideal vision of constitutions and constitutional law’s virtues. There are of course also many drawbacks associated with constitutions and constitutional law including, for example, that a constitution is only as strong and effective as a government wants it to be – it often remains subject to immense political power and pressure. A constitution is not an absolute guarantee of good governance; the aspirational ideals pursued by constitutional norms (notably human rights) often remain only that – aspirational – while the impact of constitutions is often merely symbolic;14 and, most importantly perhaps, not all constitutions are ‘good’ laws striving to build ‘good’ societies and achieve ‘good’ outcomes, as the widely supported German National Socialist constitution and the former apartheid South African constitutions amply demonstrate. The idea of constitutionalism has also been criticized for its Western-oriented hegemony; for being too dependent on the contested notion of democracy; for the disproportional power that it may afford to courts to strengthen judicial review functions, which could potentially lead to a counter-majoritarian dilemma; for its failure to acknowledge the role of non-state actors as important contributors to working towards a common constitutional governance goal; and for often being a disingenuous attempt at window dressing.15 Nevertheless, given the premium that is placed on constitutions the world over, and the many positive advances that have been made in terms of creating constitutional states with everything that goes with that impulse, it would appear on balance

11 A. Grear and L. Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar 2015). 12 J. May and E. Daly, Global Environmental Constitutionalism (Cambridge University Press 2015) 38. 13 D. Lutz, ‘Thinking about Constitutionalism at the Start of the Twenty-First Century’ (2000) 30 Publius 115, 133. 14 Although the symbolic power of constitutions is not to be dismissed out of hand, especially to the extent that this power plays an important role in shaping a polity’s psyche: ‘the symbolic power of constitutions … lies in shaping and directing the debates through which political communities reinterpret their past, negotiate their present and plan their future’, G. Anderson, Constitutional Rights after Globalization (Hart 2005) 107–8. 15 Boyd (n 2) 5–6.

162  Research handbook on transnational environmental law that constitutionalism has been and continues to be a generally positive evolution in law and governance. The allure of constitutions for the environmental cause is unsurprising considering that environmental protection is seen to potentially benefit from all of constitutionalism’s virtues once it has become a constitutional objective (and thus an objective of the constitutional state), and once it has been included under the protective umbrella of a constitution. Constitutional environmental protection, or environmental constitutionalism as it has since become known, is seen to elevate environmental protection from a ‘mere’ statutory concern, to one that is entrenched in the supreme law of a country, thus potentially opening up all the benefits constitutional protection has to offer. To this end, environmental protection measures are most usually (and perhaps most famously) constitutionally entrenched in the form of substantive provisions such as human rights. An example is the right to a healthy environment which first appeared in the Yugoslavian Constitution in 1974,16 but now features, albeit differently formulated, in the majority of constitutions of the world. Other forms of substantive constitutional environmental provisions are those setting out duties for public and private actors in relation to environmental protection. The German Constitution’s provision on the environment is an example of the constitutional environmental duties a government may incur. Article 20a states: ‘mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order’. Article 19 of the Constitution of Laos of 1991 places an individual duty on non-state actors to ‘protect the environment and natural resources’, whereas Article 390(b) of the 2008 Constitution of Myanmar provides: ‘every citizen has the duty to assist the Union in carrying out … environmental protection’. Constitutional environmental protection measures can also be formal provisions such as those defining the competencies of environmental authorities in a country, thereby regulating the ordering, composition and architecture of environmental governance. This would cover the means and procedures to establish environmental governance powers and institutions, including the power of environmental authorities when they make decisions that affect the environment (for example, their power to evaluate and decide on methods for renewable energy generation or mining activities); to establish and steer lawmaking, conflict resolution and law enforcement processes of the state insofar as they relate to environmental matters; to determine the roles and responsibilities of the public and private actors involved in environmental governance; and to regulate the vertical interaction between the state and its subjects and the horizontal interaction between subjects in respect of environmental matters. An example of such formal environmental constitutional provisions is found in the 1997 Constitution of Thailand. Chapter XIV spells out specific provisions which empower local government to ensure environmental protection: ‘for the purpose of promoting and maintaining the quality of the environment, a local government organization has powers and duties as provided by the law’, and it is responsible for the ‘management, preservation, and exploitation of the natural resources and the environment in the area of the locality’.17 16 J. Gellers, ‘Explaining the Emergence of Constitutional Environmental Rights: A Global Quantitative Analysis’ (2015) 6 Journal of Human Rights and the Environment 75, 76. See also J. Knox and R. Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press 2018). 17 Section 290.

The transnationalization of environmental constitutionalism  163 Mindful of views cautioning against unconditional endorsement,18 and despite the fact that the shortcomings and failures of constitutionalism noted earlier would naturally also be apparent in the environmental domain, environmental constitutionalism continues to expand both normatively in constitutional orders the world over and as a scholarly endeavour.19 There are various perceived benefits that environmental constitutionalism holds for environmental protection. First, constitutional environmental protection is the highest legal level for a society to express the importance of and to give effect to environmental protection. Because of environmental constitutionalism’s normative superiority, the regulated community is more likely to respond to environmental constitutional provisions than to any other normative command. Secondly, a constitution is the only law that deeply entrenches, at the highest legal level, a collective ethical recognition of the need for environmental protection, and does so in the same way that the importance of, for example, equality or human dignity is recognized in a polity. Environmental constitutionalism therefore puts environmental care on the same footing as ‘traditional’ constitutional values and goals such as human dignity or equality, by recognizing the environment as either the basis of the (ecological) constitutional state,20 or as being inextricably interlinked with more ‘traditional’ constitutional values and goals which depend for their own realization on sustaining ecological integrity. Thirdly, environmental constitutionalism creates, amends, determines and directs the secondary environmental law regime, including its statutes, principles, common and customary laws, as well as this regime’s relationship with international, regional and foreign environmental law. Environmental constitutionalism can thereby provide an impetus for stronger environmental laws, based on and legitimized through a constitution, supported by a constitutionally established institutional machinery and backed up by constitutionally recognized minimum standards, to which environmental law and governance must aspire.21 Fourthly, because constitutions often embody the soul and spirit of a nation, environmental constitutionalism can play a cultural and educational role that is removed from, yet complementary to, its more traditional regulatory function, thus working to instill broader socially entrenched societal environmental care: ‘constitutional provisions promote a model character for the citizenry to follow, and they influence and guide public discourse and behavior. On a practical level, the public tends to be more familiar with constitutional provisions than specific statutory laws’.22 Finally, constitutions, arguably more than any other type of law, could address the temporal misalignment between law and environmental challenges. Richardson says: The lack of symmetry between human and natural timescales, caused by factors such as economic and technological changes, is widening as human cultural evolution dramatically accelerates our tra-

18 For example, D. Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press 2010) 229–54. 19 May and Daly (n 12) 2. 20 R. Steinberg, Der ökologische Verfassungsstaat (Suhrkamp 1998). 21 For example, the South African environmental right (section 24 of the Constitution of the Republic of South Africa, 1996), is set as the minimum aspirational standard in virtually all of South Africa’s environmental laws. See, among others, the provisions of the country’s environmental framework law, the National Environmental Management Act 107 of 1998. 22 E. Brandl and H. Bungert, ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’ (1992) 16 Harvard Environmental Law Review 1, 4.

164  Research handbook on transnational environmental law jectory away from nature’s temporal rhythms. Natural resources are depleted more quickly than they can regenerate, past ecological damage remains unrepaired and future environmental changes are not adequately guarded against – the result of which is that natural systems lose their capacity to change and evolve according to their normal trajectory.23

In addressing this misalignment, constitutions work prospectively to the extent that they are ‘intergenerational compacts’ or ‘agreements that one generation makes both to bind and benefit future generations’.24 Based on their special historical contexts and their temporally forward-looking view, constitutions act now to make possible a certain kind of world and society for the present and for the future. Ackerman refers to this temporal characteristic of constitutions as a ‘conversation between generations’25 which opens up, in the words of Kysar, the possibility for any polity to ‘seek to better hear the diachronic expressions of future generations’.26

3

THE CONTEXT OF TRANSNATIONALIZATION OF ENVIRONMENTAL CONSTITUTIONALISM

Because the notion of a constitution historically has been a distinctly domestic phenomenon, revolving around the nation state and with a legitimizing national polity as its central referent, the environmental constitutionalism debate initially emerged from a narrow domestic framework that was squarely focused on the nation state, its limiting geographical borders and its inward-looking laws. The initial domestic orientation of environmental constitutionalism has since changed, and keeps changing, on the back of at least four inter-linked considerations: globalization; the rise of environmental protection as a global governance concern; the rise of transnational (environmental) law; and the emergence of the phenomenon of global constitutionalism. This part briefly explores each of these. 3.1 Globalization Globalization signifies the intensification of global interdependence and, as a result, a concomitant increase in exposure and vulnerability to regulatory challenges experienced by societies and governments all over the world.27 The recent COVID-19 pandemic that, at the time of writing, was still causing major global (and often deeply interconnected) socio-economic disruptions, is a case in point. Globalization essentially challenges age-old truths about the state, law and governance, visions of global order and stability, and ways to co-exist sustainably and peacefully.

23 B. Richardson, ‘Doing Time: The Temporalities of Environmental Law’ in L. Kotzé (ed.), Environmental Law and Governance for the Anthropocene (Hart 2017) 56. 24 May and Daly (n 12) 47. 25 B. Ackerman, ‘The Living Constitution’ (2007) 7 Harvard Law Review 1737, 1793. 26 D. Kysar, ‘Global Environmental Constitutionalism: Getting There from Here’ (2012) 1 Transnational Environmental Law 83, 90. 27 See, for a comprehensive discussion, R. Lee and E. Stokes, ‘Environmental Governance: Reconnecting the Global and Local’ (2009) 36 Journal of Law and Society 1.

The transnationalization of environmental constitutionalism  165 More specifically, it points to the ‘apparent hollowing out, or retreat, of the nation state’.28 Globalization further calls into question the continued prevalence of geographically defined territorial dictates as a crucial consideration in the design and focus of law and governance; it ‘appears indeed characterized by a shift from territorial borders to functional boundaries’.29 From a normative regulatory point of view, globalization increases the number, reach and intensity of global institutions, including the legal norms that regulate them, while expanded legal and institutional arrangements, such as those apparent in trade law, conversely support and further extend the processes of globalization.30 Globalization thus is a reciprocal and mutually re-enforcing process of regulatory growth that feeds upon itself, while it drives the creation of global norms to address regulatory challenges within and beyond state borders.31 In sum, globalization increasingly requires of law to broaden its geography or dominium, while it drives juridical innovation and the development of alternative paradigms to address ‘the failure of “real law” [and the state] to govern complex global problems’.32 3.2

Global Environmental Protection in the Anthropocene

Consequent on the many pervasive processes of globalization, the environment, perhaps more than any other regulatory issue, has managed to transform itself from a distinctly localized concern into a truly global phenomenon which transcends state borders, jurisdictions, timescales and generations. While societies, their laws and governance institutions used to restrict their attention and regulatory focus to their immediate environments (such as governing pollution of a river basin), this narrow scope has been significantly broadened. The globalization of juridical environmental protection, as it were, was set in motion by the 1972 UN Conference on the Human Environment; a pivotal moment in global environmental politics that heralded the birth of the burgeoning global environmental law regime we have today. This regime consists of international, regional, national and subnational environmental laws and it recognizes that environmental protection is not a distinct domestic concern that can be isolated from external socio-ecological processes and impacts, legal influences, and global politics. More recently, the need for a global and more comprehensive approach to environmental protection has been further underscored with the realization that we may have entered the Anthropocene; a possible new human-dominated geological epoch. Compelling evidence suggests that while ‘planetary scale critical transitions have occurred previously in the biosphere, albeit rarely, … humans are now forcing another such transition, with the potential to transform Earth rapidly and irreversibly into a state unknown in human experience’.33

Ibid, 3. A. Paulus, ‘Commentary to Andreas Fischer-Lescano and Gunther Teubner: The Legitimacy of International Law and the Role of the State’ (2004) 25 Michigan Journal of International Law 1047, 1048. 30 J. Dunoff and J. Trachtman, ‘A Functional Approach to International Constitutionalization’ in J. Dunoff and J. Trachtman (eds), Ruling the World: Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009) 5–6. 31 C. Fombad, ‘Internationalization of Constitutional Law and Constitutionalism in Africa’ (2012) 6 American Journal of Comparative Law 439, 440. 32 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) 1 Transnational Environmental Law 1, 2. 33 A. Barnosky and others, ‘Approaching a State Shift in Earth’s Biosphere’ (2012) 486 Nature 52. 28 29

166  Research handbook on transnational environmental law As a discursive category, the Anthropocene now occupies a central position in the human– environment relations discourse. Alongside emerging epistemic frameworks and research programmes such as Earth system governance, the Anthropocene highlights that the Earth’s is an integrated system that cannot continue to be confined to or delineated by state boundaries and state-based laws that are focused on specific environmental media (such as water, air and soil) and specific concerns (such as biodiversity, the ozone layer and the oceans) in a fragmented way. The Anthropocene’s Earth system perspective instead demands that law recognize and more fully respond to the Earth’s entire system. The transnationalization of environmental law, including of its constitutional norms, institutions and processes, is a central tenet of the global legal regime that must respond to the Anthropocene’s erratic, unstable, unpredictable, complex and deeply intertwined Earth system. Recent proposals to develop a new juridical paradigm called Earth system law, a paradigm that is better aligned with and responsive to the phenomenon of Earth system governance, suggest that efforts to align law’s geography with a systems approach are already underway.34 3.3

Global Constitutionalism

Constitutional law has not escaped the impacts of globalization, with many of the hitherto closed epistemic spaces, especially in law and constitutionalism discourse, now gradually opening up to invite alternative views that search for constitutionalism in the global domain. Discussions about the globalization of constitutional law neatly reside under the banner of global constitutionalism, a term that fully embraces all aspects of transnational law, but with a pertinent focus on the constitutional aspects of transnational law. Peters offers a concise description of global constitutionalism that is also useful for present purposes: [T]he claim of probably all types of global constitutionalism is that the respective principles, institutions, and mechanisms [of domestic constitutionalism] can and should be used as parameters to inspire strategies for the improvement of the legitimacy of an international legal order and institutions without asking for a world state.35

To this end, global constitutionalism draws on the benefits of constitutionalism elaborated above, while also seeking to address the many regulatory challenges that the global law and governance order must address resulting, among other causes, from unilateral and increasingly self-protective measures that countries invoke under the banner of state sovereignty (an apt example is Donald Trump’s revival of the ‘America first’ foreign policy stance); the rise of powerful and influential global non-state actors such as transnational corporations which often operate outside juridical boundaries of accountability; and the rise of complex challenges to global governance such as terrorism, migration and environmental degradation.36

L. Kotzé and R. Kim, ‘The Juridical Dimensions of Earth System Governance: Initiating a Debate on Earth System Law’ (2019) 1 Earth System Governance 1. 35 A. Peters, ‘Global Constitutionalism’ in M. Gibbons (ed.), The Encyclopedia of Political Thought (John Wiley and Sons 2015) 1484. 36 R. St John Macdonald and D. Johnston, ‘Introduction’ in R. St John Macdonald and D. Johnston (eds), Towards World Constitutionalism: Issues in the Legal Ordering of the World Community (Martinus Nijhoff 2005) ix–xviii. 34

The transnationalization of environmental constitutionalism  167 The global constitutionalism debate essentially commenced with academic critique and reconstructions of the founding treaties of international organizations, including the UN and its Charter, the European Union (EU) and the World Trade Organization (WTO), with the debate signifying ‘an evolution from an international order based on some organizing principles, such as state sovereignty and consensualism, to an international legal order which acknowledges and has creatively appropriated principles and values of constitutionalism’.37 In short, the legitimacy of international law should not solely depend on state consent, but also on considerations such as limited and efficient government, the separation of powers, the rule of law, democracy and the protection of human rights.38 This would imply, among other things, that while states are the subjects of a global constitutional order, they are at the same time (or at least should be) entirely subjected to binding and constraining international ‘constitutional’ rules that are supported by the majority of states and people within states. Reflecting some of the core characteristics of transnational law, global constitutionalism manifests in five main forms. First, efforts to seek constitutionalism in the corridors of the global law and governance maze appear most clearly and intuitively in the arguments of those suggesting that international law and its governance institutions have become, or are becoming, constitutionalized.39 Some general claims assert the existence of: a global authority organized around the UN and its organs, with the 1945 UN Charter as its global constitution; a discernable international community acting as a constituent power; and a normative hierarchy which is similar to a domestic bill of rights that contains elevated norms such as human rights and jus cogens obligations, indicating universal values that supersede ‘inferior’ norms.40 A second approach is one that traces constitutionalism in increasingly autonomous clustered regimes of international law that are organized around a specific issue area.41 The WTO and the many trade-related agreements that have been adopted under its auspices offer a prominent example of a specific regime that is clustered to the extent that it consists of an international organization, a set of enforceable norms, administrative institutions and enforcement machinery.42 Another aspect of this approach looks at the possible emergence of constitutionalism in treaty regimes that focus on specific issue areas such as global biodiversity protection, including the collection of normative and institutional arrangements that are developed to govern a specific issue area. A third angle is that of global civil society constitutionalism,43 which specifically focuses on the emergence of civil ‘constitutions’, norms, institutions and processes in a global society which includes non-state entities such as non-governmental organizations (NGOs), transna-

Peters (n 35) 1485. E. de Wet, ‘The International Constitutional Order’ (2006) 55 International and Comparative Law Quarterly 51, 52–3. 39 See, for example, B. Fassbender, ‘The United Nations Charter as the Constitution of the International Community’ (1998) 36 Columbia Journal of International Law 529. 40 N. Walker, ‘Taking Constitutionalism beyond the State’ (2008) 56 Political Studies 519, 535–6. 41 See for a general discussion, A. Stone Sweet ‘Constitutionalism, Legal Pluralism, and International Regimes’ (2009) 16 Indiana Journal of Global Legal Studies 621. 42 See World Trade Organization, ‘WTO Legal Texts’, www​.wto​.org/​english/​docs​_e/​legal​_e/​legal​_e​ .htm. 43 See, for a general overview, G. Teubner, ‘Societal Constitutionalism: Alternatives to State-Centred Constitutional Theory?’ in C. Joerges, I.-J. Sand and G. Teubner (eds) Transnational Governance and Constitutionalism (Hart 2004) 3–28. 37 38

168  Research handbook on transnational environmental law tional corporations and epistemic communities. These non-state entities are seen to contribute to law beyond the state where ‘in line with the logic of functional differentiation, [law has] established itself globally as a unitary social system’.44 A fourth approach is that of transnational comparative constitutionalism which has a strong cross-jurisdictional focus on widely dispersed domestic norms around the globe that are becoming increasingly similar, receptive or responsive to one another.45 The final approach seeks global constitutionalism in regional governance orders such as the EU, which is considered by global constitutionalists as neither a super-state, nor a classic international organization, but rather what Pernice calls a regional constitutional federation (Verfassungsverbund).46 Advocates of this approach argue that some form of softer multilevel constitutionalism exists in regional governance regimes.47 Whatever form it takes, proponents of global constitutionalism argue that it has the ability to bring about a ‘better’ and more structured global law and governance order since it aims ‘to guarantee a political [and socio-juridical] process that brings about sustainable and fair compromises between diverging interests’.48 Global constitutionalism could do so by restricting arbitrary rule of global powers through a global or regional-type constitution containing a set of higher order norms, relatedly ‘softening’ the sovereignty of states and restricting their unilateral actions through the limits imposed by human rights or jus cogens norms. It could foster enhanced participative governance and legitimization of global governance by non-state actors through the process of global civil society activism, and demand transparency and accountability from those who govern in the global domain. Where these are absent, global constitutionalism may provide normative and other institutional arrangements related to specific issue areas such as global environmental protection; and offer the possibility for transnational, cross-jurisdictional transplantation to occur.

4

MANIFESTATIONS OF TRANSNATIONAL ENVIRONMENTAL CONSTITUTIONALISM

Transnational environmental constitutionalism arises from the interrelated context of globalization, the globalization of environmental protection, the emergence of transnational law, and efforts to constitutionalize the global legal order. The remainder of this chapter draws on the five manifestations of global constitutionalism that were outlined immediately above, and then situates these in the environmental context.

G. Teubner and A. Fischer-Lescano ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2004) 25 Michigan Journal of International Law 999, 1007. 45 T. Cottier and M. Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck Yearbook of United Nations Law 261, 269–75. 46 I. Pernice, ‘Multilevel Constitutionalism in the European Union’, Walter Hallenstein Institut Paper 5/02, available at http://​whi​-berlin​.de/​documents/​whi​-paper0502​.pdf. 47 See, among others, N. Walker, ‘Reframing EU Constitutionalism’ in J. Dunoff and J. Trachtman (eds) Ruling the World: Constitutionalism, International Law, and Global Governance (Cambridge University Press 2009) 149. 48 C. Volk, ‘Why Global Constitutionalism does not Live up to its Promises’ (2012) 4 Goettingen Journal of International Law 551, 560. 44

The transnationalization of environmental constitutionalism  169 4.1

A Global Environmental Constitution, Rights and Jus Cogens Norms

The jury is still out on the question whether a global constitution exists. Although the UN Charter is often touted as the most likely candidate,49 it has arguably become more generally accepted that there is an ‘International Bill of Rights’ which consists of the Universal Declaration of Human Rights of 1948 and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966.50 It is equally unclear whether a global environmental constitution exists, or even should exist.51 The general view is that such a global environmental constitution does not yet exist in the fullest sense of the word; at best it could be said that the current body of MEAs makes up a ‘thin’ or formal global environmental constitution: Rather than elaborate a set of static commitments by states, they are dynamic arrangements that establish ongoing systems of governance to address particular issues … Although they differ in their particulars, each international environmental agreement performs basic constitutive functions by establishing institutions, specifying the rules that guide and constrain these institutions, and entrenching these rules through amendment procedures.52

While it formally constitutes and regulates global environmental governance, the current collection of MEAs does very little to provide for higher-order, substantive or ‘thick’ norms such as those expressed through human rights in domestic constitutions. There is as of yet no MEA or global human rights instrument that explicitly provides for a global right to a healthy environment, as recommended by the former UN Special Rapporteur on Human Rights and the Environment, John Knox, in his final report.53 As of yet, there are no non-derogable peremptory jus cogens norms situated at the top of international law’s normative hierarchy that explicitly relate to the environment in that they prohibit, for instance, severe and widespread pollution, or norms that prohibit states from changing the climate through greenhouse gas emissions.54 It is accordingly at present impossible to deduce that environmental concerns are represented in any meaningful way in the broader ‘international value system [which] concerns norms with a strong ethical underpinning, [and] which … have acquired a special hierarchical standing through State practice’.55 It is also clear that within the domain of international environmental law, ‘states still prefer to retain significant flexibility rather than commit

49 M. Doyle, ‘Dialectics of a Global Constitution: The Struggle over the UN Charter’ (2011) 18 European Journal of International Relations 601. 50 See, for a critique, C. Roberts, The Contentious History of the International Bill of Human Rights (Cambridge University Press 2015). 51 L. Kotzé, ‘A Global Environmental Constitution for the Anthropocene?’ (2018) Transnational Environmental Law 1. 52 D. Bodansky, ‘Is there an International Environmental Constitution?’ (2009) 16 Indiana Journal of Global Legal Studies 565, 578 and 574. 53 UN General Assembly, ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’ A/ HRC/37/59 (24 January 2018) para. 14. 54 L. Kotzé, ‘Constitutional Conversations in the Anthropocene: In Search of Environmental Jus Cogens Norms’ (2015) 46 Netherlands Yearbook of International Law 241. 55 De Wet (n 38).

170  Research handbook on transnational environmental law to constitutional constraints. They remain far from developing the sense of community that underlies constitutional governance [at the global level].’56 Having said this, some states have recently formally embarked on a process to explore the possibility of creating a new global environmental instrument that might become a candidate for a future global environmental constitution. Proponents of the Global Pact for the Environment of 2017 ambitiously believe it could represent the ‘third generation of [environmental] rights’ as part of the International Bill of Rights.57 Deliberations on the need for, and the purpose, scope and content of the Pact commenced in May 2018 consequent on a formal United Nations General Assembly (UNGA) resolution.58 The resolution instructed the UN Secretary-General to draft a ‘technical and evidence-based’ report on ‘possible gaps in international environmental law and environment-related instruments’.59 For this purpose, the resolution established an ad hoc open-ended working group to identify and evaluate gaps in international environmental law, and to discuss the feasibility of adopting a globally binding international environmental law instrument that entrenches all the major principles of international environmental law in one document. On 22 May 2019, the ad hoc working group published its recommendations to the UNGA.60 The working group did not recommend the adoption of a globally binding instrument. ‘With a view to strengthening the implementation of international environmental law, and international environmental governance’,61 it instead unambitiously recommended the formulation of a non-binding political statement in 2022 that must coincide with the 50th anniversary of the 1972 Stockholm Conference on the Human Environment. The Global Pact is therefore a stillborn initiative and will likely not become a global environmental constitution. And even it were adopted, the Pact in its current form brings nothing new to the table and it is normatively much weaker than, for example, the World Charter for Nature of 1982; it certainly does not constitute the foundation of Lex Anthropocenae.62 4.2

Post-state Constitutional Law and Governance Regimes

Some commentators argue that it is possible to observe the emergence of constitutional law in an expansive sense in the many increasingly autonomous post-state institutional legal regimes that are clustered around a broadly defined focus area. These post-state regulatory regimes are usually made up of a cluster of treaties and their concomitant institutions, and they revolve around an international organization, its norms and institutional apparatus. Bodansky (n 52). IUCN, ‘Global Pact for the Environment – June 2017’ (IUCN, 23–24 June 2017), www​.iucn​.org/​ commissions/​world​-commission​-environmental​-law/​events/​23​-24​-june​-2017​-global​-pact​-environment​ -introduced​-world. 58 UN General Assembly, ‘Towards a Global Pact for the Environment’ A/RES/72/277 (adopted 10 May 2018). 59 Ibid, para. 1. 60 ‘Recommendations, as agreed by the working group (22 May 2019)’, available online at https://​ globalpactenvironment​.org/​uploads/​GPRecomFINAL​.pdf. 61 Ibid. 62 L. Kotzé and D. French, ‘A Critique of the Global Pact for the Environment: A Stillborn Initiative or the Foundation for Lex Anthropocenae?’ (2018) 18 International Environmental Agreements: Politics, Law and Economics 811; D. French and L. Kotzé, ‘Towards a Global Pact for the Environment: International Environmental Law’s Factual, Technical and (Unmentionable) Normative Gaps’ (2019) Review of Comparative and International Environmental Law 1. 56 57

The transnationalization of environmental constitutionalism  171 In the environmental domain, the UN Environment Programme (UN Environment) would be the most likely institutional candidate to approximate a form of post-state regime for constitutional law and governance. Yet it is clear from its constituting document that UN Environment was never intended to become a strong centralized global environmental governance authority with significant power over UN Member States.63 It remains ‘merely’ a UN programme and is not a full-fledged international organization with international legal personality, as is the case with the WTO.64 UN Environment is therefore a much weaker institution; it neither has the capacity to adjudicate international environmental disputes, nor to enforce legal obligations in any meaningful way. Its weak institutional status and global governance role are further evidenced by concerns about its ‘post-Rio political neglect’, ‘erosion in [its] status and authority’ and by renewed calls for intergovernmental efforts to ‘revitalize’ the institution.65 Yet, in the face of (and arguably in response to) these concerns, the global constitutionalism debate may amplify in future as far as UN Environment is concerned. For example, ongoing debates about the desirability and prospects of creating a world environment organization reflect on the continued need to engage with the global environmental constitutionalism debate in this respect.66 In sum, despite numerous concerns, UN Environment continues to play an important role in initiating and supporting global environmental governance.67 It is arguably most effective and successful in facilitating international environmental lawmaking, as various MEAs and treaty regimes were developed under its coordinating leadership. It is within the collection of this burgeoning body of agreements that one finds clustered normative and institutional treaty regimes that point to another ‘narrower’ form of regime-based transnational environmental constitutionalism. Taking the global biodiversity regime as an example, several MEAs perform basic formal constitutive functions by establishing treaty governance institutions, rules that are meant to constrain Member States, procedures for compliance and enforcement, and procedures for conflict resolution.68 These include the Ramsar Convention on Wetlands, 1971;69 the Bonn Convention on Migratory Species, 1979;70 and the Convention on Biological Diversity, 1992.71 In addition to regular Conferences of the Parties, these instruments and their protocols constitute and regulate various treaty institutions such as Standing Committees, 63 UN General Assembly, ‘Institutional and Financial Arrangements for International Environmental Cooperation’ A/RES/27/2997 (adopted on 15 December 1972). 64 See on the juridical and political details in relation to international organizations generally, including aspects related to their international legal personality, J. Klabbers and Å. Wallendahl (eds), Research Handbook on the Law of International Organizations (Edward Elgar 2011). 65 B. Desai, ‘UNEP: A Global Environmental Authority?’ (2006) 36 Environmental Policy and Law 137, 137 and 142. 66 See, for example, F. Biermann and S. Bauer (eds), A World Environment Organization: Solution or Threat for Effective International Environmental Governance? (Ashgate 2005). 67 M. Drumbl, ‘Actors and Law-Making in International Environmental Law’ in M. Fitzmaurice, D. Ong and P. Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar 2010) 7–8. 68 See for a detailed discussion of this regime, D. Ong, ‘International Environmental Law Governing Threats to Biological Diversity’ in Fitzmaurice, Ong and Merkouris (n 67). 69 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 11 ILM 963. 70 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 19 ILM 15. 71 Convention on Biological Diversity (adopted 22 May 1992, entered into force 29 December 1993) 31 ILM 818.

172  Research handbook on transnational environmental law Advisory Committees, Scientific Councils, Working Groups and Convention Secretariats, which in turn are responsible for implementing treaty provisions, monitoring compliance, creating new and amending existing treaty provisions, among many other governance functions. On this basis, a degree of formal global environmental constitutionalism may be discerned in these treaty regimes, notably to the extent that their provisions comprehensively constitute the regimes, provide their governance institutions and associated governance procedures, and other formally constitutive provisions that make them work. It might also be possible to observe substantive global constitutional aspects in these treaty regimes in the sense that they constrain behaviour, limit free will and strive to ensure accountability. 4.3

Global Civil Society Environmental Constitutionalism

Global civil society constitutionalism refers to the emergence of pockets of non-state ‘law’ or ‘civil constitutions’ as a result of informal normative processes and (often self-regulatory) instruments and structures emanating from private, non-state global governance actors such as NGOs, global epistemic networks and private tribunals. These civil society actors are particularly active in the global environmental protection and advocacy domain, and they have the ability to make soft non-state variants of regulatory norms that can be highly effective. Perhaps more importantly, by focusing on constitutional aspects such as the protection of environmental human rights, these actors step in where states fail to protect. They play a critical part in raising awareness, shaping public opinion, indirectly steering law and policy making in a bottom-up way and, more generally, representing the concerns of marginalized and particularly vulnerable societies that are disadvantaged by environmental change. An example of a civil society-driven global environmental constitution is the Earth Charter, which is the result of a ‘decade-long, worldwide, cross-cultural dialogue on common goals and shared values’.72 Its supporters believe that the Earth Charter probably ‘comes closest to capturing the full moral, spiritual and scientific vision of the new covenantal model’;73 a model they believe has significant potential to advocate a new global environmental ethic. Suggesting that the Charter is ‘a starting point for a dialogue on a future global constitution’,74 commentators further recognize its potential substantive global constitutional qualities. Its strengths include that it fully embraces the type of ecological language, obligations and ethics that the Anthropocene demands. It could counter the anthropocentric ravaging and address the deepening climate crisis occasioned by neo-liberal laws, institutions and culture. To this end, the Charter plays an important role in the broader civil society environmental governance paradigm that could potentially guide the gradual development and even transformation of international environmental law, politics and global environmental governance in a bottom-up, polycentric way along ecocentric lines. Civil society actors also drive environmental human rights protection initiatives and associated adjudication endeavours, such as the Permanent Peoples’ Tribunal, which heard com-

The Earth Charter, available online at http://​earthcharter​.org/​discover/​download​-the​-charter/​. R. Engel, ‘A Covenant Model for Global Ethics’ (2004) 8 Worldviews 29, 36. 74 K. Bosselmann, ‘Outlook: The Earth Charter – A Model Constitution for the World?’ in K. Bosselmann and R. Engel (eds), The Earth Charter: A Framework for Global Governance (KIT Publishers 2010) 239. 72 73

The transnationalization of environmental constitutionalism  173 plaints related to human rights, fracking and climate change in May 2018.75 Another example is the International Rights of Nature Tribunal, a non-state tribunal that has been created to serve as ‘a vehicle for reframing and adjudicating prominent environmental and social justice cases within the context of a Rights of Nature based earth jurisprudence’.76 All these entities clearly operate outside the formal state authority domain at a global level, where they focus on the promotion of constitutional environment-related issues, such as human rights protection, in the many instances where states fail to provide adequate protection, or deliver a forum to allow those affected by environmental harm to voice their concerns. They will arguably continue to play an important role in raising awareness and changing perceptions, shaping public opinion with the view to changing politics in a bottom-up way, and offering a sense of justice by providing, at least, a forum to be heard and to voice claims of injustice. 4.4

Regional Environmental Constitutionalism

Regional global environmental constitutionalism seeks elements of constitutionalism in regional governance orders, especially with respect to their normative and institutional environmental aspects.77 Regional environmental governance is now a fully recognized manifestation of global environmental governance. It has emerged as a response by regionally grouped states to geographically and politically shared environmental problems and as a means to exert greater influence on global environmental diplomacy, lawmaking and governance. Regional environmental governance is especially desirable under circumstances when the global seems to fail (or, at least, is not an appropriate level to deal with collective action problems) and states simply cannot solve their own environmental problems through unilateral action or where scaling up has the potential to deliver more effective outcomes, then the ‘goldilocks principle’ kicks in; regionalism becomes attractive as it is neither ‘too hot’ nor ‘too cold’ but ‘just right’.78

Other benefits include its potential to provide for commonly shared responses to address a particular environmental challenge; greater familiarity with key actors; the ability to tailor mitigation and adaptation actions to a smaller constituency; and the ability to focus on shared ecologically defined regions such as river basins, rather than political–administrative entities.79 Elements of regional environmental constitutionalism are best observed in the context of the EU, which has become an influential environmental governance actor internally with respect

The Permanent Peoples’ Tribunal on Human Rights, Fracking and Climate Change, ‘This Session’, www​.tribunalonfracking​.org/​what​-is​-this​-session​-about/​. 76 Global Alliance for the Rights of Nature (GARN), ‘What Is an International Rights of Nature Tribunal?’, http://​therightsofnature​.org/​rights​-of​-nature​-tribunal/​. 77 See, for a detailed discussion, L. Kotzé, ‘Conceptualising Global Environmental Constitutionalism in a Regional Context: Perspectives from Asia and Europe’ in T. Suami, A. Peters, D. Vanoverbeke and M. Kumm (eds), Global Constitutionalism from European and East Asian Perspectives (Cambridge University Press 2018) 422–48. 78 L. Elliot and S. Breslin, ‘Researching Comparative Regional Environmental Governance: Causes, Cases and Consequences’ in L. Elliot and S. Breslin (eds), Comparative Environmental Regionalism (Routledge 2011) 4. 79 J. Balsiger and S. VanDeveer, ‘Navigating Regional Environmental Governance’ (2012) 12 Global Environmental Politics 1, 3. 75

174  Research handbook on transnational environmental law to its Member States and externally vis-à-vis the rest of the world. Several considerations collectively further the idea of the EU becoming, or already being, a relatively strong regional constitutional federation (Verfassungsverbund) with a scope that includes environmental protection. First, EU Member States increasingly act as a unified (if at times fragile) collective on behalf of their Member States and in their environment-related interests.80 The EU is a party to the UN Framework Convention on Climate Change,81 its Kyoto Protocol82 and the Paris Agreement of 2015,83 as are all EU Member States in their own right, with the European Commission representing and negotiating on behalf of its Member States during Conferences of the Parties.84 In terms of substantive higher-order environmental norms, none of the EU’s constituting instruments provide for an explicit environmental right or any other explicit form of higher order environmental norm. The Charter of Fundamental Rights of the European Union of 2000 does, however, include under its section on solidarity rights an environmental provision which states: ‘a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’.85 Although relatively weak and devoid of the classic rights-jargon, this provision, which along with the other Charter provisions has been binding on all Member States since 2009,86 ‘may become a benchmark for judicial review by the EU Court of Justice of legislative and executive EU acts as well as national measures implementing EU environmental obligations’.87 The Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 does not provide for an explicit environmental right either,88 with environmental entitlements instead being raised and protected through the assertion of other incidental rights.89 The Convention does not apply universally; it remains a geographically delimited (mostly European) transnational regime, but one which could nevertheless be ‘persuasively characterized as constitutional and con-

B. Simma and A. Paulus, ‘The “International Community” Facing the Challenge of Globalization’ (1998) 9 European Journal of International Law 266, 268. 81 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 24 March 1994) 31 ILM 849. 82 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 37 ILM 22. 83 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 84 European Commission, Climate Action, http://​ec​.europa​.eu/​clima/​policies/​international/​ negotiations/​un/​index​_en​.htm. 85 The Charter of Fundamental Rights of the European Union, Art. 37. 86 The Charter has been incorporated as a binding legal text in the Lisbon Treaty of 2007 and as a result it has become binding on all EU Member States since 2009. 87 J. Verschuuren, ‘Contribution of the Case Law of the European Court of Human Rights to Sustainable Development in Europe’ in W. Scholtz and J. Verschuuren (eds), Regional Environmental Law: Transnational Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363–84. 88 Available online at www​.coe​.int/​t/​dghl/​standardsetting/​hrpolicy/​Publications/​Manual​_Env​_2012​ _nocover​_Eng​.pdf. 89 O. Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time Coming?’ (2008) 21 Georgetown International Environmental Law Review 73. 80

The transnationalization of environmental constitutionalism  175 sistent with the ideal of constitutionalism’.90 The European Court of Human Rights (ECtHR) is also relatively active in protecting environmental interests through provisions such as the Convention’s right to privacy (Article 8), as attested by its rich jurisprudence on human rights in the environmental context.91 The Court of Justice of the EU (CJEU), too, is an active participant in developing binding environmental law jurisprudence and providing judicial oversight of compliance with the EU’s environmental measures.92 The extent to which the ECtHR and the CJEU have been able to contribute to the development of substantive regional environmental constitutionalism in Europe is suggested by Haas’s observation that ‘in some instances environmental decisions have been elevated above the political level of contending domestic interests’.93 Also, even though it is not limited to EU Member States, the UN Economic Commission for Europe 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)94 embodies the right ‘to live in an environment adequate to his or her health and well-being’.95 In doing so, the Convention significantly strengthens the force of substantive regional environmental constitutionalism by allowing members of the public to bring communications before its Compliance Committee concerning any party’s compliance with the Convention.96 4.5

Comparative Environmental Constitutionalism

The creation of transnational constitutional rules is not occurring in isolated domestic regulatory spaces, but rather through processes of cross-jurisdictional learning, comparative analysis and legal transplantation. The foregoing collectively reside under the banner of comparative environmental constitutionalism. As an approach to understanding, evaluating, describing and creating constitutional environmental norms, comparative environmental constitutionalism has a strong cross-jurisdictional focus. Comparative environmental constitutionalism in this sense is the sum of many individual parts (domestic norms) that are often closely intertwined through processes of cross-jurisdictional learning, comparison and legal transplantation, including processes of transnational migration, interdependence, cross-pollination and sharing of constitutional ideas between countries.97

90 M. Rosenfeld, ‘Is Global Constitutionalism Meaningful or Desirable?’ (2014) 25 European Journal of International Law 177, 193. 91 See for a summary of environment-related cases the summary in European Court of Human Rights at www​.echr​.coe​.int/​Documents/​FS​_Environment​_ENG​.pdf. 92 See generally P. Sands, ‘European Community Environmental Law: Legislation, the European Court of Justice and Common-Interest Groups’ (1990) 53 Modern Law Review 685. 93 P. Haas, ‘Regional Environmental Governance’ in T. Börzel and T. Risse (eds), The Oxford Handbook of Comparative Regionalism (Oxford University Press 2016) 437. 94 Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 38 ILM 517. 95 S. Kravchenko, ‘The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements’ (2007) 18 Colorado Journal of International Environmental Law and Policy 1. 96 United Nations Economic Commission for Europe, www​.unece​.org/​env/​pp/​pubcom​.html. 97 L. Kotzé and C. Soyapi, ‘Transnational Environmental Law: The Birth of a Contemporary Analytical Perspective’ in D. Fisher (ed.) Research Handbook on Fundamental Concepts of Environmental Law (Edward Elgar 2016) 82.

176  Research handbook on transnational environmental law Comparative environmental constitutionalism has been dealt with in detail by various authors.98 For illustrative purposes, it suffices to only briefly focus on the transnational emergence of the right to a healthy environment in domestic constitutions. Today, the majority of the world’s constitutions provide for some form of rights-based approach to environmental protection; most clearly evident in the right to a healthy environment. These rights have been incorporated domestically in the absence of a right to a healthy environment in international law, and presumably also as compensation for such an absence with a view to ‘filling the gaps’ left by international law.99 Their formulation, scope, content and objectives could therefore not have developed alongside the guidance of some uniform provision in international law, as is presumably the case with the many socio-economic and political rights encapsulated in the International Bill of Rights. They have arguably instead come about as a result of continual processes of trans-jurisdictional legal borrowing involving constitutional assemblies, legislatures, the courts and civil society activist groups. For example, it is presumably no coincidence that section 73 of the Constitution of Zimbabwe of 2013 almost exactly mirrors the constitutional environmental right provision of neighbouring South Africa. There is a strong view that: Comparative constitutionalism plays an important role in analyzing and contextualizing environmental constitutionalism’s emerging influence … courts are increasingly faced with problems of first impression, problems that are answerable less by recourse to each country’s own history and constitutional origins than to contemporary experience and reason … These challenges must be answered with reference to the best practices among nations.100

Other than textual similarities such as those evidenced in the cases of Zimbabwe and South Africa, there is also evidence to suggest that courts play an increasingly important role in ‘borrowing’ from foreign jurisdictions and from international law when they interpret environmental human rights, which points to the critical role of the judiciary in facilitating transnational environmental constitutionalism. Turning again to the Constitution of the Republic of South Africa, its section 39 provides: ‘when interpreting the Bill of Rights, a court, tribunal or forum— (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law’. In a landmark environmental judgment,101 the country’s Constitutional Court extensively relied on international environmental law to guide its interpretation of ‘sustainable development’ provided in section 24 of the Constitution. Noting that ‘sustainable development is an evolving concept of international law’,102 the Court was persuaded that ‘As in international law, the concept of sustainable development has a significant role to play in the resolution of environmentally related disputes in our law.’103 In sum, it could be said that comparative environmental constitutionalism focuses on the convergence of domestic norms that are at once significantly influenced by and in tune with R. O’Gorman, ‘Environmental Constitutionalism: A Comparative Study’ (2017) 6 Transnational Environmental Law 435. 99 E. Daly, ‘Environmental Constitutionalism in Defense of Nature’ (2018) 53 Wake Forest Law Review 667. 100 May and Daly (n 12) 4–5. 101 Fuel Retailers Association of Southern Africa v Director-General Environmental Management and others (2007) ZACC 13 CCT 67/06. 102 Ibid, para. 46. 103 Ibid, para. 57 (emphasis added). 98

The transnationalization of environmental constitutionalism  177 international and regional law, especially to the extent that domestic law in most jurisdictions is dependent for its substance and form on supranational juridical norms.104 In sum then, the comparative environmental constitutional approach includes the internationalization of domestic laws; the nationalization of international law; the inter-jurisdictional transplantation of laws (or the internationalization of laws); the regionalization of domestic laws; and the nationalization of regional laws.105

5 CONCLUSION Today, few would question the need for a new ‘mode of understanding and engaging with environmental law’.106 Transnational environmental law has steadily emerged over the past decade as such a preferred mode to understand and engage with globalization and its many impacts on the state, global society and on environmental law and governance. Transnational environmental law embraces various different aspects of environmental law in a transnational regulatory space. More recently, it has also turned its attention to the constitutional aspects of environmental law, which it seeks to approach through the lens of global constitutionalism. Based on the analysis that this chapter has offered, it is already possible to confirm the presence of constitutional elements in the transnational regulatory space, however tentative this presence might be. As the processes of globalization intensify, and as the global socio-ecological crisis of the Anthropocene deepens, the potential of constitutional environmental protection arguably will be explored with ever-greater intensity in efforts to augment law’s role in sustaining life on Earth. A critical part of such an exploration will include the constitutionalization of transnational environmental law.

L.C. Backer, ‘From Constitution to Constitutionalism: A Global Framework for Legitimate Public Power Systems’ (2009) 113 Penn State Law Review 671, 687. 105 L. Kotzé, Global Environmental Governance: Law and Regulation for the 21st Century (Edward Elgar 2012) 267–93. 106 Heyvaert and Etty (n 32) 2. 104

11. Regime interlinkages: examining the connections between transnational climate change and biodiversity law Jonathan Verschuuren

1 INTRODUCTION Across the globe, biodiversity has been declining at an alarming rate for several decades, mainly due to habitat loss, pollution and alien invasive species. Global climate change adds further significant threats to already vulnerable species of wild flora and fauna. Ecosystems are changing, leading to species trying to adapt by shifting ranges or shifting migration patterns. Populations of flora and fauna are heavily affected by increasingly frequent and more severe extreme weather events. At the same time, biodiversity plays an essential role in climate change mitigation and adaptation. Healthy forests and other forms of vegetation, soils and oceans are indispensable in any climate change mitigation policy for their carbon uptake. We also depend on healthy soils and vegetation for many of our adaptation challenges, for instance to protect our coasts and our food production. The crossroads of biodiversity law and climate change law therefore provides an excellent case study to illustrate the increased likelihood of regime interactions – with a potential for disruptive impacts – and the growing need for transnational legal and regulatory orchestration in an era of globalized and systemic environmental risks. The chapter will discuss how both biodiversity law and climate law should address the decline of biodiversity under climate change. As a first step, the chapter will present current findings from biology research: what are the impacts of climate change on biodiversity conservation and vice versa, and what are the joint goals that need to be met by climate law and biodiversity law? In Section 2, I shall first briefly summarize the conclusions of the Intergovernmental Panel on Climate Change (IPCC) 2018 Special Report ‘Global Warming of 1.5°C’ which presents an overview of the state of the art of scientific research into interlinkages between climate change and biodiversity.1 Section 3 will then translate these findings into law: what legal measures are required to reduce climate change impacts on biodiversity and, vice versa, to use the potential biodiversity has to offer to reduce climate change itself? For each of the necessary interventions, I shall assess whether current biodiversity law and current climate law stimulate these. In Section 4, the potential of further collaborations across climate change and biodiversity regimes is examined, aimed at simultaneously enhancing climate goals and biodiversity goals and making climate and biodiversity policies mutually reinforcing. Section 5 concludes. The methodology for this chapter is For an earlier extensive overview of these interlinkages, Ad hoc Technical Expert Group on Biological Diversity and Climate Change, Interlinkages between Biological Diversity and Climate Change. Advice on the Integration of Biodiversity Considerations into the Implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol (CBD Secretariat 2003, CBD Technical Series No. 10). 1

178

Regime interlinkages: examining the connections  179 a literature review and a review of legal texts. The chapter primarily focuses on international law and EU law and the transnational interactions between them.

2

WHAT ARE THE CLIMATE CHANGE IMPACTS ON BIODIVERSITY CONSERVATION AND VICE VERSA? WHAT IS NEEDED TO ACHIEVE MUTUAL BENEFITS ON BOTH FRONTS?

The 2018 Special Report ‘Global Warming of 1.5°C’ provides the most recent summary of expected climate change impacts on biodiversity.2 Dozens of pages describe the findings of a wide range of research into the impact of climate change on ecosystems and animal and plant species. Almost half of the world’s local extinctions during the 20th century can be attributed to climate change.3 Species on average will lose 20–27% of their range, even in a 1.5°C world, which is a target we might not be able to achieve.4 Further loss of biodiversity is expected, but difficult to quantify, due to the effects of extreme weather events and the role of interactions between species, as well as due to the potential for highly invasive species to become established in new areas as the climate changes.5 Some ecosystems with rich biodiversity are likely to disappear altogether. The Amazon tropical forest has been shown to be close to its climatic threshold.6 At 2ºC we will see the total loss of coral reefs from the world’s tropical and subtropical regions, compared to a 70–90% decline at 1.5°C.7 Large-scale changes to food web structure are occurring in all oceans.8 In 2019, the above findings by the IPCC were confirmed by the first assessment by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) which concludes that climate change is a direct driver that is increasingly exacerbating the impact of other drivers on nature and human well-being.9 The same IPCC report also describes what is needed to reduce the negative climate change impacts on biodiversity. Ecosystem restoration is essential, not just to create more resilience so that biodiversity is better able to adapt to the changing climate, but also for mitigation purposes. Conservation, restoration and improved land management can enhance natural carbon sinks. Much attention is focused on REDD+ (Reducing Emissions from Deforestation and Degradation). Its multiple potential co-benefits have made REDD+ important for local communities, biodiversity and sustainable landscapes.10 However, the focus on forests raises IPCC, Global Warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C above Pre-Industrial Levels and Related Global Greenhouse Gas (GHG) Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Cambridge University Press 2018), www​.ipcc​.ch/​report/​ sr15/​. 3 Ibid, 3–72. 4 Ibid. 5 Ibid. 6 Ibid, 3–76. 7 Ibid, 3–135. 8 Ibid, 3–87. 9 S. Díaz and others, Summary for Policymakers of the Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, 6 May 2019, 4, www​.ipbes​.net/​global​-assessment​-biodiversity​-ecosystem​-services. 10 IPCC 2018 (n 2) 4–26. 2

180  Research handbook on transnational environmental law concerns of cross-biome leakage and encroachment on other ecosystems. Reducing rates of deforestation limits the land available for agriculture and grazing with trade-offs between diets, higher yields and food prices.11 Wetland management is another key factor,12 as is the restoration of coastal ecosystems.13 This shows that a high level of human intervention in ecosystems is needed to help biodiversity adapt to the changing climate and to increase natural carbon uptake by vegetation and soils. A wide range of interventions needs to be considered, in particular:14 ●● ecosystem restoration or (re-)creation to establish more resilient habitats or corridors and buffer zones to facilitate migration of species to more suitable areas and to increase carbon uptake; ●● reforestation to increase carbon uptake and increase resilience and habitat for forest species; ●● adjusted land-use management and agricultural practices to increase soil carbon sequestration and create healthier, more biodiverse soils that are more resilient to droughts and extreme weather events; ●● adjusted management of wetlands and coastal zones to create more resilient habitats for wetland and coastal species, increase sequestration, and provide better protection against extreme weather events and floods; ●● assisted relocation of species that cannot survive in their current natural habitat and, if necessary, the creation of new habitats to host these relocated species; ●● ex situ conservation of species and genetic resources for later relocation to new climate zones, and genetic modification to make plants and perhaps also animals more resilient to new climatic circumstances.

3

LEGAL MEASURES NEEDED TO REDUCE CLIMATE CHANGE IMPACTS ON BIODIVERSITY AND TO ENHANCE NATURAL CARBON SINKS

In this section, I shall discuss these six interventions and examine whether these are facilitated either under current biodiversity law or climate law. At the outset, it should be stressed that limiting further greenhouse gas (GHG) emissions has to be the first and foremost policy objective. Constraining global warming to 1.5°C rather than 2°C has strong benefits for biodiversity. Biodiversity law is not the primary instrument to achieve this. Nevertheless, biodiversity law does play an important role in enhancing carbon sinks (and thus contributes to the Paris

Ibid, 4–26. Ibid, 4–26. 13 Ibid, 4–27. 14 See for example A. Trouwborst, ‘Climate Change Adaptation and Biodiversity Law’ in J. Verschuuren (ed.), Research Handbook on Climate Change Adaptation Law (Edward Elgar 2013) 298–301; J. Verschuuren, ‘Climate Change: Rethinking Restoration in the European Union’s Birds and Habitats Directive’ (2010) 4 Ecological Restoration 431, 434–5; B.G. Mackey and others, ‘Climate Change, Biodiversity Conservation, and the Role of Protected Areas: An Australian Perspective’ (2008) 9 Biodiversity 11, 13. 11 12

Regime interlinkages: examining the connections  181 Agreement15 mitigation goal of limiting global average temperature rise preferably to 1.5°C) and in helping biodiversity adapt to the changing climate. In fact, in the area of biodiversity conservation, mitigation and adaptation are largely intertwined, as was shown in the previous section. Hence, the remainder of this chapter must focus not just on biodiversity law, but on climate law as well. 3.1

Restoration and Connectivity

The first category probably is the most important one. Given the current poor state of biodiversity, massive restoration is in order even in the absence of climate change. In the European Union (EU), for example, an assessment shows that only 16% of legally protected habitats, 23% of protected species (excluding birds) and 52% of protected birds are in a favourable condition.16 As the EU Wild Birds and Habitats Directives require all protected species and habitats to be in a favourable conservation status, there is obviously a large gap between what is legally required and the actual situation. Climate change further adds to the need to restore areas and connect them to become an ecological network as the impact of climate change on a species’ viability correlates with the degree of connectedness of the habitat of that species.17 Connectivity conservation has been developed as an important conservation tool aimed at restoring or maintaining the functional integrity of natural ecosystems and ecosystem processes, which includes the spatial arrangements and elements needed to allow for connectivity and the natural movement across their distribution ranges of species and species populations.18 Connectivity conservation is expected to be a global response to climate change, both for adaptation and mitigation.19 Legal instruments relevant to achieve this goal are quite diverse and can be found in planning law, protected areas law, sustainable resource use laws and water laws, as well as property law, private law and voluntary arrangements. As connectivity conservation needs to take place at different scales (from local, provincial and national levels, to the regional and even continental level), the use of multiple legal instruments at these various governance levels needs to be carefully orchestrated. To give an example: the Great Eastern Ranges corridor in eastern Australia is 3600 kilometres long and cuts across a large number of state and local jurisdictions, in addition to federal jurisdiction.20 Part of the designated corridor has protected area status, part is state forest or other state-owned land, and almost half is privately owned land. Besides individual land owners such as farmers, local communities and indigenous peoples also own land or have rights to use land or natural resources, which are grounded in constitutions, customary law or traditional practice, as well as legislation.21

Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 16 European Commission, The State of Nature in the EU (EU 2015). 17 B.S.J. Nijhof and others, ‘Indicators for the Convention on Biodiversity 2010: Influence of Climate Change on Biodiversity’ (2007) WOT Natuur & Milieu Working Paper No. 53. 18 B. Lausche and others, The Legal Aspects of Connectivity Conservation: A Concept Paper (IUCN 2013) 9. 19 Ibid, 32–4. 20 D. Farrier and M. Harvey, ‘The Great Eastern Ranges Initiative, Australia’ in D. Farrier and others (eds), The Legal Aspects of Connectivity Conservation, Case Studies (IUCN 2013) 16. 21 Lausche and others (n 18) 46. 15

182  Research handbook on transnational environmental law International biodiversity-related conventions do not refer to climate change in their legal texts, and, generally, do not have explicit requirements aimed at connectivity conservation.22 Under several of these conventions, however, the parties did adopt decisions related to climate change and connectivity. A prime example is a resolution adopted by the Conference of the Parties (COP) of the Convention on Migratory Species (CMS),23 in which parties are invited to undertake concerted efforts to integrate protected areas into wider landscapes and sectors, including through the use of connectivity measures such as the development of biological corridors, where appropriate, and the restoration of degraded habitats and landscapes in order to address the impacts of and increase resilience to climate change.24

Among all biodiversity-related international law instruments, the parties to the Bern Convention on the Conservation of European Wildlife and Natural Habitats25 probably have taken the need for restoration and connectivity measures in order to help biodiversity adapt to the changing climate most seriously. As early as in 2008, the Standing Committee of the Bern Convention adopted a recommendation to establish ‘networks of interconnected protected areas (terrestrial, freshwater and marine) and intervening habitat mosaic to increase permeability and aid gene flow’.26 Moreover, the Committee adopted detailed and comprehensive guidance on broader issues related to biodiversity and climate change one year later. This guidance goes beyond connectivity conservation. It also calls upon the parties to the convention to carry out an integrated management of the wider countryside to alleviate the overall pressure on biodiversity and facilitate movement of species between conservation areas, as species dispersal is likely to be the most important mechanism of species adaptation to climate change.27

In 2012, another Recommendation on climate change and biodiversity was adopted, which, among other things, calls upon the states to Take further steps to develop ecological networks, to promote and enhance the permeability of landscapes generally, and also enhance their protected areas networks, as appropriate, by increasing

22 For an elaborate discussion of the various provisions of the CBD, the CMS, the Ramsar Convention, the World Heritage Convention and others that do have relevance for connectivity conservation, see Lausche (n 18) 57–70. See also, A. Trouwborst, ‘International Nature Conservation Law and the Adaptation of Biodiversity to Climate Change: A Mismatch?’ (2009) 21 Journal of Environmental Law 419–42. 23 Convention on the Conservation of Migratory Species of Wild Animals (adopted 6 November 1979, entered into force 1 November 1983) 1651 UNTS 333. 24 CMS COP Resolution 10.3 on the Role of Ecological Networks in the Conservation of Migratory Species (adopted 25 November 2011) para. 6. The language is almost identical to CDP COP Decision X/31 on Protected Areas (adopted 29 October 2010) para. 14(a). 25 Bern Convention on the Conservation of European Wildlife and Natural Habitats (adopted 19 September 1979, entered into force 1 June 1982) 1284 UNTS 210. 26 Standing Committee Recommendation No. 135 (2008) on Addressing the Impacts of Climate change on Biodiversity (adopted 26 November 2009), Appendix, para. II(3)(c). 27 Standing Committee Recommendation No. 143 (2009) on further guidance for Parties on biodiversity and climate change (adopted 27 November 2008), Appendix, para. III(4–6).

Regime interlinkages: examining the connections  183 the extent of existing sites, designating new sites and establishing buffer zones, and ensuring they are sustainably and adaptively managed.28

Currently, reporting guidelines are being drafted to ensure harmonized reporting by the states on their climate change-related biodiversity conservation measures.29 Furthermore, existing treaty obligations can be interpreted to (implicitly) stimulate the adoption of restoration and connectivity measures.30 In the EU, the Wild Birds and Habitats Directives do seem to, more or less implicitly, require restoration measures to be implemented in case of habitats or species not being in a favourable conservation status.31 Both Directives, however, lack specificity regarding restoration and do not require Member States to adopt robust restoration policies.32 Furthermore, there is neither a legally binding obligation to establish connectivity between protected areas,33 nor an explicit obligation to take into account climate change impacts on biodiversity in any other way.34 On the other hand, one might also conclude that the current provisions do not hinder biodiversity-related climate change adaptation policies and contain an implicit requirement to take climate change impacts into account since such impacts determine the conservation status of species and habitats.35 The Court of Justice of the EU has provided a glimmer of hope in its Alto Sil decision, which found that protecting connectivity can be a legal requirement in case this is necessary for the maintenance of a protected species.36 Under international climate law, connectivity conservation may emerge under several Kyoto Protocol (KP)37 or Paris Agreement instruments. National Adaptation Plans (NAP) may mention connectivity conservation as an adaptation tool.38 The NAPs that have been submitted to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC)39 so far, however, hardly mention connectivity conservation. An exception is the Brazilian NAP, which explicitly sets as a target to ‘strengthen measures for conservation, recovery and sustainable use of biodiversity, aimed at increasing connectivity between remnants of ecosystems and consolidation of Conservation Units, with a view to promoting integrated landscape-scale forest management and reducing the vulnerability of biological 28 Standing Committee Recommendation No. 159 (2012) on the effective implementation of guidance for Parties on biodiversity and climate change (adopted on 30 November 2012). 29 Standing Committee, Proposed guidelines for reporting by Parties (2017), http://​rm​.coe​.int/​inf13e​ -2017​-proposed​-guidelines​-for​-reporting​-1st​-meeting​-restricted​-g/​16807174f6. 30 Trouwborst (n 14) 314–21. 31 Verschuuren (n 14) 432–4. 32 Ibid, 436–7. 33 Art. 10 of the Habitats Directive only gently invites Member States to implement connectivity in spatial planning decisions. See extensively, J. Verschuuren, ‘Connectivity: Is the EU’s Natura 2000 Network Only an Ecological Network on Paper?’ in C.-H. Born and others (eds), The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope? (Routledge 2015) 285, 299. 34 Ibid, 435–6. 35 A. Trouwborst, ‘The Habitats Directive and Climate Change: Is the Law Climate-Proof?’ in C.-H. Born and others (n 33) 303, 323; Verschuuren (n 33) 297–8. 36 Case C-404/09 Commission v Spain [2011] ECR I-11853. 37 Kyoto Protocol (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162. 38 Paris Agreement, Art. 7(9). 39 United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107.

184  Research handbook on transnational environmental law resources’ and to ‘strengthen policies and actions for conservation of aquatic ecosystems, providing maintenance of connectivity among such environments’.40 The second international climate change law anchor point for connectivity measures is the nationally determined contributions (NDC) submitted in accordance with the Paris Agreement.41 States can choose to increase sequestration through restoration and connectivity measures. Generally, however, the NDCs which have been submitted do not mention restoration or connectivity.42 A third international climate law instrument useful for restoration and connectivity actions is the Clean Development Mechanism (CDM).43 A nice example of successful connectivity is a project in Costa Rica aimed at increased carbon sequestration in small and medium farms through restoration of deforested lands. The project contributes to creating a diverse landscape, to connecting forest patches in the project area, and to creating habitats for biodiversity protection, especially for small mammals and birds.44 Unfortunately, there also are examples of CDM projects with negative impacts on connectivity, mainly through large energy infrastructure projects, such as hydropower projects and wind farms. Rules have been set within the CDM mechanism to assess and mitigate potential negative impacts on biodiversity.45 Fourthly, the various international climate change funds under the UNFCCC, the KP and the Paris Agreement allow for restoration and connectivity actions to be financed by the international community. Taking the Green Climate Fund as an example, the list of approved projects contains several examples where climate change adaptation, mitigation and biodiversity conservation go hand in hand. In Paraguay, for instance, a project financed by the Food and Agriculture Organization (FAO) aims at carbon sequestering on farm land, supporting local households to diversify their agricultural production in order to enhance resilience to the impacts of climate change. This project, among other things, will restore natural forests for watershed and riparian zone protection and biodiversity conservation corridors.46 3.2

Reforestation and Forest Management

Reforestation and forest management measures are extremely important to achieve climate change mitigation goals as these measures enhance carbon sequestration through increases in the area of carbon-rich ecosystems, increased carbon storage per unit area (for example, increased stocking density in forests), and the provision of wood in construction activities to replace products with higher GHG emissions for delivering the same service (such as concrete

Brazil Ministry of Environment, National Adaptation Plan to Climate Change. General Strategy, Vol. I (Brasilia 2016) at 49. 41 Paris Agreement, Art. 3. 42 Assessment by author of NDCs available in online NDC Registry (30 November 2018), www4​ .unfccc​.int/​sites/​NDCStaging/​Pages/​All​.aspx. 43 Kyoto Protocol, Art. 12; Paris Agreement, Art. 6(4). 44 CDM Project 7572, Carbon Sequestration in Small and Medium Farms in the Brunca Region, Costa Rica (COOPEAGRI Project), https://​cdm​.unfccc​.int/​Projects/​DB/​AENOR1349188271​.57/​view. 45 An analysis of the environmental impacts of the proposed project has to be carried out, including impacts on biodiversity and natural ecosystems and impacts outside the project boundary, UNFCCC Secretariat, CDM project standard for project activities, CDM-EB93-A04-STAN (2017), Art. 167. 46 GCF Project FP062, Poverty, Reforestation, Energy and Climate Change Project (PROEZA), www​.greenclimate​.fund/​what​-we​-do/​projects​-programmes. 40

Regime interlinkages: examining the connections  185 and steel).47 At the same time, such measures address the alarming loss of biodiversity caused by deforestation, particularly in tropical regions. Due to the current rate of deforestation, the international community’s first objective is to halt deforestation. This in itself is difficult as deforestation has many causes as indicated by Charlotte Streck and Michaela Schwedeler: ‘[drivers of deforestation are] global demand for commodities from forest regions, local and subsistence agriculture, fuel wood extraction and infrastructure development, [whereas indirect drivers] include international and national processes that influence human activities, such as changes in economic growth, population growth, commodity prices, diet shifts or technological change’.48 The main international legal instrument to address deforestation is probably the REDD+ framework under the UNFCCC and the Paris Agreement,49 although forestry instruments such as the voluntary Forest Stewardship Council (FSC) labelling scheme are relevant as well.50 REDD+ aims at incentivizing carbon sequestration in developing countries, both through avoided deforestation and through enhancement of forest carbon stocks. In addition, the scheme explicitly emphasizes so-called ‘non carbon benefits’, namely, social and biodiversity benefits (hence the ‘plus’).51 Given this deliberate focus of REDD+ on biodiversity conservation,52 it will not come as a surprise that there have been strong links with the Convention on Biological Diversity (CBD)53 from the start.54 It is thought that achieving the targets set under the CBD is strongly linked to the success of REDD+.55 The CBD’s involvement with REDD+ ranges from promoting a vision of REDD+ as a multiple benefit mechanism, to promoting policy coherence and determinacy for ensuring multiple benefits, and even to the development of standards safeguarding accountability, fairness and sustainability.56 P. Smith and others, ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in O. Edenhofer and others (eds), Climate Change 2014: Mitigation of Climate Change: Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC 2014) 829. 48 C. Streck and M. Schwedeler, ‘Addressing Drivers of Deforestation and Forest Degradation through International Law’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016) 213. 49 Paris Agreement, Art. 5(2). 50 Binding international agreements on deforestation do not exist, see P. Sands and J. Peel, Principles of International Environmental Law (4th edn, Cambridge University Press 2018) 428. 51 See for a detailed account of how these non-carbon interests became embedded in REDD+, A.‍G.‍M. La Viña and others, ‘History and Future of REDD+ in the UNFCCC: Issues and Challenges’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016) 11–29. For an overview of how the incentive system works, see: C. Voigt and F. Ferreira, ‘The Warsaw Framework for REDD+: Implications for National Implementation and Results-Based Finance’ in C.Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016), 30–59; H. van Asselt, ‘REDD+ and Biodiversity in Elisa Morgera and Jona Razzaque (eds), Biodiversity and Nature Protection Law III (Edward Elgar 2016). 52 See on the background of this focus, Y. Malhi and T.R. Marthews, ‘Tropical Forests: Carbon, Climate and Biodiversity’ in R. Lyster and others (eds), Law, Tropical Forests and Carbon: The Case of REDD+ (Cambridge University Press 2013). 53 Convention on Biological Diversity (adopted in 5 June 1992, entered into force 29 December 1993), 1760 UNTS 79. 54 M.A. Young, ‘REDD+ and Interacting Legal Regimes’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016) 89–125. 55 A. Long, ‘The Convention on Biological Diversity and REDD+’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2016) 192–3. 56 Ibid, 203–8. 47

186  Research handbook on transnational environmental law Since forests are important carbon sinks, references to forests and forest management abound in international climate law instruments.57 The increased attention to forests under the implementation of the Paris Agreement may have significant biodiversity co-benefits. The Paris Agreement specifically refers to the importance of incentivizing non-carbon benefits in its provision on forest conservation and deforestation.58 States can set forest conservation and reforestation targets in their NDCs,59 address sustainable forestry in their NAPs,60 and apply for forestry-related projects under the Green Climate Fund61 or under the CDM.62 In all such contexts, it is important that biodiversity impacts are taken into account, as forest management or reforestation may have a negative impact on other ecosystems (when replaced by forests) or on the conservation status of forests (through disturbance and the disruption of natural processes). To an extent, climate change instruments try to avoid such negative impacts. Under the CDM Rules, for example, the project participants are required to carry out an analysis of the environmental impacts of the proposed CDM project activity, including impacts on biodiversity and natural ecosystems and impacts outside the project boundary.63 The Paris Agreement, in its provision on the sustainable development mechanism, explicitly requires (‘shall’) parties to ‘enable opportunities for coordination across instruments and relevant institutional arrangements’.64 Hopefully, this will bolster attention for the non-mitigation aspects of forestry.65 In the EU, climate change mitigation through forest management will be addressed as of 2021 under the land use, land-use change, and forestry (LULUCF) Regulation.66 Emissions from forestry and other land use, such as agriculture (see below) have to equal sequestration by these sectors. Although the primary focus is on climate change mitigation, the LULUCF Regulation explicitly includes biodiversity conservation. Member States have to set a refer57 See for example H. van Asselt, The Fragmentation of Global Climate Governance: Consequences and Management of Regime Interactions (Edward Elgar Publishing 2014) 119–57; R. Lyster, ‘International Legal Frameworks for REDD+: Ensuring Legitimacy’ in R. Lyster and others (eds), Law, Tropical Forests and Carbon: The Case of REDD+ (Cambridge University Press 2013) 3–25. 58 Paris Agreement, Art. 5(2). 59 Brazil, for example, states in its NDC that it will strengthen and enforce the implementation of the Forest Code, at federal, state and municipal levels; strengthen policies and measures with a view to achieve, in the Brazilian Amazonia, zero illegal deforestation by 2030 and compensate for greenhouse gas emissions from legal suppression of vegetation by 2030; restore and reforest 12 million hectares of forests by 2030, Brazil NDC, Additional Information at 3, www4​.unfccc​.int/​sites/​NDCStaging/​Pages/​ All​.aspx. 60 See for example Ministry of Agriculture and Forestry of Finland, Finland’s National Strategy for Adaptation to Climate Change (Ministry of Agriculture and Forestry 2005) 176–81. 61 For example a project in Gambia aimed at restoring degraded forests, GCF Project FP011, www​.greenclimate​.fund/​projects/​large​-scale​-ecosystem​-based​-adaptation​-in​-the​-gambia​-river​-basin ​ -developing​-a​-climate​-resilient​-natural​-resource​-based​-economy. 62 For example CDM Project 9199: Forestry Restoration in Productive and Biological Corridors in the Eastern Plains of Colombia, https://​cdm​.unfccc​.int/​Projects/​DB/​DNV​-CUK1356495554​.91/​view. 63 UNFCCC Secretariat, CDM project standard for project activities, CDM-EB93-A04-STAN (2017), Art. 167. 64 Paris Agreement, Art. 6(8)(c). 65 Van Asselt (n 57) 126. Similarly, S. Maljean-Dubois and M. Wemaëre, ‘Biodiversity and Climate Change’ in E. Morgera and J. Razzaque (eds), Biodiversity and Nature Protection Law III (Edward Elgar 2016) 295, 299. 66 Regulation 2018/841/EU on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, [2018] OJ L 156, 1.

Regime interlinkages: examining the connections  187 ence level that is consistent with the objective of contributing to the conservation of biodiversity and the sustainable use of natural resources, as set out in the 2013 EU Forest Strategy and the EU biodiversity strategy.67 The 2013 EU Forest Strategy also focuses on both biodiversity conservation and climate change mitigation. It lists the EU’s actions to stimulate sustainable forestry and combat deforestation globally, referring to REDD+ as well as to EU policies,68 such as the EU Timber Regulation and the Forest Law Enforcement, Governance and Trade (FLEGT) licensing system.69 This strategy also focuses on climate change adaptation as it aims to protect forests and biodiversity from the significant effects of storms and fires, increasingly scarce water resources, and pests that are exacerbated by climate change.70 Finally, it should be noted that the boundary between forest management for carbon sequestration and terrestrial climate engineering is thinning. Under the CBD, climate engineering includes any technology that deliberately increases carbon sequestration from the atmosphere on a large scale which may affect biodiversity. Carbon sequestration is simply defined as the process of increasing the carbon content of a reservoir/pool other than the atmosphere.71 A much-discussed climate engineering technology is bio-energy with carbon capture and storage (BECCS). Trees are harvested for bioenergy production, with CO2 emissions being captured and stored in geological formations, thus effectively taking already emitted CO2 out of the atmosphere. This technology, like all intensive forestry operations, may negatively affect biodiversity because of the disturbance of forests and the disruption of natural ecosystem processes.72 That is why the CBD COP adopted guidance which does not allow climate-related geo-engineering activities that may affect biodiversity to take place, until there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies that would be conducted in a controlled setting in accordance with Article 3 of the Convention, and only if they are justified by the need to gather specific scientific data and are subject to a thorough prior assessment of the potential impacts on the environment.73

As such, the CBD COP has effectively limited the decision-making space of the UNFCCC COP.

Annex IV(A)(f). European Commission Communication, A New EU Forest Strategy: For Forests and the Forest-Based Sector, COM(2013) 659 final, 16. 69 Regulation 995/2010/EU laying down the obligations of operators who place timber and timber products on the market, [2010] OJ L 295, 23. 70 A New EU Forest Strategy (n 68) 4. 71 CBD COP 10 [2010] Decision X/33 footnote with para. 8(w). 72 The National Academies of Sciences–Engineering–Medicine, Negative Emissions Technologies and Reliable Sequestration: A Research Agenda (2018) 84; K. Dooley and others, ‘Co-producing Climate Policy and Negative Emissions: Trade-Offs for Sustainable Land-Use’ (2018) 1 Global Sustainability 1, 6. 73 CBD COP 10 [2010] Decision X/33 para. 8(w). See also in much detail the CBD Technical Series No. 84: Update on Climate Geoengineering in Relation to the Convention on Biological Diversity: Potential Impacts and Regulatory Framework (2016). 67 68

188  Research handbook on transnational environmental law 3.3

Adjusted Land-use Management and Agricultural Practices74

Land-use management and agriculture have important impacts on soils and soil biodiversity. Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 gigatonnes (Gt) of carbon, four times more than vegetation.75 Through soil degradation, much of natural soil carbon stocks have been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils represents 50–60% of the historical carbon loss of 42–78 Gt of carbon.76 With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.77 The carbon sequestration potential through restoration of organic agricultural soils can be as high as 663 megatonnes (Mt) CO2eq per year in 2035,78 or even 1.2 Gt.79 Soil erosion control and soil restoration has an estimated carbon sequestration capacity of 5–15% of global emissions.80 After peaking, a new equilibrium is reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.81 Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increase the ability of soils to hold moisture and to better withstand wind and water erosion, enrich ecosystem biodiversity, help cropping systems to better withstand droughts and floods, increase fertility for crops through restoring healthy soil microbial communities, and increase livestock efficiency (sustainable intensification).82 Practices aimed at soil carbon sequestration may also produce

This section partly reuses texts from J. Verschuuren, ‘Towards an EU Regulatory Framework for Climate Smart Agriculture: The Example of Soil Carbon Sequestration’ (2018) 2 Transnational Environmental Law 301, 303–4. 75 D. Kane, ‘Carbon Sequestration Potential on Agricultural Lands: A Review of Current Science and Available Practices’ (2015) Breakthrough Strategies & Solutions 3. 76 E. Lugato and others, ‘Potential Carbon Sequestration of European Arable Soils Estimated by Modelling a Comprehensive Set of Management Practices’ (2014) 20 Global Change Biology 3557, 3557. 77 P. Smith, ‘Agricultural GHG Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the Last 20 Years?’ (2012) 8 Global Change Biology 35–42. 78 R. Sommer and D. A. Bossio, ‘Dynamics and Climate Change Mitigation Potential of Soil Organic Carbon Sequestration’ (2014) 144 Journal of Environmental Management 83, 85. Note that this publication was criticized for being too negative on this potential in L. Lassaletta and E. Aguilera, ‘Soil Carbon Sequestration is a Climate Stabilization Wedge: Comments on Sommer and Bossio (2014)’ (2015) 153 Journal of Environmental Management 48-49. 79 E. Wollenberg and others, ‘Reducing Emissions from Agriculture to Meet the 2°C Target’ (2016) 22 Global Change Biology 3859, 3863. 80 M.G. Rivera-Ferre and others, ‘Re-Framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options’ (2016) 7 WIREs Climate Change 869, 874. 81 Ibid. 82 Smith and others (n 47) 846–7; J.R. Porter and others, ‘Food Security and Food Production Systems’ in C.B. Field and others (eds), Climate Change 2014: Impacts, Adaptation and Vulnerability, Part A: Global and Sectoral Aspects: Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (2015) 485, 515 and 518; Kane (n 75) 18; Rivera-Ferre and others (n 80) 884; The National Academies of Sciences–Engineering–Medicine (n 72) 85. 74

Regime interlinkages: examining the connections  189 various environmental benefits, such as avoided use of chemical fertilizers and pesticides, and improved biodiversity and wildlife.83 Examples of soil carbon sequestration practices include the use of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.84 Legal instruments aimed at stimulating such land use, again, are diverse. Within areas that have some kind of protected status, nature conservation or planning law might provide the means to prescribe a certain land use or land-use management. The key drivers of ‘carbon and biodiversity friendly’ land-use management and associated agricultural practices, however, are instruments aimed at steering agricultural practices under agriculture and/or climate policies. As in the case of forestry, all international climate law instruments again have a role to play to achieve climate change mitigation and adaptation goals while at the same time enhancing biodiversity. A large portion of the NDCs targets agriculture.85 The Green Climate Fund Project List includes many agriculture projects.86 Carbon pricing mechanisms may stimulate planting of native vegetation on farm land, or other mitigation actions with biodiversity co-benefits.87 The EU’s LULUCF Regulation requires Member States to account for emissions and sequestration through agricultural land use,88 while the EU’s Common Agriculture Policy (CAP) has strong financial incentives in place to stimulate farmers to adopt climate smart agricultural practices and technologies, including with a view to preserving biodiversity.89 It

A. Freibauer and others, ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1, 14–15. 84 Kane (n 75) 11–17; R. Lal, ‘Soil Carbon Sequestration to Mitigate Climate Change’ (2004) 123 Geoderma 1, 11–13; J. Chang and others, ‘Effect of Climate Change, CO2 Trends, Nitrogen Addition, and Land-Cover and Management Intensity Changes on the Carbon Balance of European Grasslands’ (2016) 22 Global Change Biology 338–50; M. Springman and others, ‘Options for Keeping the Food System within Environmental Limits’ (2018) 562 Nature 519–25. 85 Brazil, for example, aims to strengthen its Low Carbon Emission Agriculture Programme (ABC) as the main strategy for sustainable agriculture development, including by restoring an additional 15 million hectares of degraded pasturelands by 2030 and enhancing 5 million hectares of integrated cropland–livestock–forestry systems (ICLFS) by 2030, Brazil NDC, Additional Information at www4​ .unfccc​.int/​sites/​NDCStaging/​Pages/​All​.aspx, 3–4. 86 For example GCF Project 048: Low-Emission Climate Resilient Agriculture Risk Sharing Facility for MSMEs in Guatemala and Mexico, www​.greenclimate​.fund/​projects/​low​-emission​-climate​-resilient​ -agriculture​-risk​-sharing​-facility​-for​-msmes. 87 A prime example is provided by Australia’s carbon farming legislation, see J. Verschuuren, ‘Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative’ (2017) 7 Climate Law 1–51. 88 See Section 3.2 above. 89 For example, Art. 5 Regulation (EU) No. 1305/2013 of the European Parliament and of the Council of 17 December 2013, Art. 5 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No. 1698/2005, OJ L 347, 20 December 2013, 487–548. See extensively, Verschuuren (n 74) 309–13. 83

190  Research handbook on transnational environmental law seems, however, that the joint climate change–biodiversity benefits are not (yet) achieved,90 and that further amendments to the CAP are required.91 The UN Desertification Convention (UNCCD),92 too, is relevant for achieving increased carbon sequestration as well as an increase in biodiversity. Article 8 of this convention specifically requires its parties to encourage coordination carried out under the UNCCD, the UNFCCC and the CBD ‘in order to derive maximum benefit from activities under each agreement while avoiding duplication of effort’. The UNCCD’s target to achieve a land degradation neutral world in 2030 specifically aims to contribute to the conservation and sustainable use of biodiversity and addressing climate change.93 The newly established Land Degradation Neutrality Fund (LDN Fund) might provide a new instrument under the UNCCD aimed at achieving joint soil conservation–climate change–biodiversity benefits.94 3.4

Adjusted Management of Wetlands, Coastal and Marine Zones

The literature distinguishes several stages of adjusted wetland management. First, adaptation actions should focus on building wetland resilience to predicted climate change impacts through protecting or restoring the ecological character so as to create resilience or resistance against future climate change impacts.95 When threats are exacerbated by climate change more transformative adaptation options may be required to protect highly valued wetlands, for instance through ecological-engineering techniques that promote in situ transformation (e.g., over-restoration such as planting riparian zones with fast-growing, high-shade species) or the assisted translocation of wetland assets. Such transformative adaptation actions entail a magnified risk to non-targeted assets and services, as well as a higher degree of failure, and thus should be implemented with safety margins and regular reviews.96 As for coastal and marine adaptation, a range of mitigation and adaptation strategies is proposed. They include mangrove restoration and rehabilitation,97 temporarily suspending fishing activities after the occurrence of a natural disaster to help recovery of fishery resources,98 and reducing the

E. Rehbinder, ‘The Contribution of the EU Common Agricultural Policy to Protecting Biodiversity and Global Climate in Europe’ in F. Maes and others (eds), Biodiversity and Climate Change: Linkages at International, National and Local Levels (Edward Elgar 2013) 357, 374. 91 Verschuuren (n 74) 318–20. 92 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996) 1954 UNTS 3 (UNCCD). 93 The UNCCD 2018–2030 Strategic Framework, ICCD/COP(13)/21/Add.1 (23 October 2017), Annex, para. 1. 94 Ibid, para. 12(c). 95 C.M. Finlayson and others, ‘Policy Considerations for Managing Wetlands under a Changing Climate’ (2017) 68 Marine and Freshwater Research 1803, 1808. 96 Ibid, 1809. 97 B. Spencer and others, ‘Case Studies in Co-benefits Approaches to Climate Change Mitigation and Adaptation’ (2017) 60 Journal of Environmental Planning and Management 647, 653–4. 98 D.D. Miller and others, ‘Adaptation Strategies to Climate Change in Marine Systems’ (2018) 24 Global Change Biology e1. 90

Regime interlinkages: examining the connections  191 maximum sustainable yield or closing areas to fishing or other human activities so as to allow for recovery of species.99 Legal instruments needed for such actions are not just nature conservation law instruments, but also instruments from water law and planning law, including marine spatial planning, for instance for the designation of marine protected areas or protected coastal areas. In addition, instruments from fisheries law are to be applied. For example, shifting distributions of fish stocks may require negotiation or renegotiation of stock-sharing agreements between countries with fishing interests in these stocks.100 These issues have received much attention under various international and EU law instruments over the past 15 years or so. The bodies to the Ramsar Convention on Wetlands Conservation101 have adopted many COP Resolutions, Guidelines, Handbooks, Policy notes, etc. on climate change. A text search in the 5580 documents available through the Ramsar Convention’s website shows that a stunning total of 2014 documents refer to ‘climate change’.102 This indicates that wetland conservation and climate change adaptation and mitigation are now completely intertwined.103 Following the adoption of a COP Resolution in 2002, the obligation under the Ramsar Convention to formulate and implement planning so as to promote the conservation of designated wetlands now must focus on managing wetlands with the aim to increase their resilience to climate change and extreme climatic events.104 Research shows that wetland management should therefore mainly focus on accommodating and compensating for climate change, rather than on accepting or avoiding impacts, and on protecting wetland functions and ecosystem services rather than (just) on the conservation of certain species.105 Furthermore, wetland management has to result from a concerted effort by all available policy instruments, at multiple scales and across sectors.106 For the EU this implies, for example, using management plans for Natura 2000 sites under the Birds and Habitats Directives,107 river basin management plans under the Water Framework Directive,108 Flood Risk Management Plans under the Floods Directive,109 and coastal zone management

99 R. Rayfuse, ‘Climate Change, Marine Biodiversity and International Law’ in M. Bowman and others (eds), Research Handbook on Biodiversity and Law (Edward Elgar 2016) 123, 132. 100 Miller and others (n 98) e14. 101 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, (adopted 2 February 1971, entered into force 21 December 1975), 996 UNTS 245 (Ramsar Convention). 102 Text search performed on 11 December 2018, www​.ramsar​.org/​search​?search​_api​_views​_fulltext​ =​%22climate​%20change​%22​&​f​%5B0​%5D​=​type​%3Adocument. 103 See further Section 5 below. 104 Ramsar Convention, Art. 3. See extensively Trouwborst (n 14) 308. 105 Finlayson and others (n 95) 1811. 106 Ibid. 107 European Commission, Guidelines on Climate Change and Natura 2000 (EU 2013), 37. 108 European Commission, River Basin Management in a Changing Climate. Common Implementation Strategy for the Water Framework Directive (2000/60/EC), Guidance document No. 24 (EU 2009). 109 See extensively K. Debeuckelaere and G. Goldenman, ‘Climate Change, the EU Floods Directive and Biodiversity Protection: Lessons from the Scheldt on Land Use Planning as an Adaptive Measure’ in F. Maes, A. Cliquet, W. du Plessis and H. McLeod-Kilmurray (eds), Biodiversity and Climate Change: Linkages at International, National and Local Levels (Edward Elgar 2013) 305–27.

192  Research handbook on transnational environmental law under the Marine Strategy Framework Directive.110 The latter is very relevant also for coastal carbon sequestration in tidal wetlands and sea grass meadows (‘Coastal Blue Carbon’).111 3.5

Assisted Relocation

As the climate changes, so does the distribution of species. Generally, the distribution of species is shifting to higher latitudes and altitudes. These changes occur around the world and with all types of species, from birds and butterflies to trees.112 The climatic changes, however, occur at such a pace that not all species are able to keep up or sometimes simply cannot reach new habitats, for example due to the fact that there is no higher altitude nearby, or because a sea or other natural or manmade barrier blocks the journey to a higher latitude. Also, many species are already vulnerable due to other non-climatic stressors such as land clearing, habitat loss and invasive species; they are not resilient enough to be able to colonize new areas.113 In order to help species to settle in new areas, and thus saving the species from extinction, humans may physically relocate specimens to new areas. This is called conservation introduction, assisted migration or assisted colonization, and is already happening at a small scale around the world. In Canada, for example, for some species, tree seeds are allowed to be planted at higher latitudes taking into account the expected temperature when these trees are fully grown in 60 to 80 years from now, and research is underway to develop a full-fledged policy on assisted migration of tree species.114 Conservation introductions or assisted migration often contravene invasive species legislation which aims to protect native species against alien intruders in a given area, as, for example, required by the CBD.115 Furthermore, nature conservation law may hamper the catch and relocation of specimens of an already endangered species from its natural habitat. These and other legal issues become especially complex in case of relocation across national or subnational jurisdictions. Yet, international biodiversity law tends to overlook such challenges. Under the European Wildlife Convention, the 2012 Standing Committee’s recommendation on climate change and biodiversity calls upon the parties to follow the example set by the United

J. Verschuuren and J. McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1 Transnational Environmental Law 355, 364. 111 Coastal Blue Carbon is discussed as a carbon dioxide removal climate engineering strategy, see the National Academies of Sciences–Engineering–Medicine (n 72) at 31 and 57. Space constraints prevent me from discussing other climate engineering strategies for the marine area, such as ocean fertilization, where climate law, marine law and biodiversity law meet, as is evident from decisions adopted under the CBD, the London Dumping Convention and Protocol, and the OSPAR Convention; see J. Reynolds, ‘Climate Engineering Field Research: The Favorable Setting of International Environmental Law’ (2014) 5 Washington & Lee Journal of Energy, Climate and the Environment 417, 444, 459 and 466 respectively; Rayfuse (n 99) 141–3. 112 Trouwborst (n 14) 299–300. 113 Ibid, 300–301; P.C. McCormack, ‘Conservation Introductions for Biodiversity Adaptation under Climate Change’ (2018) 7 Transnational Environmental Law 323, 325–6. 114 For example in British Columbia, see www2​.gov​.bc​.ca/​gov/​content/​industry/​forestry/​managing​ -our ​ - forest ​ - resources/​ t ree​ - seed/​ f orest​ - genetics/​ s eed​ - transfer ​ - climate ​ - change/ ​ a ssisted ​ - migration ​ -adaptation​-trial. Assisted migration of tree species in Canada was first promoted by M. Johnston, Vulnerability of Canada’s Tree Species to Climate Change and Management Options for Adaptation: An Overview for Policy Makers and Practitioners (Canadian Council of Forest Ministers 2009). 115 Convention of Biological Diversity, Art. 8(h). 110

Regime interlinkages: examining the connections  193 Kingdom, to implement measures for the assessment of introductions, including assessment of the impacts of projected climate changes on species’ invasion potential.116 Under the EU Habitats Directive, assisted colonization seems possible should such an operation be necessary to ensure a species’ survival. As this likely will constitute the introduction of a non-native species, a prior assessment of the consequences for the species that are native to the area to be colonized seems a requirement under Article 22(b).117 According to this provision, introduction cannot ‘prejudice natural habitats within their natural range or the wild native fauna and flora’. The wording of this provision shows that (again) this provision does not explicitly focus on climate change adaptation. It may very well be the case that the entire habitat or many species of existing flora and fauna are changing or disappearing, in which case multiple species and interacting ecological components may need to be introduced.118 For these and other reasons, McCormack convincingly shows that a new legal framework is required that guides assisted relocations that are part of a biodiversity adaptation strategy.119 Assisted relocation may also infringe on the EU Invasive Alien Species Regulation (IAS Regulation).120 The IAS Regulation does not apply to species changing their natural range without human intervention in response to climate change.121 It can be assumed, therefore, that species changing their natural range with human intervention do fall within the scope of the Regulation. However, invasive alien species that are not alien to the territory of the EU (excluding the outermost regions) cannot be placed on the EU’s list of invasive alien species of Union concern against which measures need to be taken.122 It is, therefore, likely the IAS Regulation does not impede assisted relocation actions for most if not all species for which such actions would be considered in the future. 3.6

Ex Situ Conservation of Species and Genetic Resources and Genetic Modification

It is broadly accepted in the literature that ex situ conservation, i.e., maintenance and reproduction of flora and fauna in a controlled space outside their natural habitat, such as botanic gardens or zoos,123 is of growing importance due to climate change.124 Ex situ conservation of species allows for future reintroduction of populations that under current conditions cannot adapt to the changing climate. For species that under current circumstances cannot adapt to the changing climate and will become extinct, ex situ conservation is the only available conser-

Standing Committee Recommendation No. 159 (n 28). See Trouwborst (n 35) 319–21. 118 See extensively McCormack (n 113) 342. 119 Ibid, 323–45. 120 Regulation 1143/2014/EU of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, [2014] OJ L 317, 35. 121 IAS Regulation, Art. 2(2)(a). 122 IAS Regulation, Art. 4(3)(a). 123 V.H. Heywood, ‘The Role of Botanic Gardens as Resource and Introduction Centres in the Face of Global Change’ (2010) 20 Biodiversity Conservation 221–39. 124 For example, D.J. Pritchard and others, ‘Bring the Captive Closer to the Wild: Redefining the Role of ex Situ Conservation’ (2012) 46 Oryx 18–23. 116 117

194  Research handbook on transnational environmental law vation option. Attention, therefore, is primarily focused on those species that are particularly vulnerable to climate change, such as coral reef species.125 Gene banks are becoming important locations where genetic resources are stored to be used either for future reintroduction or for genetic modification. Currently, gene banks primarily focus on plant species that are important for human food production.126 Much research is carried out aimed at changing the genetics of plants and even animals to make them more adaptive to the changing climate: ‘genomic data can be used to assess the potential of populations to adapt to new challenges. In the near future, gene-editing tools may help endangered species cope with change’.127 An important adaptation strategy is to help farmers and plant breeders find and use genetically controlled plant traits that are suited to their changing climate conditions, or livestock that is more adaptable to changes such as increased heat stress.128 With livestock, much attention is also focused on mitigation: through genetic selection, methane emissions can be substantially reduced.129 Like many other international, regional and domestic nature conservation laws, the CBD has a clear preference for in situ conservation and sets a range of conditions to ex situ conservation.130 As climate change makes the option of ex situ conservation measures more and more important, it is clear that this preference for in situ conservation needs to be revisited.131 Climate law, however, may apply as well, especially law aimed at adaptation. Finland, for example, has included the preservation of gene pools of forest trees, forest tree improvement and seed management as an important aim in its National Adaptation Plan.132 When genetic modification is added to the policy approach, then laws governing these practices obviously need to be applied as well, including first and foremost the CBD’s Cartagena Protocol on Biosafety.133

M. Hagedorn and others, ‘Producing Coral Offspring with Cryopreserved Sperm: A Tool for Coral Reef Restoration’ (2017) 7 Scientific Reports 14432. 126 M.J. Considine Kadambot and others, ‘Nature’s Pulse Power: Legumes, Food Security and Climate Change’ (2017) 68 Journal of Experimental Botany 1815–18. 127 R.T. Corlett, ‘A Bigger Toolbox: Biotechnology in Biodiversity Conservation’ (2017) 35 Trends in Biotechnology 55–65. 128 G. Otieno and others, Enhancing the Capacity of Local Communities to Access Crop Genetic Diversity for Climate Change Adaptation (CCAFS 2018). 129 M. Melissa and others, ‘Climate Change and Livestock: Impacts, Adaptation, and Mitigation’ (2017) 16 Climate Risk Management 145–63. 130 Convention on Biological Diversity, Art. 9. 131 See D.J. Pritchard and S.R. Harrop, ‘A Re-Evaluation of the Role of ex Situ Conservation in the Face of Climate Change’ (2010) 7 Botanic Gardens Conservation International 3–6. 132 Ministry of Agriculture and Forestry of Finland, Finland’s National Strategy for Adaptation to Climate Change (2005) 177. 133 Cartagena Protocol on Biosafety (adopted 29 January 2000, in force from 11 September 2003) 2226 UNTS 208. 125

Regime interlinkages: examining the connections  195

4

TOWARDS FURTHER REGIME LINKAGES

As both the climate system and the biosphere are global systems operating at a planetary level,134 it is clear that all the interventions discussed above need to be carried out at all levels of governance, from the global to the local. International law probably is best suited to coordinate the transnational efforts, although domestic law certainly has a role to play as well. The overview shows that there are several instances where climate and biodiversity regimes interact, although these interactions are very limited. It is mostly the CBD and the Ramsar conventions that are very much focused on climate change adaptation and mitigation, whereas the UNFCCC is largely silent on biodiversity,135 although things have changed for the better somewhat with the adoption of the Paris Agreement.136 Some commentators have concluded that there is ‘potential to reap synergies between the climate and biodiversity regimes through collective interaction management’.137 I shall now discuss how such synergy could be achieved. The literature distinguishes several forms of inter-regime collaborations. The first, and most light-touch form is coherent interpretation of legal terms across areas.138 This can be pursued at all levels, including at the domestic level. Domestically ‒ or at the EU level for that matter ‒ states might even go beyond coherent interpretation and explicitly integrate biodiversity and climate change commitments in both biodiversity and climate change regimes.139 A second, still rather light form of collaboration among climate change and biodiversity regimes is through cross-sectoral funding. General environmental funds, as well as specific funds under both regimes, could finance projects with a dual aim, or require project proposals to be adjusted in order to achieve joint biodiversity-climate change goals. The Green Climate Fund is already doing this, but there definitely is room for a broader roll-out of this model by other financial institutions such as the Global Environment Facility and the World Bank, and under such funds as the LDN Fund.140 The third, and most frequently discussed, form of inter-regime collaborations consists of inter-agency initiatives or the clustering of biodiversity and climate change-related conventions. In 2001, a Joint Liaison Group (JLG) was established in which officials of the scientific subsidiary bodies, executive secretaries, and secretariats of the CBD, the UNFCCC and the UNCCD work together.141 Officials of the Ramsar Convention joined later, following the adoption of a resolution by Wetlands Convention parties asking contracting parties, other gov Climate change and biodiversity loss are two of the nine planetary boundaries recognized in Earth system science, J. Rockström, W. Steffen and others, ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14 Ecology and Society 32. 135 Maljean-Dubois and Wemaëre even state that ‘the UNFCCC behaves sometimes like an autistic convention hermetic to external concerns’ (n 65) 306. 136 With references to biodiversity in the preamble (‘Noting the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth’), and in the provisions on carbon sinks (Art. 5) and on the sustainable development mechanism (Art. 6), see Section 3.2 above. 137 Van Asselt (n 57) 258. 138 Trouwborst (n 14) 308. 139 Ibid, 311. 140 Maljean-Dubois and Wemaëre (n 65) 303. See on the LDN Fund, Section 3.3 above. 141 N. Goeteyn and F. Maes, ‘The Clustering of Multilateral Agreements: Can the Clustering of the Chemical-Related Conventions Be Applied to the Biodiversity and Climate Change Conventions?’ in F. 134

196  Research handbook on transnational environmental law ernments, secretariats and scientific and technical subsidiary bodies of the environment-related agreements, to improve collaboration and information exchange on wetlands and climate change at the international level through capacity building, resource mobilization, and collaborative work programmes.142 Although initial assessments of the results of the JLG were rather pessimistic,143 slowly but surely, interest in the pursuit of climate change–biodiversity co-benefits seems to be increasing. In 2017, the UNCCD COP, for example, adopted a decision inviting parties to ensure that their land degradation neutrality targets and the activities to achieve these targets ‘create leverage and synergies with their countries’ climate and biodiversity agendas, ideally through joint programming of the three Rio conventions, at the national level and with the full engagement of relevant stakeholders’.144 Another decision invites UNCCD parties to consider the use of locally adapted sustainable land management practices as an effective means of achieving land-based national objectives related to addressing (i) desertification/land degradation and drought and achieving land degradation neutrality; and (ii) climate change mitigation and adaptation, taking into consideration possible synergistic national actions related to the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity.145

It is good to see that parties use the overlapping mandates of the various relevant conventions to pursue synergies. In a 2015 legal memo released by the Ramsar Standing Committee, the committee concludes that climate change issues related to wetlands fall within the Ramsar Convention’s mandate, and that the UNFCCC and Ramsar bodies are capable of assuming co-beneficial commitments.146 At the international level, it is especially in the areas of (technical) standard setting, monitoring and reporting that collaborations are desirable, so as to be able to build common experience and expertise.147 The parties to the Ramsar Convention acknowledged this already in 2012. A Resolution on climate change and wetlands shows the extent to which international law instruments aimed at climate change and biodiversity, respectively, have become intertwined. The Resolution refers to a wide range of decisions on the subject of wetlands adopted under the UNFCCC, CBD, CMS, African–Eurasian Migratory Waterbird Agreement148 and others. The Resolution requests its Scientific and Technical Review Panel to work together with international organizations to prepare advice on sustainable management of carbon stocks which enhances wetland biodiversity and the delivery of ecosystem services, and to ‘collaborate with relevant international organizations and conventions, within their respective mandates, to further investigate the potential contribution of wetland ecosystems to climate

Maes and others (eds), Biodiversity and Climate Change: Linkages at International, National and Local Levels (Edward Elgar 2013) 147, 149. 142 Ramsar Convention COP 11 (2012), Resolution XI.14 ‘Climate change and wetlands: implications for the Ramsar Convention on Wetlands’, para. 34. 143 Maljean-Dubois and Wemaëre (n 65) 302; van Asselt (n 57) 235. 144 Decision 3/COP13 UNCCD, ICCD/COP(13)/21/Add.1 (23 October 2017), para. 1(a). 145 Decision 3/COP13 UNCCD, ICCD/COP(13)/21/Add.1 (23 October 2017), para. 6. 146 Ramsar Standing Committee, Legal Memo re: Legal Issues Relating to Climate Change and the Mandate of the Ramsar Convention (SC49-04, 26 May 2015). 147 Van Asselt (n 57) 259. 148 African–Eurasian Migratory Waterbird Agreement (adopted 16 June 1995, in force from 1 November 1999) 2365 UNTS 203.

Regime interlinkages: examining the connections  197 change mitigation and adaptation’.149 Some argue that there is a role for the UN Environment Programme (UNEP) to coordinate such clustering activities, but its weak institutional position may prevent this from happening.150 A fourth, more advanced, form of inter-regime collaborations would consist of a formal integration of legal texts, such as the integration of biodiversity-related norms into the REDD+ regime under the UNFCCC,151 or even the adoption of a joint protocol under both the UNFCCC and the CBD with the aim to explicitly link the two regimes.152 The latter is not without precedent after the adoption in 1988 of a joint protocol linking two conventions in the area of liability for nuclear damage so as to ascertain that parties to one convention could rely on the mechanism established under the other convention, should this be necessary.153 Dissimilar membership might impede such far-reaching mergers, but similar experiences with chemicals-related conventions show that it is possible to overcome these barriers.154

5 CONCLUSION Biodiversity is under severe pressure, yet it plays an essential role in climate change mitigation and adaptation. This chapter discussed how both biodiversity law and climate law should address the decline of biodiversity under climate change. The assessment of current instruments under climate law and biodiversity law shows that at the international and the EU level, both regimes are increasingly working together. Progress, however, is terribly slow and there are still areas where neither regime speaks to the other or they are in conflict. Faster and more intense forms of inter-regime collaborations and interactions are needed to fully achieve climate change adaptation, mitigation and biodiversity conservation goals. Inter-regime interactions need to be both broad and deep, ranging from agency collaborations to adopting coordinated or even integrated legal texts. This needs to happen not just at the international level, but also at the EU level and at domestic levels. Such transnational regime interlinkages for the pursuit of effective responses to climate change and biodiversity loss are of growing importance. These challenges are too complex and too interrelated to be addressed without paying attention to transnational regime interlinkages. How exactly such transnational interlinkages should be designed to have the greatest impact still is unclear. Further research and scholarship are needed fill this gap.

COP 11 (2012), Resolution XI.14, para. 35. Goeteyn and Maes (n 141) 172; Maljean-Dubois and Wemaëre (n 65) 302; van Asselt (n 57) 150. 151 Young (n 54) 124. 152 For instance, on adaptation of biodiversity to climate change, see Trouwborst (n 22) 442. 153 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention (adopted 21 September 1988, in force 27 April 1992) 1672 UNTS 302. 154 Goeteyn and Maes (n 141) 171. 149 150

12. Global values, transnational expression: from Aarhus to Escazú Emily Barritt

1 INTRODUCTION Democracy, transparency and public participation are the governance triumvirate of modern environmental law. The watchwords of just environmental decision making, they are integral to the vision of Principle 10 of the Rio Declaration on Environment and Development – that environmental issues are best handled with the participation of all concerned citizens.1 Each sits deep in the heart of transnational environmental law and together they are emblematic of the growing age of ‘emancipatory environmental politics’.2 They are values of great weight and moral authority, but they are also values without hard edges. They denote normative authority, but they do not prescribe precisely how they should be understood. Democracy, for example, is a value of mythological proportions which many of us claim to understand, yet it lacks a concrete definition, and attempting to offer one is a Sisyphean task. As guiding values therefore, they can be measured and moulded to suit different cultural, social and political contexts and are thus ripe for transnational expression. The expressive possibilities of these values thus represent the enduring appeal of Principle 10. Principle 10 was intended to operate both as a ‘benchmark’, against which national standards could be compared,3 and as a ‘forecast’ for the creation of new procedural rights in international law.4 However, rather than finding expression in a single legally binding instrument, the procedural rights and values of Principle 10 have cascaded through international, regional and domestic regimes, producing a variety of legislative and jurisprudential responses.5 Whilst this ensured that the influence of Principle 10 was widespread, the multiple directions of travel produced ‘asymmetric’ implementation of the Principle.6 Before 2018, nowhere were Principle 10 values more strongly articulated than in the United Nations Economic Commission for Europe (UN/ECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’

1 United Nations Rio Declaration on Environment and Development (adopted 13 June 1992) 31 ILM 874. 2 A. Mol, ‘The Lost Innocence of Transparency in Environmental Politics’ in A. Gupta and M. Mason (eds), Transparency in Global Environmental Governance: Critical Perspectives (MIT Press 2014) 39. 3 P. Sands, Principles of International Environmental Law (Cambridge University Press 1995) 118. 4 J. Jedrokśka, ‘Introduction. Procedural Environmental Rights in Theory and Practice’ in J. Jedrokśka and Magdalena Bar (eds), Procedural Environmental Rights: Principle X in Theory and Practice (Intersentia 2018) xvii–xxvi, xvii. 5 J. Ebbesson, ‘Principle 10: Public Participation’ in J.E. Viñuales (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press 2015) 294–303. 6 Ibid, 293.

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Global values, transnational expression: from Aarhus to Escazú  199 or ‘Aarhus’). 7 A regional legal instrument, developed with the express purpose of protecting the procedural environmental rights of access to information, public participation and access to justice, it embodies the values of democracy, transparency and participation both in its form and formation. When Aarhus was first drafted, Kofi Annan, the then United Nations (UN) Secretary-General, described it as the ‘the most impressive elaboration of Principle 10 of the Rio Declaration’ and other commentators followed suit, praising its commitment to democracy, transparency and participation.8 One of the many ambitions of the Aarhus Convention was to attract membership beyond the European region and Article 15 of the Convention made specific provision for this.9 To date, this has not happened.10 Instead, prompted in part by the call of Rio+20 for ‘action beyond state borders’ to promote Principle 10,11 the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (‘the Escazú Agreement’ or ‘Escazú’) has emerged as a bespoke incarnation of Principle 10 for Latin America and the Caribbean.12 The Escazú Agreement was drafted to entrench Principle 10 in the region’s legal order, but also to showcase and cement the ‘considerable progress in the legal recognition of the rights of access to information, participation and justice regarding environmental issues’ that had already been made.13 Escazú is no imitation of Aarhus, rather it is a distinctive elaboration of Principle 10 values that reflects the particular advancements and challenges of the region. There are genetic similarities between the two agreements – revealing their lineage and thus their claim to the title of Principle 10 values – but they are quite different. The emergence of the Escazú Agreement thus demonstrates both the endurance and the flexibility of Principle 10 and its composite values. Comparing the two agreements therefore provides a useful lens for looking at the core and the contours of these values, providing insight into what it is that makes them so contagious.14 Tracing the influence of Principle 10 in this way provides a microcosm for the study of transnational environmental law because it speaks to transnational law’s aspiration to ‘tran-

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 38 ILM 517. 8 Foreword, The Aarhus Convention: An Implementation Guide, ECE/CEP/72/Rev.1 (United Nations 2000). 9 Aarhus Convention, Art. 15. 10 Although there has been discussion about whether China should ratify the Convention: S. Whittaker, ‘The Right of Access to Environmental Information and Legal Transplant Theory: Lessons from London and Beijing’ (2017) Transnational Environmental Law 509, 511. 11 Ebbesson (n 5) 308. 12 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018, not yet in force) LC/CNP10.9/5; another bespoke Aarhus style agreement was the Revised African Convention on Conservation of Nature and Natural Resources (Maputo Convention), 11 July 2003, although its acceptance by African states has been less than emphatic: U. Byerlin, ‘Aligning International Environmental Governance with the “Aarhus Principles” and Participatory Human Rights’ in A. Grear and L. Kotzé (eds) Research Handbook on Human Rights and the Environment (Edward Elgar 2015) 337–8. 13 Declaration on the Application of Principle 10 to the Rio Declaration on Environment and Development (25 July 2017) A/CONF.216/13, www​.cepal​.org/​rio20/​noticias/​paginas/​8/​48588/​ Declaracion​-eng​-N1244043​.pdf. 14 N. Affolder, ‘Contagious Environmental Lawmaking’ (2019) Journal of Environmental Law 187. 7

200  Research handbook on transnational environmental law scend the mainstream organisation of law’.15 Principle 10 has a destabilizing effect on the traditional seats of authority by sharing decision-making capacity, uncoupling values such as public participation, transparency and democracy from the state’s domaine réservé and blurring the distinction between public and private and national and international.16 Canvassing these iterations of Principle 10 also grazes the surface of an important tension in international environmental law. That is the tension between universal aspirations and localized intellectual ideas. Transnational environmental law can thus provide a space for these tensions to be unpicked by helping to dismantle the North–South power dynamics of international environmental law and placing the organization of environmental law on a different footing.17 Using the Aarhus Convention and the Escazú Agreement as illustrations therefore, I demonstrate the importance of a value-based approach to environmental lawmaking. Such an approach balances the plurality of legal cultures with the need for common normative standards in a shared environment. The structure of this chapter is as follows. First, I examine the nature of the Principle 10 values identified and why they have such an entrenched place in environmental law. Secondly, I chart the respective journeys of the Aarhus Convention and Escazú Agreement, suggesting reasons why the Aarhus Convention failed to attract a non-European membership. Thirdly, I elaborate on what distinguishes Escazú from Aarhus, identifying the different priorities of each instrument. Finally, I reflect on how the sociopolitical and cultural context of each agreement transnationalizes Principle 10 and its values.

2

GLOBAL VALUES

The pedigree of democracy, transparency and participation as global values of environmental law is well documented. They adorn a multitude of environmental legal instruments, entrenching the global commitment to Principle 10. Their power lies in the combination of symbolic authority and definitional ambiguity; an instrument that claims to be an expression of, for example, environmental democracy makes a normative commitment without promising to deliver a concrete outcome. I am not suggesting that Aarhus and Escazú have wildly different understandings of these values. Rather, I shall show how the textual, visual and purposive differences between them embody distinct expressions of the values of democracy, transparency and participation within their permissive potential and that this plurality of expression is necessary to address the profound challenge of protecting the planet. Therefore, although both agreements purport to promote these values, they are quite different instruments that reflect their respective legal cultures and sociopolitical stories. A key claim of this chapter is that transnational environmental law is suffused with global values that are normatively powerful but practically malleable, capable of adapting to different sociopolitical contexts. Therefore, I do not offer neat definitions of these three concepts;

See V. Heyvaert and L.-A. Duvic-Paoli, ‘The Meanings of Transnational Environmental Law’ in this book. 16 J. Ebbesson, ‘The Notion of Public Participation in International Environmental Law’ (1997) Yearbook of International Environmental Law 51, 55. 17 M. Rafiqul Islam, ‘History of the North–South Divide in International Law: Colonial Discourses, Sovereignty, and Self Determination’ in S. Alam, S. Atapattu, C. Gonzalez and J. Razzaque (eds), International Environmental Law and the Global South (Cambridge University Press 2015) 24. 15

Global values, transnational expression: from Aarhus to Escazú  201 indeed, I believe that such a project is folly – a driving headlong into an ‘impenetrable thicket of ideas’.18 Rather my aim is to highlight their normative core along with their inherent flexibility. Each value is like playdough – immediately recognizable from its bright yellow pot, sticky scent and plasticky feel, but uncontainable in its potential to be shaped and reshaped according the players’ imagination. I do not make any claims about the virtue of this flexibility – values with no limits are open to abuse. Instead I recognize this flexibility as a political fact that permeates transnational environmental lawmaking. Transnational environmental lawyers therefore need to learn to be comfortable handling slippery ideas whilst simultaneously grasping their immutable core in order to properly understand their pathways and influence. In wrestling with how legal ideas spread, Natasha Affolder has cultivated the nomenclature of ‘contagion’ in order to capture the different directions and vectors of travel that values, frameworks, institutions and concepts can take in environmental law.19 What Affolder’s approach identifies is that in our eagerness to understand how ideas spread, we can make ‘false claims of universalism that conflate different manifestations of ideas’.20 But this problem has a counterpart, that without some form of reference point, important values and ideas become entirely relative. Transparency, for example, occupies ‘fundamentally contested political terrain’ and those following political events around the world can see how the term democracy is used to legitimatize far-from-democratic conduct.21 Transnational lawyers must therefore find and tread the line between false universalism and definitional sophistry. In what follows, I attempt this circus trick by briefly outlining the meaning of each value and the role that they serve in producing just environmental decisions to help explain why they are so deeply entrenched in environmental law. Democracy is what Walter Galle has described as an ‘essentially contested concept’.22 It is a concept that can be shaped according to the methodological and ideological ambitions of its author and thus many different structural arrangements and normative visions are described as democratic. A first-past-the-post voting system is very different to a discursive decision-making process, for example, but both approaches claim the title of democracy. They do this not just because they each represent forms of collective decision making, but also because, whether by default, historical fact or deep truth, democracy connotes a morally superior form of decision making which implies that democratically made decisions meet some standard of justice and legitimacy. Transparency is a similarly slick idea. Burnished with the moral authority of its association with ideas of honesty and openness and of its potential to achieve accountability and empowerment, it is a concept capable of meaning all things to all people. It is, as Elizabeth Fisher warns, ‘a scholar’s worst nightmare’ because it ‘is used by different scholars, commentators and decision-makers in different ways for different reasons’.23 Nevertheless, transparency R. Dahl, On Democracy (Yale University Press 2000) 37. Affolder is developing the language of ‘contagion’ as an alternative to the problematic idea of ‘legal transplants’ and, in her view, the too-passive concept of ‘diffusion’, Affolder (n 14) 198. 20 Affolder (n 14) 196. 21 A. Gupta and M. Mason, ‘A Transparency Turn in Global Environmental Governance’ in Gupta and Mason (n 2) 9. 22 W. Gallie, ‘Essentially Contested Concepts’ (1955) 56 Proceedings of the Aristotelian Society 167. 23 E. Fisher, ‘Transparency and Administrative Law: A Critical Evaluation’ (2010) 63 Current Legal Problems 272, 272. 18 19

202  Research handbook on transnational environmental law has ‘strong normative undertones’ and its associations with the pursuit of truth and openness represent a compelling moral narrative.24 Unlike democracy and transparency, the idea of participation is not existentially complex. The flexibility inherent in the idea of participation instead relates to the forms that participation can take. Participation might simply be offering one’s view on a planned project, or it might require intimate involvement in all aspects of a decision, thus participation can operate along a spectrum from tokenism to meaningful citizen control.25 Participation is distinct from democracy because it is focused more on listening to the voices of those affected by a decision than necessarily following the view of the majority. Strong participation and a thick vision of democracy may coalesce around the same vision of decision making – active and meaningful citizen involvement – but they are not necessarily the same idea. The animating moral ideals of citizen participation, therefore, relate more to human flourishing and dignity than necessarily to producing good group decisions.26 Inevitably there are overlaps between these ideas – democracy requires both participation and transparency to operate well and a failure to infuse transparency mechanisms with a democratic imperative can embed existing inequities. In spite of these overlaps, there is utility in viewing these values separately, not just because they are treated as distinct ideas in scholarship and doctrine, but also because they represent different facets of the pursuit of just decision making and a failure to recognize these differences makes these values even more unwieldy. The democratic preoccupation of environmental law (supported by transparency and participatory mechanisms) can be attributed to four complicating features of environmental decision making: the volume and diversity of environmental interests; the plurality of environmental values involved; the uncertain nature of environmental knowledge; and the complex nature of environmental risk.27 When making environmental decisions, there is no ‘silver bullet’28 and ‘equally [environmentally] conscientious citizens’ can hold opposite views.29 This has given rise to a strong emphasis on democratic approaches to environmental decision making, promoting both transparency and participation. Understanding these complicating features is central to understanding why Principle 10 has reached global ascendency and thus the role that democracy, transparency and participation play as global values of environmental law. The Stockholm Declaration 1972 set a high ambition for environmental law, whereas Principle 10 of the Rio Declaration offered a way to navigate the difficulties in environmental decision making – recognizing that achieving the best environmental outcome is rarely straightforward.

Mol (n 2) 51. S. Arnstein, ‘A Ladder of Citizen Participation’ (1969) Journal of American Planning Association 216; A. Fung, ‘Varieties of Participation in Complex Governance’ (2006) Public Administration Review 66. 26 U. Etemire, Law and Practice on Public Participation in Environmental Matters: The Nigerian Example in Transnational Comparative Perspective (Routledge 2016) 82–4. 27 For further discussion of these complicating features see E. Barritt, ‘Diplomacy, Democracy and Impossible Ideas’ in S. Minas and V. Ntousas (eds), EU Climate Diplomacy, Politics, Law and Negotiations (Routledge 2018) 24–5. 28 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) Transnational Environmental Law 1, 2. 29 A. Leopold, Sand County Almanac: And Sketches Here and There (Oxford University Press 1949) 168. 24 25

Global values, transnational expression: from Aarhus to Escazú  203 Both the Aarhus Convention and the Escazú Agreement have produced distinctive maps to help navigate the complexities of environmental decision making.

3

FROM AARHUS TO ESCAZÚ

Now in its 21st year, the Aarhus Convention was adopted at the Fourth Ministerial Conference of the ‘Environment for Europe’ process and entered into force on the 30 October 2001. To date, it has been adopted by 47 Parties within the UN/ECE region. The Convention is founded on three related pillars: access to information (Articles 4 and 5), public participation (Articles 6, 7 and 8) and access to justice (Article 9) in environmental matters. Although the negotiation of the Convention officially began in 1996, its inception can be traced back to an ECE draft charter of environmental rights and obligations prepared in 1990.30 This charter was never formally endorsed, in part because the inclusion of a substantive right to a healthy environment was too divisive.31 Following the lead of Principle 10, at the second Environment for Europe Ministerial Conference in 1994, a Task Force on Environmental Rights and Obligations was established to draw up draft guidelines on the merits of procedural rights in environmental matters.32 These guidelines – the ECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making (the Sofia Guidelines)33 – were endorsed in October 1995 and were a significant ‘stepping stone’ on the ‘road to Aarhus’.34 It was after the Third Environment for Europe Ministerial Conference that an Ad Hoc Working Group was established to prepare a convention on access to information and public participation in environmental matters.35 Once the ‘draft elements’ of the Convention had been drawn up, negotiations began in June 1996. Negotiations were in keeping with its participatory ambitions, thus in addition to the participation of member states, there was an ‘unprecedented level’ of participation from non-governmental organizations (NGOs), including a coalition of environmental citizen organizations established specifically for the purpose of drafting the Convention.36 The Aarhus Convention was endorsed as a ‘new kind of environmental agreement’ not just because of the participatory nature of its negotiation but also because it was the first environmental law convention to provide citizens’ rights that were directly enforceable as against the relevant Contracting Parties.37 These ‘vertical’ obligations are supported by a compliance procedure that gives members of the public the ability to directly report non-compliance by the Parties to the Aarhus Convention Compliance Committee, thus enabling them to enforce their

ENVWA/R.38 (draft ECE Charter on Environmental Rights and Obligations), Annex I. M. Déjeant-Pons, M. Pallemaerts and S. Fioravanti, Human Rights and the Environment (Council of Europe Publishing 2002) 17. 32 Ibid 17. 33 UN/ECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making, 17 January 1996, ECE/CEP/24. 34 The Aarhus Convention: An Implementation Guide, 2nd edn (n 8). 35 Ibid, 16. 36 Ibid, 16. 37 Déjeant-Pons, Pallemaerts and Fioravanti (n 31) 17; S. Kravchenko, ‘The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements’ (2007) 18 Colorado Journal of International Environmental Law & Policy 1. 30 31

204  Research handbook on transnational environmental law rights under the Convention.38 Even more exceptionally, these obligations have ‘diagonal’ effect – not only do the obligations apply between the Parties and their own publics, but they also apply between the Parties and all members of the public.39 This is because the Convention contains a provision which states that the rights of access to information, public participation and access to justice should apply to all without ‘discrimination as to citizenship, nationality or domicile’.40 In these ways, the Aarhus Convention was a new kind of environmental agreement, as it adopted the form of a human rights instrument rather than that of a purely environmental agreement. From its conception, drafters of the Convention had designed it to attract membership from states outside the UN/ECE region, in the hope of moving it from its regional status to an international one.41 Although some non-UN/ECE members expressed interest in joining, none have in fact done so.42 In some ways this seems strange, as the very success of the Convention within the European region was its pliancy – states were not required to commit to controversial and costly substantive environmental rights and few states could object (publicly at least) to a commitment to more democracy. Understanding concretely why Aarhus was unable to attract a wider membership is a research enquiry in its own right, but for present purposes, I would suggest three reasons for the lack of global reception. First and foremost, universal membership of a regionally negotiated treaty is antithetical to the very idea that the Convention professes to promote – that environmental problems are best resolved with the participation of those concerned. Just as environmental decisions require participation from those affected, so too do environmental agreements. Values as broad as democracy and transparency manifest in manifold ways, and different regions and states will have different views on how they should be understood. The ambition of Article 15 of the Aarhus Convention somehow missed the point. An agreement developed on the basis of Principle 10 needs to be one crafted by those who will be bound by it. As Alicia Bárcena emphasizes, what is important about the Escazú Agreement is that it was ‘negotiated by and for the region’.43 Following on from this, some very European assumptions are imbedded in the Aarhus Convention. For example, there are assumptions about literacy and language skills and the ease with which citizens might participate in environmental decision making. As Sumudu Atapattu laments in her analysis of the Aarhus Convention, those who live in poor, marginalized and often indigenous communities cannot even begin to access these access rights – ‘many of these communities are illiterate and cannot access the relevant information, even Aarhus Convention, Art. 15; Kravchenko (n 37). J. Knox, ‘Diagonal Environmental Rights’ in M. Gibney and S. Skogly (eds), Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press 2010). 40 Aarhus Convention, Art. 9(3). 41 Such an aspiration is not unique to the Aarhus Convention; other UN/ECE environmental agreements have been opened to global membership through subsequent amendments, e.g., UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes (17 March 1992) 31 ILM 1312 (1992), decision VI/3; UNECE Convention on Environmental Impact Assessment in a Transboundary Content (25 February 1991) 30 ILM 800 (1991), decision II/14. 42 L. De Silva, ‘Escazú Agreement 2018: A Landmark for the LAC Region’ (2018) 2 Chinese Journal of Environmental Law 93, 93–4. 43 A. Bárcea, ‘The Escazú Agreement: An Environmental Milestone for Latin America and the Caribbean’ (CEPAL, 26 September 2018), www​.cepal​.org/​sites/​default/​files/​article/​files/​op​-ed​_escazu​ _final​_english​_final​.pdf. 38 39

Global values, transnational expression: from Aarhus to Escazú  205 if the information is publicly available’.44 Therefore, without a companion commitment to inclusion, education and eradicating inequalities, participation as envisaged by the Aarhus Convention is very Euro-centric. Finally, the ambition of the Aarhus Convention is limited to an elaboration of procedural rights. Early attempts to develop a treaty with substantive environmental commitments proved too controversial to continue and when the United Kingdom (UK) ratified the Convention, it issued a statement asserting that the reference to a substantive right in Article 1 and the preamble was ‘aspirational’ and not legally enforceable, stressing the strictly procedural focus of the Convention.45 Further, although in many ways Aarhus emulates a human right treaty, it does not expressly own this status. For regions where the deep connection between environmental interests and human rights is pronounced or where there is already a rich commitment to substantive environmental rights, the Convention’s vision can seem myopic. For example, before negotiations for the Aarhus Convention officially began, Latin America was already emerging as a world leader in the ‘promotion and protection of environmental rights’.46 Therefore, although Aarhus ‘has produced rules and procedures worthy of emulation’47 (as illustrated by Sean Whittaker’s work on access to information rights in China) it does not follow that the Convention is the best and only expression of Principle 10.48 Whilst there are contagious elements within the Aarhus Convention, it does not work as a neatly transplantable instrument.49 Given Affolder’s criticism of legal transplants, this is rightly so – environmental law is place-based and culture-based and the formal transplantation of legal ideas suppresses sensitivity to these factors.50 This is not to deny that the Aarhus Convention may provide helpful structures and mechanisms to inspire thematic variation, for example its innovative Aarhus Convention Compliance Committee, rather it is to recognize that it is not a paradigm to be imitated. Plans to produce an agreement similarly devoted to democracy, transparency and public participation, but designed specifically for Latin American and the Caribbean, had existed since the adoption of the Rio Declaration. However, it took some time for these plans to crystallize into a specific proposal.51 In the lead-up to the Rio+20 Summit, members of the Access Initiative, a group of civil society organizations, pressed for these general commitments to be concretized. The Access Initiative’s campaign was successful, and at the Rio+20 Conference ten states from the region agreed to start negotiations for such an agreement.52 During the con44 S. Atapattu, ‘The Significance of International Environmental Law Principles in Reinforcing or Dismantling the North–South Divide’ in Alam, Atapattu, Gonzalez and Razzaque (n 17) 107. 45 United Nations, ‘Aarhus Convention, Status of Ratifications in UN Treaties Database’, https://​ treaties​.un​.org/​pages/​ViewDetails​.aspx​?src​=​TREATY​&​mtdsg​_no​=​XXVII​-13​&​chapter​=​27​&​lang​=​en. 46 A. Fabra Aguilar, ‘Enforcing the Right to a Healthy Environment in Latin America’ (1994) 3(4) Review of European Community and International Environmental Law 2, 4; D. Boyd, The Environmental Rights Revolution (UBC Press 2012) 124 and 143. 47 De Silva (n 42) 93. 48 Whittaker (n 10). 49 De Silva (n 42) 94. 50 Affolder (n 14) 189. 51 B.O. Giupponi, ‘Fostering Environmental Democracy in Latin America and the Caribbean: An Analysis of the Regional Agreement on Environmental Access Rights’ (2019) Review of European, Comparative and International Environmental Law 1. 52 Chile, Costa Rica, Dominican Republic, Ecuador, Jamaica, Mexico, Panama, Paraguay, Peru and Uruguay.

206  Research handbook on transnational environmental law ference, the states issued a declaration which affirmed the importance of Principle 10 and committed to ensuring the ‘proper fulfilment of the rights of access to information, participation and justice regarding environmental issues’ through a regional treaty.53 Thus, it recognized both the universality of democracy, participation and transparency as values, but also the need for culturally and regionally sensitive expression and implementation. Arrangements for the Agreement began in 2012 and significant preparatory work was done to set the tone of both the negotiations and the Agreement itself. During the preparatory phase a number of documents were produced to provide a foundation for the negotiation process, including a road map,54 a supporting plan of action55 and the Lima Vision.56 These documents set an ambitious guiding narrative for the future agreement, emphasizing the importance of a regionally tailored agreement with substantial public participation. The Lima Vision also highlighted the common values and principles that would animate the Agreement, including transparency, inclusion and collaboration.57 Negotiations officially commenced in November 2014 after the adoption of the Santiago Decision, which reiterated the commitment to Principle 10 and its values.58 The Negotiation Committee was composed of 24 countries and was led by seven Presiding Officers.59 Support for the negotiations was provided by UN Economic Commission for Latin American and the Caribbean (‘ECLAC’), which acted as a technical secretariat and prepared a preliminary draft of the Agreement for the Parties to work with. As with the Aarhus Convention, there was substantial NGO and civil society participation. In order to facilitate public participation, the Santiago Decision required the election of two representatives of the public to ‘maintain a continuous dialogue’ with the Presiding Officers60 and in 2016 the Parties adopted an agreement on ‘Modalities for Participation of the Public’ which reviewed and reiterated the Negotiating Committee’s commitment to participation. Public participation was thus deeply ingrained in the negotiation process. After nine negotiating sessions, and six virtual intersessional meetings, the final text was agreed and, on 4 March 2018, the Escazú Agreement was adopted, opening for signatories on 27 September 2018. The Agreement emerged as a distinctive Principle 10 instrument to much fanfare. At the opening ceremony it was described by Costa Rican Vice-President, Epsy

53 Declaration on the Application of Principle 10 to the Rio Declaration on Environment and Development (n 13). 54 Roadmap for the Formulation of an Instrument on the Application of Principle 10 in Latin America and the Caribbean (8 November 2012), https://​repositorio​.cepal​.org/​bitstream/​handle/​11362/​38728/​ S2012855​_en​.pdf​?sequence​=​1​&​isAllowed​=​y. 55 Plan of Action to 2014 for the Implementation of the Declaration on the Application of Principle 10 of the Rio Declaration on Environment and Development in Latin America and the Caribbean and its Road Map (17 April 2013), https://​repositorio​.cepal​.org/​bitstream/​handle/​11362/​38731/​S2013208​_en​ .pdf​?sequence​=​1​&​isAllowed​=​y. 56 Lima Vision for the Regional Instrument on Access Rights Relating to the Environment (Lima, 31 October 2013), https://​repositorio​.cepal​.org/​bitstream/​handle/​11362/​38734/​S2013914​_en​.pdf​?sequence​ =​1​&​isAllowed​=​y. 57 Lima Vision, 3–4. 58 Santiago Decision (10 November 2014), https://​repositorio​.cepal​.org/​bitstream/​handle/​11362/​ 37214/​S1420707​_en​.pdf​?sequence​=​1​&​isAllowed​=​y. 59 Chile and Costa Rica (the co-chairs) as well as Argentina, Mexico, Peru, Saint Vincent and the Grenadines, and Trinidad and Tobago. 60 Santiago Decision (n 58) Decision 6.

Global values, transnational expression: from Aarhus to Escazú  207 Campbell Bar, as ‘an enormous leading step to make environment democracy a reality’61 and ECLAC Executive Secretary Alicia Bárcena predicted that it would ‘become synonymous with greater democracy, transparency and well-being’.62 Like the Aarhus Convention, the Escazú Agreement is structured around three rights: the right of access to information (Articles 5 and 6), the right of the public to participate in environmental decision making (Article 7) and the right of access to justice in environmental matters (Article 8). However, even with this structural similarity there are important differences between the two agreements. These differences relate not only to the demands of their respective legal cultures, architectures and sociopolitical backgrounds – for example the specific protection for defenders of environmental human rights in Article 9 of Escazú – but also to the different point in environmental law history at which each agreement was introduced. The Aarhus Convention emerged as an early adoption of Principle 10, whereas Escazú grew gradually and in some ways more organically out of a region where significant strides towards environmental constitutionalism and to developing environmental rights jurisprudence have been made.63 In the following section I highlight five features of the Escazú Agreement which distinguish it from the Aarhus Convention. In so doing, I pave the way for examining how global values find transnational expression.

4

VARIATION ON A THEME

In many ways the Escazú Agreement is very similar to the Aarhus Convention. Both impose vertical obligations on states towards their citizens, both ensure that environmental NGOs are able to access procedural rights to further environmental protection goals and both empower the public to access an independent compliance mechanism. However, in a number of ways Escazú exceeds the ambition and vision of the Aarhus Convention, pursuing a more substantive agenda for Principle 10 values. These differences draw attention to the movement of contagious legal ideas and the importance of regional negotiation of global values in order to take into account the influence of legal culture and sociopolitical context. For the purposes of this chapter, I identify five key differences. First, both in terms of visual appearance and linguistic approach, Escazú is drafted in a far more accessible manner than Aarhus. Secondly, more attention is paid to the difficulty of accessing information for those who experience language barriers or are unfamiliar with bureaucratic machinery. Thirdly, there is less deference to commercial interests in relation to information access. Fourthly, the legal recognition of substantive environmental rights is more straightforward. Fifthly and foremostly, the Escazú Agreement makes explicit reference to its status as a human rights treaty. It is likely that more differences will emerge as the Agreement grows into its setting. This will be particularly so, as the Escazú Agreement interacts with other institutions in the region, such as the Inter-American Commission on Human Rights and the Inter-American Court on

61 Press Release: ‘Fourteen Countries Sign New Generation Agreement at UN Headquarters on Access to Information, Public Participation and Justice in Environmental Matters’ (CEPAL, 27 September 2018), www​.cepal​.org/​en/​pressreleases/​fourteen​-countries​-sign​-new​-generation​-agreement​ -un​-headquarters​-access​-information. 62 Bárcea (n 43). 63 Olmos Giupponi (n 51) 5.

208  Research handbook on transnational environmental law Human Rights, just as the Aarhus Convention’s status began to solidify with its interaction with the Court of Justice of the European Union and the European Court of Human Rights.64 For present purposes, these five differences are intended to illustrate the claim of this chapter, that global ideals need transnational expression. First, Escazú is aesthetically and linguistically distinctive from Aarhus. Its presentation is far more accessible than the cramped, typewriter type of the Aarhus Convention and it is drafted in language that is straightforward, stripped of the linguistic affectations of an international legal instrument. For a treaty committed to ensuring participation and wide access to information, these seemingly surface-level details are important. Legal documents are not just difficult to read because of the proclivities of legal drafters, but also because lawyers have not historically paid attention to the impact of font choice and typesetting or the use of space and imagery to make documents more readable. Visual presentation can and does improve the accessibility of written materials and the efforts made in the presentation of the Escazú Agreement, for example using a sans serif font, should not be underestimated.65 Similarly, the choice of language in Escazú lends authority to its commitment in Article 4(5) to ensuring that members of the public can meaningfully access the rights promoted in the Convention. Contrast, for example, the diplomatic obfuscation of Article 1 Aarhus: ‘in order to contribute to the protection of the right …’ with the direct simplicity of Article 4(1) Escazú: ‘Each Party shall guarantee the right’. The awkward construction of Article 1 Aarhus arises because of the need for compromise between the Contracting Parties to the Aarhus Convention, but this subtext is not obvious to a lay reader and makes Article 1 a complex provision to understand.66 To take a less contentious provision, the access to justice commitment of Escazú in Article 8 opens with a simple statement that each Party is to ‘guarantee the right of access to justice in environmental matters’, whereas the companion provision in Aarhus – Article 9 – fails to state this aim simply. Access to justice is, of course, the implication of the Article, but it is not made explicit. The failure to simply state the aims of any given Article may be convention in legal drafting, but the need to interrogate and interpret even the most basic aims makes much of Aarhus inaccessible to a non-lawyer. Secondly, drafters of the Escazú Agreement recognize that not all people have the capacity to access information without a special effort from the keepers of that information. Numerous factors can make meaningfully accessing information difficult – illiteracy, language barriers, unfamiliarity with bureaucratic processes, lack of access to technical experts67 and a lack of time given ‘other pressing daily challenges’.68 Referring to a 2016 study by the National Institute of Social Research, Lorenzo Squintani highlights that participatory rights are largely

E. Hey, ‘The Interaction between Human Rights and the Environment in the European “Aarhus Space”’ in Grear and Kotzé (n 12). 65 See, for example, the work of the human rights organization, Change People, on making written documents accessible to disabled people: ‘How to Make Information Accessible’, www​ .changepeople​.org/​Change/​media/​Change​-Media​-Library/​Free Resources/How-to-make-info-accessibl e-guide-2016-Final.pdf. 66 For a more detailed discussion of these complexities, see E. Barritt, The Foundations of the Aarhus Convention: Environmental Democracy, Rights and Stewardship (Hart 2020), Chapter 4. 67 S. Kravchenko, ‘The Myth of Public Participation in a World of Poverty’ (2009) 23 Tulane Environmental Law Journal 33, 36. 68 Atapattu (n 44) 107. 64

Global values, transnational expression: from Aarhus to Escazú  209 only exercised by highly educated groups in society.69 Therefore, without explicit consideration of the needs of those with less formal education, environmental access rights can only be accessed by privileged groups in society, thus exacerbating existing inequalities. These barriers are acknowledged in the Escazú Agreement. Articles 5(3) and (4) impose a duty on Parties to the Agreement to ensure that people or groups in vulnerable situations have assistance in accessing information, both in terms of formulating requests for that information and also in processing the information once received. Whilst Article 3(3) of the Aarhus Convention recognizes the need to promote environmental education and Article 3(4) recognizes the need to support organizations that promote environmental protection, there is no recognition of the specific difficulties faced by those unfamiliar with bureaucracy, reflecting some of the social and cultural assumptions imbedded in the Convention. Thirdly, Escazú appears to be less deferential to the interests of private actors than the Aarhus Convention. In his critique of transparency under the Convention, Michael Mason argues that the Aarhus information disclosure provisions are ‘significantly infected and compromised’ and the access to justice provisions as ‘diluted’ in favour of ‘market liberal norms of governance’.70 For example, Article 4(4)(d) and (e) of the Aarhus Convention provides market-focused exceptions to information disclosure that protect commercial secrets and intellectual property. Also, the discretion granted to Contracting Parties in determining a relevant ‘public authority’ has allowed the UK to exempt private water and sewage companies, which may nevertheless provide a public service, from disclosure requirements.71 It is therefore possible to see that the ‘commitment to public empowerment’ in Aarhus is tempered by a deference to commercial interests, which limits the social justice potential of the Convention.72 Escazú meets this challenge in a number of ways. First, there is no special protection of commercial secrets and intellectual property in relation to access to information. In the Escazú Agreement the only valid reasons for failing to supply environmental information relate to risks to the environment, life, health and safety of individuals, national security and crime, a far more limited set of exceptions. This is significant, because it means that commercial interests are not prioritized over environmental needs, as they can be in Aarhus. Further, Article 6(12) of the Escazú Agreement contains a requirement that Parties ‘take the necessary measures through legal or administrative frameworks … to promote access to information in the possession of private entities’.73 No such commitment is included in the Aarhus Convention. Indeed, during the negotiations of the Convention’s 2009–2016 strategic plan, the European Union blocked a proposal by Norway to grant the public access to information held by private actors.74 There is also deep recognition throughout the Agreement of the need to unravel inequalities – through the commitment to actively including indigenous communities, repeat references to those in vulnerable situations and a commitment to ensuring equal conditions. In a region where commercial interests have at times been prioritized over the needs of local and indig69 L. Squintani, ‘The Aarhus Paradox: Time to Speak about Equal Opportunities in Environmental Governance’ (2017) Journal for European Environmental & Planning Law 3, 4. 70 M. Mason, ‘So Far but No Further: Transparency and Disclosure in the Aarhus Convention’ in Gupta and Mason (n 2) 88 and 97. 71 Ibid, 88. 72 Ibid, 87. 73 Escazú Agreement, Art. 6(12). 74 Mason (n 70) 96.

210  Research handbook on transnational environmental law enous communities, these commitments are critical. Finally, the specific protection for environmental human rights defenders acknowledges the horrifying reality that corporate actors in the region can resort to and benefit from human rights abuses in pursing commercial interests, such as mining and logging activities.75 Fourthly, Escazú takes an entirely different approach to the notion of substantive environmental rights to Aarhus. In Article 1, Aarhus carefully constructs a distance between the procedural rights it guarantees and the substantive right to which it aspires. Thus, although procedural rights are deemed to contribute to a substantive right, no such substantive right is guaranteed. By contrast, the Escazú Agreement explicitly recognizes the existence of a substantive right. Article 4(2) states that ‘each Party shall guarantee the right of every person to live in a healthy environment’. This commitment also appears in the preamble and introductory statements. In a region where several states already guarantee progressive environmental rights, the approach of Aarhus to substantive environmental rights would be out of step with the legal and cultural context of the region. For example, both the Dominican Republic and Jamaica incorporate a right to a healthy environment into their constitutions and Bolivia and Ecuador go further by providing constitutional recognition of the rights of Mother Nature/ Pachamama herself.76 Fifthly, Escazú owns its status as a human rights instrument. The human rights slant of the Aarhus Convention is implied by virtue of the fact that it guarantees vertical rights between states and their publics, rather than just horizontally between states as is the usual pattern of environmental agreement, but this status is not expressly acknowledged. In the Preface to the Escazú Agreement, Bárcena claims the status of human rights treaty for Escazú, making explicit the mixed human rights/environmental nature of the Agreement. Going further, the Escazú Agreement also offers specific protection to environmental human rights’ defenders in Article 9. This is significant, because the Agreement recognizes that procedural rights are not enough if the social–political context makes it difficult for those rights to be exercised. That may be because the information is mentally difficult to access and process, or because accessing and acting on information is physically dangerous.77 In these important ways, Escazú demonstrates the necessity of regionally negotiated manifestations of even seemingly universal values. Much of the comparison between these two agreements reads like an eviscerating critique of the Aarhus Convention. In some ways it is. However, it is important to remember that the drafters of the Escazú Agreement had the benefit of 20 years of experience of the Aarhus Convention from which to draw inspiration, as well as to appreciate some of the gaps. Since coming into force, Aarhus has been ‘at the forefront of elaborations on the scope and content of procedural environmental rights’ and these advancements are not to be sniffed at.78 What the advent of the Escazú does, is advance the scope and content of these rights, developing an approach to Principle 10 which is better attuned to the needs and priorities of that region. 75 See for example: N. Lakhani, ‘The Canadian Company Mining Hills of Silver – and the People Dying to Stop It’ (The Guardian 13 July 2017), www​.theguardian​.com/​environment/​2017/​jul/​13/​the​ -canadian​-company​-mining​-hills​-of​-silver​-and​-the​-people​-dying​-to​-stop​-it. 76 Boyd (n 46) 20. 77 Article 19, A Deadly Shade of Green: Threats to Environmental Human Rights Defenders in Latin America (2016), Chapter IV. 78 B. Peters, ‘Unpacking the Diversity of Procedural Environmental Rights: The European Convention on Human Rights and the Aarhus Convention’ (2018) Journal of Environmental Law 1, 5.

Global values, transnational expression: from Aarhus to Escazú  211

5

TRANSNATIONAL EXPRESSION

Underpinning the differences between these two agreements is a broader problem with international environmental law, that is, the failure both in scholarship and practice ‘to appreciate and address the tensions between Northern environmental priorities and Southern needs and aspirations’.79 For example, if environmental problems are treated as purely technical issues to be solved by the hive mind, procedural environmental rights will suffice. However, if environmental problems are also viewed in terms of social justice, procedural rights can lack ‘a compelling moral narrative’.80 Therefore, even seemingly universal values, such as democracy, transparency and participation, can be expressed quite differently in different regional and cultural contexts. Confronting and mediating the gap between Northern and Southern perspectives should be a priority of transnational environmental law. Understanding this fissure requires an appreciation of how context might shape global commitments. Whilst both the Aarhus Convention and the Escazú Agreement were developed to implement Principle 10 of the Rio Declaration – recalling it in their respective preambles, each agreement commits to and embodies the values of democracy, transparency and participation – the mechanics of how these values operate can be quite different. Take, for example, the different approach to substantive environmental rights that each agreement adopts. On one view of democracy, it is necessary that certain substantive goods, such as environmental quality and social equality, be preserved in order to achieve genuine democratic engagement – the Escazú approach,81 whereas on a ‘thin’ view of democracy, all that is needed are procedural rights that directly relate to the machinery of democracy, or the right to vote – the Aarhus approach.82 These two agreements therefore provide a useful lens for looking at how and why global values manifest in different regional contexts, thus demonstrating their disposition for transnational expression. In drawing this chapter to a close, I offer some reflections on these differences, emphasizing the broader political projects each agreement was motivated by as well as the role that their legal cultures and sociopolitical demands play in shaping their expression of these values. A key reason for these differences is that the ulterior project of each agreement is very different. For Aarhus it was to bring former Soviet states into conformity with European political standards.83 For Escazú, it is to establish social justice and sustainable development in the region.84 Similarly, the legal context of each agreement is very different, not just in terms of their respective legal cultures, but also because the legal backdrop to each agreement is very different. When the Aarhus Convention was being drafted, environmental rights were relatively novel concepts and the negotiating states were collectively experimenting with their design and operationalization, whereas in Latin America and the Caribbean, a number of states already had a sophisticated environmental rights framework, through recent constitutional S. Atapattu and C. Gonzalez, ‘The North–South Divide in International Environmental Law: Framing the Issues’ in Alam, Atapattu, Gonzalez and Razzaque (n 17) 12. 80 Ibid, 13. 81 M. Saward, ‘Must Democrats be Environmentalists?’ in B. Doherty and M. de Geus (eds), Democracy and Green Political Thought (Routledge 1996) 95. 82 L. Diamond, The Spirit of Democracy: The Struggle to Build Free Societies throughout the World (Henry Holt and Company 2008) 21. 83 Mason (n 70) 84. 84 Escazú Agreement, Foreword and Preface. 79

212  Research handbook on transnational environmental law protections and jurisprudential developments (in national courts and in the Inter-American Commission and Court on Human Rights).85 Therefore, the starting point for each agreement is quite different. The sociopolitical context also influences the expression of these values and between the two regions a number of crucial differences exist. First, in contrast to Europe where only one indigenous group remains – the Sami people, with an approximate population of 100,00086 – there are around 50 million indigenous people in Latin America and the Caribbean.87 Further, the colonial past of Latin America and the Caribbean entrenched injustices that are yet to be remedied, for example, a lack of legal recognition for indigenous lands.88 Thirdly, near-universal literacy rates in Europe have existed since the 1900s, whereas in Latin America and the Caribbean progress towards universal literacy only started in the second half of the 20th century and low rates still exist in poorer countries, for example, in Haiti only half the population are deemed to be literate.89 Similarly, disparities are evident in terms of levels of extreme poverty – in Europe 0.7%90 of people live in extreme poverty compared to more than 9% in Latin America and the Caribbean.91 Finally, whereas in Europe a concern for environmental and human rights is often applauded,92 Latin America is the most dangerous place in the world to be an environmental human rights’ defender.93 Like the broader political goals and legal cultures of each agreement, these underlying sociopolitical realties are critical to shaping the vision of Principle 10 that each is designed to realize. For the Aarhus Convention, the elaboration of the Principle 10 values is narrowly focused on democracy in a formal sense, establishing the minimum procedural requirements to facilitate public participation in environmental decision making. Motivated by the desire to ensure that the infant democracies emerging in Europe set clear commitments between the newly elected governments and their citizens, such an approach is understandable.94 This is evident in preambular commitments to enhance accountability of public authorities and to improve public awareness. Another influence on how the Convention frames these values is the European commitment to a market liberal society, as private actors continue to be exempt from mandatory information disclosure obligations.95 For Mason, this ‘reflects a structural imbalance

Olmos Giupponi (n 51) 3. Sami in Sweden (Sweden, 22 February 2019), https://​sweden​.se/​society/​sami​-in​-sweden/​. 87 Political Participation by Indigenous Peoples in Latin America Still Low – UN Report (UN News 22 May 2013), https://​news​.un​.org/​en/​story/​2013/​05/​440312​-political​-participation​-indigenous​-peoples​ -latin​-america​-still​-low​-un​-report. 88 Article 19 (n 77) Chapter IV. 89 M. Rosner and E. Orti-Ospina, ‘Literacy’ (Our World in Data, first published in 2013; last revision 20 September 2018), https://​ourworldindata​.org/​literacy. 90 M. Rosner and E. Orti-Ospina, ‘Global Extreme Poverty’ (Our World in Data, first published in 2013, substantive revision 27 March 2017) https://​ourworldindata​.org/​extreme​-poverty. 91 Press release, ‘Poverty in Latin America’ (ECLAC 15 January 2019), www​ .cepal​ .org/​ en/​ pressreleases/​poverty​-latin​-america​-remained​-steady​-2017​-extreme​-poverty​-increased​-highest​-level. 92 Although there are still instances in Europe where environmental defenders are at risk because of their activities, as highlighted in the conclusion of the ‘Key Messages from the Rome Anniversary Event to Celebrate 20 Years of the Aarhus Convention’ (15–16 May 2018, Rome), www​.unece​.org/​fileadmin/​ DAM/​env/​pp/​Rome​_Anniversary​_event/​Rome​_Anniversary​_Event​_Key​-messages​.pdf. 93 Article 19 (n 77) Foreword. 94 Mason (n 70) 87. 95 Ibid, 96. 85 86

Global values, transnational expression: from Aarhus to Escazú  213 … between social welfare and market liberal perspectives’ and thus displaces the potentially more ambitious social goals.96 Whilst I agree with this criticism, the lack of an explicit social justice component to the Convention merely reflects the distinct portrait of Principle 10 values that the Aarhus Convention paints; one where transparency and participation serve to promote democratic architecture rather than social justice landscaping. In contrast, in a region contending with colonial injustices, rising levels of extreme poverty and a poor history of respect for indigenous communities, the service of the Principle 10 values looks quite different. Further, the transition from authoritarianism to democracy, which the Aarhus Convention was partially implemented to oversee, had already happened in Latin America and the Caribbean and so the democratization project is also different to the European one.97 Rather than focusing on just facilitating citizen engagement in a technical sense therefore, the Escazú Agreement makes provision for the social conditions necessary to enable meaningful participation and engagement with environmental information. For example, Articles 4(5), 5(3) and 6(6) all acknowledge the specific needs of those in vulnerable situations and Article 7(14) requires that vulnerable groups are identified and given support to engage with participatory processes. Specific attention is also paid to the needs of indigenous communities – Article 7(9) provides that decisions resulting from an environmental impact assessment should be carried out through appropriate means, which includes ‘customary methods’, and Article 8(4)(d) recognizes the need for materials to be produced in non-official languages. Transparency as envisaged by the Escazú Agreement is not just about making the unseen visible, it is also about making it usable. Therefore, the Principle 10 values are directed towards the broader project of addressing ‘the scourge of inequality and a deep-rooted culture of privilege’.98 The vision of democracy, transparency and participation that Escazú holds is thicker and imbued with an even broader set of values and commitments. The difference between these two agreements demonstrates the expressive potential of Principle 10 and its attendant values. Thus, it shows how contagious global values can find transnational expression – reflecting the sociopolitical, cultural and legal priorities of different regions, whilst allowing them to share in the moral authority of these global norms. It also reveals the naivety of the original drafters of the Aarhus Convention in imagining that they could present a vision of Principle 10 that was universally applicable. Faced with the profound complexities of just environmental decision making in local, national and global contexts, expansive normative ambitions must be balanced with appropriate regional elaborations.

6 CONCLUSION Democracy, transparency and participation are not the only global values of environmental law, nor are they the only values that instruments such as Aarhus and Escazú serve to promote. They are, however, values that are central to the emancipatory focus of environmental law in accommodating the profound practical and ethical complexities of environmental decision making. Public participation recognizes the needs of individuals, transparency can ensure that participation is informed, and democracy suffuses decisions with legitimacy and authority. Ibid, 85. Boyd (n 46) 124. 98 Escazú Agreement, Preface. 96 97

214  Research handbook on transnational environmental law Environmental decisions wrought in the fires of democratic accountability are thus perceived to emerge as just ones. For the purposes of this chapter, I have not addressed the question of whether these values should be given the importance that they have been given. I appreciate that this is a necessary and vexed question. These values can be controversial – for example, transparency is undesirable when information sharing favours corporations rather than the public and poorly designed participation exacerbates inequalities and entrenches privilege.99 But for better or worse, these values do play a fundamental role in global environmental law. Therefore, it is necessary to understand how they emerge in transnational frameworks designed to implement them, thus helping to understand ‘the complex overlaps and interactions of legal norms’.100 In some ways this chapter reads like a tale of lost love. When the Aarhus Convention was first drafted, it was bathed in praise for its impressive elaboration of Principle 10 and its ambitious commitment to environmental democracy.101 Now that the Escazú Agreement is on the scene, with its bolder, less inhibited vision of environmental rights and its unabashed pursuit of social justice, Aarhus can look anodyne. However, the differences between these agreements illustrate the importance of shared values, rather than hard commitments, in shaping transnational environmental law. A prescriptive account of democracy, for example, would eventually stagnate by failing to account for new challenges and realities.102 Transnational expression of global values can breathe new life into how those values operate and dispenses with the fiction that there is a single, best way to do things. It also allows transnational environmental law to better account for the differing needs and priorities of the Global South, something that has historically been overlooked in international environmental law.103 Both the Aarhus Convention and the Escazú Agreement should therefore serve as encouragement to other regions to adopt their own Principle 10 instruments, allowing them to reflect the needs, priorities and ambitions of their region, whilst laying claim to the high moral status of these values.

See scholarship on critical transparency studies: Gupta and Mason (n 2). Affolder (n 14) 198. 101 Foreword, The Aarhus Convention: An Implementation Guide, 2nd edn (n 8). 102 Perhaps the problem that now confronts the United Kingdom and the United States. 103 Atapattu and Gonzalez (n 79) 12. 99

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PART IV NON-STATE ACTORS AS A FOCAL POINT OF TRANSNATIONAL ENVIRONMENTAL LAW

13. The role of subnational actors in transnational climate change law Jolene Lin1

1 INTRODUCTION Climate change has been a key arena for the development of transnational environmental law because it is a global problem with complex local linkages. More so than many other environmental regimes (e.g., those focused on illegal wildlife trade, desertification or the cross-border movement of hazardous waste), there has been a proliferation of activity by provinces, regions, cities and other subnational actors in the climate change space. This chapter therefore examines the role of subnational entities – cities, states, and regions – in developing and implementing transnational climate change law as a case study of the role of subnational actors in transnational environmental law more broadly. The United Nations Framework Convention on Climate Change (UNFCCC)2 played a pivotal role in the early days of global climate regulation and continues to be the main forum for intergovernmental cooperation on climate change. However, since the 2000s, new initiatives and forms of governance have emerged outside the UNFCCC. This is primarily due to the fact that the Kyoto Protocol3 did not impose greenhouse gas (GHG) emissions reduction targets on developing countries and the United States (US) did not ratify the instrument. Therefore, ‘its effect was narrow, thin and in most of the world, ultimately symbolic’.4 As a result, businesses, civil society, international organizations and cities keen to tackle climate change began searching for solutions outside the multilateral treaty regime. This trend started in the early 2000s as global concern about climate change grew and the international negotiations became more gridlocked, leading to a proliferation of governance ‘experiments’ seeking to address climate change.5 In other words, since the 2000s, there has been increasing reliance on ‘bottom-up action’ – facilitated by subnational actors like cities, civil society and corporations – to meet the goals of international climate change law.

I am grateful to Vanessa Yung for research assistance. United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 3 Kyoto Protocol (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162 (KP). 4 R.O. Keohane and D.G. Victor, ‘The Regime Complex for Climate Change’ (2011) 9 Perspectives on Politics 7, 10. 5 It is a well-accepted observation that private authority often emerges when there are gaps in public authority. See, for example, B. Cashore, G. Auld and D. Newsom, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (Yale University Press 2004). On experimentation, see M.J. Hoffmann, Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press 2011). 1 2

216

The role of subnational actors in transnational climate change law  217 The inherently multilevel nature of climate governance was explicitly acknowledged in the Paris Agreement.6 The treaty sets collective emissions reduction goals for all state parties. This includes the ‘long-term temperature goal’7 of keeping global temperature increases ‘to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’.8 It also encompasses parties’ collective aim to reach global peaking of greenhouse gas emissions as soon as possible recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century.9

At the same time, the Paris Agreement acknowledges that collective state action alone will be insufficient to address the global climate change challenge. The preamble to the Agreement points to ‘the importance of the engagements of all levels of government and various actors, in accordance with respective national legislations of Parties, in addressing climate change’.10 Indeed, it can be argued that the model of implementation adopted in the Paris Agreement is one that depends for its effectiveness on domestic efforts of non-state and subnational actors to hold each member state accountable for its ‘bottom-up’ commitment to climate action made through its nationally determined contributions (NDCs) under the Paris Agreement.11 The Paris Agreement contains a transparency framework,12 a requirement to conduct a collective ‘global stocktake’,13 and a facilitative compliance mechanism,14 but no mandate to review the adequacy of a party’s NDC, or whether subsequent NDCs represent a progression from earlier ones.15 As authors such as Robert Falkner highlight, the ‘logic’ of the Paris Agreement is one of ‘domestically driven climate action’, recognizing and formalizing the existing trend of multilevel governance in this field.16 Hale argues that there has been a ‘transnational turn on the road to Paris’ as the post-Paris climate regime ‘sees sub/nonstate actors not as an alternative

Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 7 Ibid, Art. 4.1. 8 Ibid, Art. 2(1)(a). 9 Ibid, Art. 4.1. 10 Ibid, Preamble, recital 15. 11 L. Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’ (2016) 65 International and Comparative Law Quarterly 493, 502, 509–10. 12 Paris Agreement, Art. 13. 13 Ibid, Art. 14. 14 Ibid, Art. 15. Article 15(2) provides that the mechanism ‘shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive’. 15 L. Rajamani and J. Brunnée, ‘The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement: Lessons from the US Disengagement’ (2017) 2 Journal of Environmental Law 537, 549. 16 R. Falkner, ‘The Paris Agreement and the New Logic of International Climate Politics’ (2016) 92 International Affairs 1107, 1118; see also R. Keohane and M. Oppenheimer, ‘Paris: Beyond the Climate Dead End through Pledge and Review?’ (2016) 4 Politics and Governance 142, 143 (arguing ‘the Paris Agreement merely creates an opening for effective action on climate change. Political action by organized groups, domestic and transnational, will be essential to make Paris work’). 6

218  Research handbook on transnational environmental law to the UNFCCC process, or as merely a helpful addition, but as a core element of its logic of spurring rising action on climate over time’.17 In this context, we have witnessed increasingly active involvement of cities and other subnational actors in climate change governance. In 2018, 620 cities and 122 regions reported climate actions to the Carbon Disclosure Project (CDP), a voluntary carbon disclosure platform.18 The Non-State Actor Zone for Climate Action (NAZCA), a UN initiative to track climate action pledges, lists more than 12,500 commitments by 2,500 cities, 209 regions, and over 2000 companies.19 In September 2018, the Global Climate Action Summit convened cities, regions, civil society and business representatives from around the world to discuss their contributions to global climate action.20 One of the aims of the Summit – convened at the behest of the governor of California, Jerry Brown, amongst others – was to motivate national governments to adopt more ambitious climate change targets by highlighting the scale of non-state action.21 A report by Shi-Ling Hsu and colleagues quantifies, for the first time, the combined impact of the recorded and quantifiable GHG mitigation pledges made by nearly 6000 cities, states and regions representing 7% of the global population.22 It is worth nothing that a salient feature of these governance initiatives is their transnational nature. Following Kenneth Abbott’s definition, an institution or regime is transnational when ‘(i) private actors (such as environmental [non-governmental organizations (NGOs)], business enterprises and technical experts) and/or subnational governmental units (cities or provinces, for example) play significant roles in its governance, instead of or in addition to states and/or [intergovernmental organizations]; and (ii) it operates across national borders’.23 Following this introduction, Section 2 explains what is meant by ‘transnational climate change law’ in this chapter. Section 3 examines the role of subnational actors in developing and implementing transnational climate change law with reference to two illustrative examples. The first example is of climate action networks which connect cities across the world in their quest to share best practices and knowledge regarding urban climate action. When cities, through their transnational networks, develop and implement norms, practices and voluntary standards with the aim of steering municipal governments towards climate change mitigation and adaptation, they are in fact making and implementing transnational climate change law. The second example focuses on litigation, which has emerged as an important instrument

T. Hale, ‘“All Hands on Deck”: The Paris Agreement and Nonstate Climate Action’ (2016) 16 Global Environmental Politics 12, 14. Note that in 2010, subnational governments were conferred recognition as ‘governmental stakeholders’ within the UNFCCC regime in the Cancun Agreements; Decision 1/CP.16. See The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention (2010), COP decision 1/CP.16, para. 7. 18 Carbon Disclosure Project; ‘California Leads Subnational Efforts to Curb Climate Change’ The Economist (San Francisco, 15 September 2018), www​.economist​.com/​international/​2018/​09/​15/​ california​-leads​-subnational​-efforts​-to​-curb​-climate​-change. 19 UNFCCC, ‘Global Climate Action’, http://​climateaction​.unfccc​.int/​. 20 See, Global Climate Action Summit (2018), www​.globalclimateactionsummit​.org/​. 21 See, for discussion, V. Arroyo, ‘The Global Climate Action Summit: Increasing Ambition during Turbulent Times’ (2018) 9 Climate Policy 1087. 22 Data Driven Yale, New Climate Institute and PBL Netherlands Environmental Assessment Agency, Global Climate Action from Cities, Regions, and Businesses (Research report of 2018), https://​ datadrivenlab​.org/​wp​-content/​uploads/​2018/​08/​YALE​-NCI​-PBL​_Global​_climate​_action​.pdf. 23 K. Abbott, ‘Strengthening the Transnational Regime Complex for Climate Change’ (2014) 3 Transnational Environmental Law 57, 65. 17

The role of subnational actors in transnational climate change law  219 of transnational climate change governance. In this context, we have seen some subnational governments proactively pursuing litigation to seek progress on climate change action where national governments and businesses are perceived to be taking insufficient action to address the problem. In Section 4, I discuss how the participation of subnational entities in transnational legal processes invites us to re-examine state-centric theories of international lawmaking. Section 5 draws some conclusions about the role of subnational entities, particularly cities, in transnational climate change law and global governance more broadly.

2

WHAT IS TRANSNATIONAL CLIMATE CHANGE LAW?

It has been said that climate change law is the ‘latest branch of the metaphorical environmental legal tree to take shape’.24 In response to the intensifying economic, political and social debates about the impacts of climate change and the urgent need to reduce GHG emissions, a distinctive body of legal principles, case law, international regulation and national legislation has emerged. We can refer to this body of law as ‘climate change law’.25 This chapter expands upon this definition of ‘climate change law’. First, the addition of the transnational dimension will include the lawmaking role of subnational actors (and non-state actors). As Gregory Shaffer and Daniel Bodansky explain, ‘transnational environmental law encompasses all environmental law norms that apply to transboundary activities or that have effects in more than one jurisdiction’.26 This approach collapses traditional distinctions between the national and the international, the public and the private, and state and non-state actors. Elsewhere, I have summarized the project of transnational environmental law as seeking ‘to “move beyond the state” and provide a theoretical framework for a more multi-actor, multi-level and normatively plural system of environmental law and governance’.27 Secondly, I adopt a pluralistic conception of what constitutes law and therefore use the term law in a broad sense.28 It includes statements and guidelines that are not, strictly speaking, part of law but would be considered part of a broader normative or legal process. This chapter therefore situates itself firmly within the tradition that eschews a binary conception of law (i.e., an instrument is either law or it is not) and regards legal normativity as a sliding scale of

24 J. Peel, ‘Climate Change Law: The Emergence of a New Legal Discipline’ (2008) 32 Melbourne University Law Review 922, 923. 25 Ibid. 26 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) 1 Transnational Environmental Law 31, 32. 27 J. Lin, ‘The Emergence of Transnational Environmental Law in the Anthropocene’ in L. Kotze (ed.), Environmental Law and Governance for the Anthropocene (Hart 2017) 331. 28 On legal pluralism, see e.g., P. Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge University Press 2014); B. Rajagopal, ‘The Role of Law in Counter-Hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal of International Law 345; G. Teubner, ‘“Global Bukowina”: Legal Pluralism in the World Society’ in G. Teubner (ed.), Global Law without a State (Dartmouth Publishing Company 1997). For a critique of the lack of continuity between ‘global legal pluralism’ and the older anthropological and socio-legal accounts of legal pluralism, see W. Twining, ‘Normative and Legal Pluralism: A Global Perspective’ (2010) 20 Duke Journal of International and Comparative Law 473.

220  Research handbook on transnational environmental law varying degrees of normativity.29 Within this tradition are the ‘law as process’ school and the New Haven School of international law.30 According to the New Haven School, lawmaking is a broad social phenomenon deeply embedded in the practices and beliefs of a society and shaped by interactions within and amongst societies.31 Adopting these conceptions of international lawmaking, this chapter takes the view that when cities, provinces and other subnational actors construct and implement norms, practices and voluntary standards, they are making and implementing law. The recognition of subnational actors as participants in transnational climate change law invites us to reflect upon theories of international lawmaking that posit the state as the only legally relevant actor in international affairs and to consider more closely our notions of how transnational environmental law emerges and unfolds in practice.

3

TRANSNATIONAL LAWMAKING ACTIVITY BY SUBNATIONAL ENTITIES

While subnational governments proactively address climate change for a range of reasons, including the desire to signal virtue, to meet local constituency demands and to assert influence in global affairs, it is common for them to set an international agenda.32 This often takes the form of engagement in the UNFCCC negotiations process, the establishment of bilateral or multilateral partnerships and participation in transnational networks.33 The practices, policies and strategies taken at the local level bear wider significance and contribute towards transnational climate change governance when cities and other subnational actors seek to scale up their actions and pursue cooperation through cross-border networks. It

For a binary conception of law, see J. Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167. 30 R. Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1995) 2–3; H. Lasswell and M. McDougal, Jurisprudence for a Free Society: Studies in Law, Science and Policy (Martinus Nijhoff 1992) xxi. 31 Levit offers an account of ‘bottom-up international lawmaking’ in which lawmaking ‘is a process whereby practices and behaviors gel as law’ and both public and private actors ‘join with others similarly situated in avocation (although often quite distant in location) to share experiences and standardize practices towards shared goals’; J.K. Levit, ‘Bottom-Up International Lawmaking: Reflections on the New Haven School of International Law’ (2007) 32 Yale Journal of International Law 393, 409. 32 For studies on subnational policies addressing climate change, see for example: E. Royles and N. McEwen ‘Empowered for Action? Capacities and Constraints in Sub-State Government Climate Action in Scotland and Wales’ (2015) 24 Environmental Politics 1034; A. de la Varona and I.B. Hinojal, ‘Sustainable Development Policies in the Basque Country’ in H. Bruyninckx, S. Happaerts and K. van den Brande (eds) Sustainable Development and Subnational Governments (Palgrave Macmillan 2012); V. Broto and H. Bulkeley, ‘A Survey of Urban Climate Change Experiments in 100 Cities’ (2013) 23 Global Environmental Change 92. 33 On participation in UNFCCC process, see G. Rambelli, L. Donat, G. Ahamer and K. Radunsky, ‘An Overview of Regions and Cities within the Global Climate Change Process – A Perspective for the Future’ (European Union 2017), https://​cor​.europa​.eu/​en/​engage/​studies/​Documents/​overview​-LRA​ -global​-climate​-change​-process​.pdf. On partnerships, a good example is the partnership led by Chinese President Xi Jinping and US President Barack Obama under the auspices of the US–China Climate Leaders’ Summit; see J. Ewing and J. Wei, ‘The US and China Go Local on Climate Cooperation’ (The Diplomat, 24 September 2015), https://​thediplomat​.com/​2015/​09/​the​-us​-and​-china​-go​-local​-on​-climate​ -cooperation/​. 29

The role of subnational actors in transnational climate change law  221 is within these networks that one observes the intertwined connections between subnational actors and global organizations, between local practices and transnational norms. It is also through transnational networks that subnational governments develop and implement climate change law. In the following discussion, I refer mostly to transnational networks of cities because they have been more prominent in global climate change politics than networks of regions/states.34 City networks have also, as a result, garnered more academic attention than networks of regions/states.35 3.1

Transnational City Networks

Cities have established networks to achieve aggregate effect, coordinate climate change policies, share best practices, and develop standards such as the Greenhouse Gas Protocol for Cities.36 Such networks, purposefully established by city governments across the world to facilitate cooperation in pursuit of common goals, are referred to as transnational municipal networks (TMNs) in the literature.37 It has been noted that, since the 1990s, there has been a proliferation of TMNs seeking to address environmental problems such as air pollution and biodiversity loss.38 This trend is mostly ascribed to Chapter 28 of Agenda 21, which recognizes the role of local authorities in the promotion of sustainable development and advocates exchange and cooperation between them.39 Kristine Kern and Harriet Bulkeley suggest that a key reason behind the formation of specialized TMNs is that many cities now face similar

The Under2 Coalition is one prominent example, being a network of state and regional governments that are committed to keeping global temperature rises to well below 2 degrees Celsius. It takes pride in having a membership of more than 200 governments who represent over 1.3 billion people and nearly half of the global economy; see the Climate Group, ‘Under2 Coalition’, www​.under2coalition​ .org/​. 35 There is a vast literature on city networks. See, for example, M. Betsill and H. Bulkeley, ‘Transnational Networks and Global Environmental Governance: The Cities for Climate Protection Program’ (2004) 48 International Studies Quarterley 471; Taedong Lee and Chris Koski, ‘Mitigating Global Warming in Global Cities: Comparing Participation and Climate Change Policies of C40 Cities’ (2014) 16 Journal of Comparative Policy Analysis: Research and Practice 475; S. Bouteligier, ‘Inequality in New Global Governance Arrangements: the North–South Divide in Transnational Municipal Networks’ (2013) 26 Innovation: The European Journal of Social Science Research 25l; N. Toly, ‘Transnational Municipal Networks in Climate Politics: From Global Governance to Global Politics’ (2008) 5 Globalizations 341; K. Kern and H. Bulkeley, ‘Cities, Europeanization and Multi-Level Governance: Governing Climate Change through Transnational Municipal Networks’ (2009) 47 Journal of Common Market Studies 309. On networks of states/regions, see for example, S. Happaerts, K. Van den Brande and H. Bruyninckx, ‘Governance for Sustainable Development at the Inter-Subnational Level: The Case of the Network of Regional Governments for Sustainable Development (nrg4SD)’ (2010) 20 Regional & Federal Studies 127; A. Bauer and R. Steurer, ‘Multi-Level Governance of Climate Change Adaptation through Regional Partnerships in Canada and England’ (2014) 51 Geoforum 121. 36 Bouteligier points out that such networks allow for the conceptualization of cities, traditionally linked to local policies, as actors in global governance; Bouteligier (n 35) 252. 37 K. Kern and H. Bulkeley, ‘Cities, Europeanization and Multi-Level Governance: Governing Climate Change through Transnational Municipal Networks’ (2009) 47 Journal of Common Market Studies 309. 38 Bouteligier (n 35) 251. 39 Agenda 21: Programme of Action for Sustainable Development, UN GAOR, 46th Sess., Agenda Item 21, UN Doc. A/Conf.151/26 (1992). 34

222  Research handbook on transnational environmental law problems and look towards creating institutions to facilitate transnational policy learning and develop new governance approaches.40 One of the largest networks that is working to promote environmental and social sustainability at the subnational level is ICLEI– Local Governments for Sustainability (ICLEI).41 ICLEI has been a leading advocate for greater recognition of the role of subnational governments in the international climate change regime.42 The network has observer status at the UNFCCC and has been leading the Local Government Climate Roadmap, an advocacy process that started in 2007 and mirrors the Bali Road Map which laid down the international agenda for states to determine the post-2012 framework on climate change.43 Another prominent network is C40. Created in 2005, C40 has gained recognition as the leading network of global cities addressing climate change.44 C40 positions itself as a gathering of the top echelon of the world’s major cities to exchange knowledge, diffuse best practices and generate ideas for collaboration. C40 also has extensive partnerships with multinational corporations like Siemens, NGOs such as the World Resource Institute, and international financial institutions (e.g., the World Bank).45 An important ‘mega network’ is the Global Covenant of Mayors for Climate and Energy, a merger between the UN-supported Compact of Mayors and the EU-based Covenant of Mayors.46 The Global Covenant places particular emphasis on using a harmonized standard for reporting climate data and using data analytics to help cities undertake ambitious climate action. This emphasis on measurement, reporting and verification (MRV), it can be argued, reinforces the transparency-driven governance approach that lies at the heart of the Paris Agreement regime. Accordingly, the norms governing climate action at the subnational level reinforce those governing international climate action – this results in coherence rather than Kern and Bulkeley (n 376) 316. ICLEI, ‘ICLEI – Global Cities Network’, http://​kcc​.iclei​.org/​. Its membership in 2018 included 12 mega-cities, 100 super-cities, 450 large cities and 450 small and mid-sized cities in 86 countries. 42 ICLEI, ‘Local Government Climate Roadmap’, http://​old​.iclei​.org/​climate​-roadmap/​home​.html. 43 ICLEI is the only local government network with observer status at all three ‘Rio Conventions’ – the UNFCCC, the UN Convention to Combat Desertification (UNCCD), and the Convention on Biological Diversity (CBD). 44 C40 enjoys significant coverage by highly respected global media outlets; see, for example, ‘Greening the Concrete Jungle’ (The Economist, Chicago, 3 September 2011), www​.economist​.com/​ united​-states/​2011/​09/​03/​greening​-the​-concrete​-jungle; R. Vollgraaff and J. Kew, ‘Cities Almost Double Climate Actions over 2 Years, C40 Says’ (Bloomberg, 5 February 2014), www​ .bloomberg​ .com/​ news/​2014​-02​-05/​cities​-almost​-double​-climate​-actions​-over​-two​-years​-c40​-says​.html; A. Kemper and R. Martin, ‘Cities Are Businesses’ Best Allies in the Battle against Climate Change’ (The Guardian, 14 October 2014), www​.theguardian​.com/​sustainable​-business/​2014/​oct/​14/​cities​-businesses​-best​-allies​ -battle​-against​-climate​-change. Further, C40 has been put forward as part of a ‘Coalition of the Working between countries, companies and cities’ to inject energy into the repeatedly stalled multilateral efforts and prompt practical action in the highly influential and authoritative report of the Oxford Martin Commission for Future Generations, see ‘Now for the Long Term – The Report of the Oxford Martin Commission for Future Generations’ (Oxford Martin School, October 2013), www​.oxfordmartin​.ox​.ac​ .uk/​downloads/​commission/​Oxford​_Martin​_Now​_for​_the​_Long​_Term​.pdf. 45 C40, ‘Our Partners and Funders’, www​.c40​.org/​partners. 46 The Covenant of Mayors was launched in 2008 in Europe by mayors and city officials pledging to reduce local GHG emissions, build resilience and to track their progress transparently. For analysis of this network, see V. Heyvaert, ‘What’s in a Name? The Covenant of Mayors as Transnational Environmental Regulation’ (2013) 22 Review of European, Comparative and International Environmental Law 78. The Compact of Mayors was launched in September 2014 by UN Secretary-General Ban Ki-moon and his Special Envoy for Cities and Climate Change, Michael Bloomberg. 40 41

The role of subnational actors in transnational climate change law  223 fragmentation and conflict, which is a concern for transnational climate change governance because it is a space that is densely populated with many institutions and actors that perform potentially overlapping functions.47 It is noteworthy that municipal climate data plays a particularly important role in the ongoing standardization of transnational climate action by subnational actors.48 Gesing’s research sheds light on the underlying conflict between the Compact of Mayors and the Covenant of Mayors on the role of municipal emissions data.49 The Compact of Mayors’ focus on producing comparable data was met with concern by the Covenant of Mayors over the potential commodification of public data for private consumption.50 The Covenant of Mayors has a different mode of governance based on democratic legitimization, service to the public and adherence to a common set of targets to achieve climate justice.51 Gesing’s insightful study highlights the increasing reordering of the public and the private in transnational climate change governance, which raises questions of legitimacy and accountability. Through their participation in networks like ICLEI and C40, cities develop and internalize certain norms, defined as rules that set ‘a standard of appropriate behaviour for actors with a given identity’,52 and are imbued with a quality of ‘oughtness’ that sets them apart from other kinds of rules.53 These norms include, first, that climate change is a global problem but can and must be addressed locally by cities. Secondly, large, global cities are not only a source of the problem because of their high levels of GHG emissions but also a source of solutions.54 Cities and other subnational actors are portrayed as more nimble policy actors than states while also being more responsive and adaptive to local circumstances and needs. Based on this normative foundation, cities have cooperated with other actors including private consultancies, civil society and national governments to develop practices and voluntary standards to enable subnational actors to reduce their GHG emissions in the short term and make the transition towards low-carbon development in the longer term.

47 J. Lin, Governing Climate Change: Global Cities and Transnational Lawmaking (Cambridge University Press 2018) 162–6. 48 H. Bulkeley, ‘Can Cities Realise their Climate Potential? Reflections on COP21 Paris and Beyond’ (2015) 20 Local Environment: The International Journal of Justice and Sustainability 1405. 49 F. Gesing, ‘Transnational Municipal Climate Networks and the Politics of Standardisation: The Contested Role of Climate Data in the New Global Covenant of Mayors for Climate and Energy’ (2018) 6 Politics and Governance 126. 50 Ibid, 130. 51 Ibid, 131. 52 M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887, 891. 53 What is ‘appropriate’ is determined by a community or a society, which raises the question of how many actors must share in the collective assessment of a rule before it can be called a ‘norm’; M. Finnemore and K. Sikkink suggest that, based on empirical studies, we can expect a norm to reach tipping point when at least one-third of the total states in the system adopt the norm. Further, which states adopt the norm is an important factor. ‘Critical states’ are those whose non-adoption will compromise the achievement of the substantive norm; ibid, 901. 54 This sentiment is reflected in remarks by Anne Hidalgo, the mayor of Paris, in an interview with the Financial Times: ‘[cities] are more practical; we have the capacity to act faster and the decisions are closer to reality. We can mobilize all actors, public and private … [which is] more complicated for the state’; M. Stothard, ‘Mayors Call for More Powers to Fight Climate Change’ (Financial Times, Paris, 5 December 2015); see also, B. Barber, If Mayors Ruled the World (Yale University Press 2014).

224  Research handbook on transnational environmental law Apart from being a network, the Compact of Mayors can also be conceptualized as a voluntary standard that has been developed and implemented by subnational actors. In order to demonstrate compliance with the Compact of Mayors, a city has to fulfil a series of steps that culminate in the public reporting of its GHG inventory, climate risks, and an action plan that provides details on how the city plans to achieve its GHG reduction target and improve its climate resilience. Regular updating of its GHG inventory, monitoring and reporting are compliance requirements. The Compact of Mayors uses the Global Protocol for Community-Scale Greenhouse Gas Emission Inventories (GPC) as a reporting tool. Elsewhere, I have argued that the GPC is a compliance tool that advances the normative goals of urban climate law, i.e., cities ought to pursue ambitious climate action because they are a major source of GHG emissions and ambitious action ought to be undergirded by monitoring, reporting and verification.55 I further suggested that the pathways by which voluntary standards influence the behaviour of actors may be varied and context-dependent, but two pathways are of particular salience when it comes to the reduction of GHG emissions and pursuit of low-carbon development by cities: the promotion of reflexivity amongst city officials and mayors, and norm diffusion.56 Like all voluntary schemes, the Compact of Mayors does not have any powers to force a city to comply except to withhold certification when a city does not meet the compliance requirements. It relies on reputational pressure and the perceived benefits of climate information disclosure to motivate cities to participate. 3.2

Subnational Actors and Climate Litigation

There has been a global growth in the number of lawsuits addressing issues of climate change in the last decade, particularly in the lead-up to, and following, the Paris Agreement negotiations.57 Although the US remains a ‘mega-jurisdiction’ globally with more than 800 claims,58 outside the US there have now been over 270 climate cases brought in 25 jurisdictions.59 This global expansion in climate litigation gives substance to claims of a transnational climate justice movement that casts courts as important actors in shaping multilevel climate

Lin (n 47) 137. Ibid, 138–50. 57 M. Nachmany, S. Fankhauser, J. Setzer and A. Averchenkova, ‘Global Trends in Climate Change Legislation and Litigation: 2017 Update’ (Grantham Research Institute on Climate Change and the Environment, 9 May 2017), www​.lse​.ac​.uk/​GranthamInstitute/​publication/​global​-trends​-in​-climate​ -change​-legislation​-and​-litigation​-2017​-update/​, 13: Figure 6 shows the number of litigation cases in 25 jurisdictions from 1994–2016; UN Environment and Sabin Center for Climate Change Law, ‘The Status of Climate Change Litigation – A Global Review’ (2017), http://​columbiaclimatelaw​.com/​files/​2017/​05/​ Burger​-Gundlach​-2017​-05​-UN​-Envt​-CC​-Litigation​.pdf. 58 For a comprehensive listing and categorization of these claims, see Sabin Center for Climate Change Law and Arnold & Porter, ‘US Climate Change Litigation’, http://​climatecasechart​.com/​us​ -climate​-change​-litigation/​. 59 These cases are tracked on a database, which is a joint initiative of the LSE Grantham Research Institute on Climate Change and the Environment and the Sabin Center for Climate Change Law, Columbia Law School. See, Grantham Research Institute on Climate Change and the Environment and Sabin Center for Climate Change Law, ‘Climate Change Laws of the World’, www​.lse​.ac​.uk/​ GranthamInstitute/​climate​-change​-laws​-of​-the​-world/​. 55 56

The role of subnational actors in transnational climate change law  225 governance.60 It is worth noting that in the broader area of transnational environmental law, practitioners and academics alike have not framed litigation in specific issue areas as, for example, ‘transnational marine biodiversity litigation’. There simply has not been the same quantum and scale of litigation in these areas compared to climate change. Climate litigation has emerged largely to play a gap-filling function as national policies and corporate actions are deemed insufficient to deal with climate change. Nonetheless, lessons can be drawn from climate litigation and applied to other areas of transnational environmental law. For example, recent scholarship on transnational climate litigation has advocated a broader view of climate litigation that moves away from a preoccupation with high-profile mitigation-focused cases and encompasses cases at lower levels of governance as well as cases in which climate change concerns are embedded in wider disputes over human and constitutional rights, natural resource conservation and disaster management.61 In other areas of transnational environmental law, the adoption of a similarly broad perspective of litigation from the outset can influence thinking and the development of more creative litigation strategies. Osofsky argues that subnational tribunals become participants in transnational climate governance processes when they serve as forums in which disputes concerning climate change mitigation and adaptation can take place, as well as exert indirect influence over the regulatory landscape.62 Local decisions can supplement and shape climate change regulation at the national and international levels through the case law’s broader effects on governmental decision making, the behaviour of corporations, and public understanding of the problem of climate change.63 Cities, regions and states have also been actively involved in climate litigation from the outset. In the US, cities and states have used litigation to exert pressure on the federal government to fill regulatory gaps. For example, the groundbreaking decision of Massachusetts v Environmental Protection Agency, decided by the US Supreme Court, sought to have the Environmental Protection Agency implement a mandate under the Clean Air Act to regulate GHGs as an air pollutant.64 In another example, amongst the earliest US cases was City of Los Angeles v National Highway Transportation Safety Administration, decided by the D.C. Circuit Court of Appeals in 1990.65 That litigation involved a challenge by cities, states and environmental groups to the failure of the National Highway Transportation Safety Administration to prepare an environmental impact statement under the National

See generally, W. Burns and H. Osofsky, ‘Overview: The Exigencies that Drive Potential Causes of Action for Climate Change’ in W. Burns and H. Osofsky (eds) Adjudicating Climate Change: State, National and International Approaches (Cambridge University Press 2009); H. Osofsky, ‘The Continuing Importance of Climate Change Litigation’ (2010) 1 Climate Law 3; J. Lin, ‘Climate Change and the Courts’ (2012) 32 Legal Studies 35; J. Peel, L. Godden and R. Keenan, ‘Climate Change Law in an Era of Multi-Level Governance’ (2012) 1 Transnational Environmental Law 245; H. Osofsky and J. Peel, ‘The Role of Litigation in Multilevel Climate Change Governance: Possibilities for a Lower Carbon Future?’ (2013) 30 Environmental and Planning Law Journal 303. See also G. Ganguly, ‘Judicial transnationalisation’, Chapter 18 in this book. 61 K. Bouwer, ‘The Unsexy Future of Climate Change Litigation’ (2018) 30 Journal of Environmental Law 483; J. Peel and J. Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113(4) American Journal of International Law 679. 62 H. Osofsky, ‘The Continuing Importance of Climate Change Litigation’ (2010) 1 Climate Law 3, 27. 63 Ibid, 5. 64 (2007) 549 U.S. 497. 65 City of Los Angeles v Nat’l Highway Traffic Safety Admin., 912 F.2d 478, 481 (D.C. Cir. 1990). 60

226  Research handbook on transnational environmental law Environmental Policy Act in order to consider the adverse climatic effects of lowering fuel economy standards for motor vehicles. This case – although unsuccessful before the D.C. Circuit – served as a prototype for the vast majority of subsequent US climate change cases.66 Outside the US, European capital cities have recently successfully challenged the validity of a regulation which sets emission limits (for oxides and nitrogen oxide) for new vehicles in the European General Court. Paris, Brussels and Madrid filed lawsuits against the European Commission, arguing that it was not permitted to adopt emission values that were lower than those set by the applicable Euro 6 standard. It is noteworthy that the Court rejected the Commission’s argument that the cities lacked standing, ruling that an action for annulment of a regulatory act brought by a person other than a member state or a European Union institution is admissible if the act is of direct concern to the person bringing the action.67 From a transnational environmental law perspective, this case has interesting multiscalar dimensions – a coalition of capital cities bypassing their national governments to put legal pressure on the Commission (a supranational institution) to invalidate what is perceived to be a pro-industry regulation that does not adequately protect public health.68

4

REFLECTING ON THEORIES OF INTERNATIONAL LAWMAKING

The discussion so far has demonstrated that subnational actors are involved in transnational climate change lawmaking, whether it is through the development and implementation of private standards or climate change litigation. The lawmaking role of subnational actors raises some interesting questions for international law and international relations more broadly. This section will briefly set out some reflections which are intended to inspire more thinking about cities and other subnational actors in the discipline of international law, which has had strictly

The Sabin Center US Climate Change Case Chart confirms the continuation of this pattern with over one-third of the US cases in the database concerning challenges under federal or state environmental impact assessment laws; U.S. Climate Change Litigation, http://​climatecasechart​.com/​us​-climate​-change​ -litigation/​. 67 Judgment of the General Court (Ninth Chamber, Extended Composition) of 13 December 2018 (T-339/16 Ville de Paris v Commission, T-352/16 Ville de Bruxelles v Commission, T-391/16 Ville de Madrid v Commission) ECLI:​EU:​T:​2018:​927. 68 On the surface, this case does not count as climate litigation because climate-specific arguments were not raised. However, I argue that this case is an example of climate litigation where climate change is ‘at the periphery’ and not the ‘core’ issue (adopting Peel and Osofsky’s conceptualization in their work, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015). In this case, climate change is observed to be at the periphery when one peruses the press releases by C40, for example, see C40, ‘Paris, Brussels and Madrid Challenge European Commission in Court over “Licence to Pollute” Vehicle Emissions Regulations’, Press Release, 15 May 2018, online: www​ .c40​.org/​press​_releases/​paris​-brussels​-madrid​-challenge​-european​-commission​-in​-court​-over​-licence​ -to​-pollute​-vehicle​-emissions​-regulations. Climate change is also at the periphery because there are important climate change mitigation co-benefits when air pollution is reduced: UN Environment, ‘Air Pollution and Climate Change: Two Sides of the Same Coin’, online: www​.unenvironment​.org/​news​-and​ -stories/​story/​air​-pollution​-and​-climate​-change​-two​-sides​-same​-coin. 66

The role of subnational actors in transnational climate change law  227 limited engagement with the lively, multidisciplinary debate concerning the growing prominence of subnational actors in international affairs.69 In line with the general tenet of this book, this chapter has sought to move beyond the focus of the international legal system upon states as the primary subjects. In adopting the New Haven School’s approach to international law as its starting point, the argument about whether subnational actors are recognized as a class of actors in international law, and how recognition ought to be conferred, has been foreclosed.70 Broadly speaking, it is arguable that questions such as whether the transnational governance activities of subnational actors challenge our perspectives on actors and subjects of international law and whether they call into question the traditional distinction between law and non-law are meaningful ones to ask. This is because the answers to these questions ultimately boil down to the jurisprudential view of the international legal order that each of us holds. Depending on one’s jurisprudential leanings, the state is the only significant actor on the international stage or it is one of many actors (albeit a very important one), or it is simply one of many participants with the resources and power to engage in international affairs.71 Thus, this chapter suggests that the study of subnational actors and their normative activities reinforces the idea that international law no longer refers solely or even primarily to the law that governs the rights and obligations of states in co-existence and that there are various theoretical conceptions of the international/transnational/global legal order. International legal scholarship is enriched by the recognition of these various schools of thought and by a move away from state-centric versions of international lawmaking, which hinder the crafting of creative solutions to our global environmental problems such as climate change. By creative solutions, I mean solutions that recognize the importance of multilevel

See, for example, M. Acuto, ‘City Leadership in Global Governance’ (2013) 19 Global Governance 481; A. Amin and N. Thrift, ‘Citizens of the World: Seeing the City as a Site of International Influence’ (2005) 27 Harvard International Review 14; K. Calder and M. de Freytas, ‘Global Political Cities as Actors in Twenty-First Century International Affairs’ (2009) 29 SAIS Review of International Affairs 7; D. Koon-hong Chan, ‘City Diplomacy and “Glocal” Governance: Revitalizing Cosmopolitan Democracy’ (2016) 29 Innovation: The European Journal of Social Science Research; I. Daalder, ‘A New Global Order of Cities’ (Financial Times, 26 May 2015); E. Fry, ‘State and Local Governments in the International Arena’ (1990) 509 The Annals of the American Academy of Political and Social Science 118; A. Kuznetsov, Theory and Practice of Paradiplomacy: Subnational Governments in International Affairs (Routledge 2014); H. Michelmann and P. Soldatos (eds), Federalism and International Relations: The Role of Subnational Units (Oxford University Press 1990); H. Rioux Quimet, ‘From Sub-State Nationalism to Subnational Competition States: The Development and Institutionalization of Commercial Paradiplomacy in Scotland and Quebec’ (2015) 25 Regional & Federal Studies 109. 70 One can also question if formal recognition really matters. Aust, for example, argues, ‘the more cities become accepted as partners in global governance, the less relevant will their informal status (as opposed to states and international organizations) be in the long run’. What matters is that there is growing acceptance of cities by international actors and audiences, and Aust suggests that this is just beginning to happen for networks like C40. Finally, he concludes that cities constitute an emerging ‘new class of actors in international law’ even though it is difficult to ‘pin [this] down in positivist/formalist terms’: H.P. Aust, ‘Shining Cities on the Hill? The Global City, Climate Change, and International Law’ (2015) 26 European Journal of International Law 255, 273–5. 71 For discussion of how different perspectives on international law might shape the narrative of the international legal significance of subnational efforts at addressing climate change, see H. Osofsky, ‘Multiscalar Governance and Climate Change: Reflections on the Role of States and Cities at Copenhagen’ (2010) 25 Maryland Journal of International Law 64, 75–9. 69

228  Research handbook on transnational environmental law governance and which enlist the participation of multiple governance actors – including cities, regions and provinces – to tackle global environmental challenges more effectively. The emergence of subnational actors in global governance may be viewed as a threat to the state in the sense that the rising importance of subnational actors erodes the unitary nature of the state. This chapter has sought to demonstrate that, instead of eroding the state’s unitary nature, the rise of subnational actors in transnational climate change governance informs us about the changing nature of the state and its ability to take on different structural forms on different occasions and for different purposes. In short, the rise of subnational actors provides fodder for the debate on the nature of the modern state and we ought to contest the simplistic notion that the rise of subnational actors threatens the integrity of the state as a unitary entity. I would argue that the state is far from being a unitary entity at all times, and the recognition of its mutable nature creates interesting possibilities for transnational environmental governance arrangements. Finally, the rise of subnational actors can be viewed as an example of the disaggregation of the state. As Slaughter has famously argued, this is a contemporary reality as the state ‘disaggregates’ into its components which then seek to create networks with their counterparts abroad (for example, transnational networks of antitrust regulators, money-laundering regulators, and parliamentarians to name a few) to solve global public policy challenges.72 The ability of the state to disaggregate and reconfigure to address different governance challenges, I would suggest, is a source of flexibility and resilience rather than a sign of weakness and fragmentation. This flexibility not only benefits the state but the international system as a whole because global governance has become increasingly complex and the one-size-fits-all solution offered by traditional treaty-based regulation by international organizations is no longer adequate. The challenge for international law is finding ways to maintain accountability, fairness and legitimacy in the international community as transnational lawmaking and implementation processes become more informal and inclusive of various participants.

5 CONCLUSION This chapter has provided an overview of how subnational actors are playing a role in transnational climate change governance, looking specifically at their lawmaking role. The chapter focused on two broad examples to illustrate this phenomenon. The first was that of cities developing and implementing norms, standards and practices through transnational networks. In the process, cities are transforming the way they organize their space and economies to achieve the goals of the Paris Agreement. The second example is climate change litigation. Finally, the chapter reflects upon the significance of the rise of subnational actors for international environmental law. The main tenet of this chapter has been to highlight the role that subnational actors are playing in the global effort to address the world’s most pressing problem. Tackling climate change requires an ‘all hands on deck’ approach and this chapter has argued that subnational actors have an important and unique contribution to make.

A.-M. Slaughter, A New World Order (Princeton University Press 2005).

72

14. The responsibilities of corporations: new directions in environmental litigation Lisa Benjamin

1 INTRODUCTION Existing environmental threats and harms such as biodiversity depletion and climate change are urgent, complex, transboundary, systemic and at crisis point.1 They are also largely a consequence of existing industrial and economic systems,2 in which transnational corporations play a large role. While global problems should ideally be addressed by universally endorsed international law, it is at the global level that law is most contested, and this dynamic has led to the rapid growth of transnational law and regulation, or law and regulation ‘beyond the state’.3 Transnational governance and regulatory approaches are in a sense a reaction to the inability of international law to address these systemic environmental crises. While not an ideal or complete response, these approaches can provide alternative opportunities to engage a variety of non-state actors, including transnational corporations.4 The structural power of transnational corporations (TNCs), combined with the extensive reach of their operations, make them powerful actors in the transnational sphere, including in transnational environmental governance. Transnational corporations have become key actors in regulatory systems.5 Some of the largest transnational corporations have become influential economic and political players on both domestic and international fronts.6 This influence has allowed them to shape the rules of the game, and either move or keep parts of their operations beyond the reach of domestic or international legal orders, leading to a turn to ‘soft law’ instruments.7 These instruments are not always effective in ensuring environmental protection IPBES, ‘Global Assessment Report on Biodiversity and Ecosystem Services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services’ (2019) E.S. Brondizio, J. Settle, S. Diaz and H.T. Ngo (eds), www​.ipbes​.net/​global​-assessment​-report​-biodiversity​ -ecosystem​-services; IPCC, ‘1.5°C Special Report – Summary for Policymakers’ (Cambridge University Press 2018), www​.ipcc​.ch/​sr15/​. 2 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) 1 Transnational Environmental Law 1. 3 Ibid, 3. 4 The term transnational corporation (TNC) is a term used by the United Nations (UN) from the UN Economic and Social Council’s establishment of the UN Commission on Transnational Corporations in 1974. The term is often used interchangeably with multinational corporations (or MNCs) or multinational enterprises (MNEs) which are terms favoured by the United States and organizations such as the Organisation for Economic Co-operation and Development. These terms will be used interchangeably here. 5 S.B. Banerjee, ‘Transnational Power and Transnational Governance: The Politics of Corporate Responsibility’ (2018) 71 Human Relations 796, 804. 6 H. Kalimo and T. Staal, ‘Softness in International Instruments: The Case of Transnational Corporations’ (2015) 42 Syracuse Journal of International Law & Commerce 363, 370. 7 Ibid. 1

229

230  Research handbook on transnational environmental law from harms, leading to gaps in transnational regulatory initiatives in regard to these entities. As a result, the rights and responsibilities of corprorations are often vague, contested and without punitive consequences. Partly as a result of existing gaps, litigation against transnational corporations has increased. Litigation in the climate change arena in particular has become a very dynamic field in recent years. Litigation can open up avenues for the introduction of functional equivalents to good governance expectations, including human rights-based responsibilities against TNCs such as fossil fuel intensive, or carbon major, corporations. Litigation also exposes gaps in the existing transnational governance structure. The multinational character of these entities makes them both vulnerable to litigation in progressive jurisdictions around the world, but also more able to defend against liability through the corporate group structure. This chapter will use climate change, human rights and climate litigation as a case study to examine the gaps and opportunities in the transnational environmental governance field for TNCs. The inquiry by the Commission on Human Rights of the Philippines (CHR) against 47 carbon majors is taken as an analytical point of departure as it has taken a unique and quasi-litigation approach to addressing climate harms and their relationship to transnational corporations.8 The inquiry is remarkably transnational in its scope as well as its process. It investigates damage experienced by Filipino citizens allegedly caused by carbon major corporations headquartered in various jurisdictions. Framed as a dialogue, the inquiry attempts to create a global picture of the climate vulnerable. The CHR has held hearings in a number of jurisdictions around the world, thereby heightening its global presence and, with it, highlighting the scientifically established responsibilities of carbon majors and calling attention to the global governance gap in attributing legal responsibilities to them. The investigation has a quasi-litigation character and as a result displays a number of novel and unique features. Unlike mainstream litigation efforts, it does not attempt to pin legal liability for damage on the carbon majors. Instead, it serves as an expository exercise to highlight the damaging role these entities continue to play in the context of climate change. The investigation is also unique in that it is situated in a developing country which was devastated by Super Typhoon Yolanda, and therefore real world experience of the devastating impacts of climate change in the Global South are highlighted by the Commission’s work. This quasi-litigation approach avoids legal causation hurdles experienced in other litigation against transnational corporations but, by doing so, also raises difficulties as burdens of proof and jurisdictional positions are not resolved with the same type of precision and accuracy as might occur in formal litigation approaches. While it is not an ideal response, the investigation suggests an alternative pathway which could lead to domestic regulatory results if the Philippines government accepts its recommendations, and possibly new transnational regulatory pathways if the recommendations are adopted in other jurisdictions. The investigation highlights the ever-expanding and creative tools and regulatory devices being developed in the transnational sphere in order to respond to increasingly urgent transnational environmental issues. Section 2 of this chapter discusses the central role of transnational corporations in driving environmental and human rights impacts, with a focus on the Global South. Section 3 assesses the role of transnational governance regimes, with a focus on a selection of existing transnational governance frameworks and initiatives in the context of TNCs operating in the extractive industry, exploring some key gaps, limitations and opportunities, with a focus on 8 S. Seck, ‘Revisiting Transnational Corporations and Extractive Industries: Climate Justice, Feminism and State Sovereignty’ (2017) 26 Transnational Law & Contemporary Problems 384, 399.

The responsibilities of corporations  231 the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms) and the United Nations Guiding Principles on Business and Human Rights (UNGPs). Section 4 reviews the role of litigation in the context of transnational corporations and existing global governance gaps, highlighting the trend of litigation against carbon major corporations. It focuses on the unique and quasi-litigation approach of the Philippines Human Rights Commission as an analytical point of departure to assess how and to what extent it can provide functional equivalents to the existing rights and responsibilities of TNCs, how it attempts to fill existing gaps in transnational governance by focusing on the climate vulnerable, and what that teaches us about existing transnational environmental governance efforts.

2

TRANSNATIONAL CORPORATIONS AND ENVIRONMENTAL AND HUMAN RIGHTS HARMS

Transnational corporations, particularly those involved in the extractive industry, have a long and contentious history in the context of environmental harms and violation of human rights, particularly in the Global South. Environmental damage in the Global South is often a cumulative result of resource exploitation by Global North countries, some Global South countries such as China, and TNCs.9 The environment and human rights nexus in the Global South is closely connected with core issues of equity, survival, peace and security, human capital development and deficient governance practices.10 Negative environmental and human rights impacts are often exacerbated by capacity constraints as well as by Global South governments’ pursuit of foreign direct investment for economic development. National regulatory capacities to implement and protect human rights violations vary tremendously among states in the Global South, as do the levels of equality of citizens in these states. These dynamics are enhanced in the context of the extractive industries, with investments in resource-rich developing countries often being dubbed a ‘resource curse’, since the benefits of such investments rarely reach those most in need.11 Concerns regarding the negative impact of corporate activities on the environment and also on human rights grew in the 1970s, particularly with the rise of transnational corporations’ operations in developing countries.12 This trend continued in the 1990s with regard to corporate activities which impacted labour issues such as the employment and exploitation of children and intimidation of union leaders, environmental pollution and also indirect corporate

9 L. Kotzé, ‘Human Rights and the Environment and the Global South’ in R. Abate (ed.), Climate Justice Case Studies in Global and Regional Governance Challenges (ELI 2016) 179. 10 Ibid. 11 J. Sachs and A. Warner, ‘Natural Resource Abundance and Economic Growth’ (1995) NBER Working Paper No. 5398. The terms ‘developing countries’ and ‘Global South’ originated in different periods and have been contested in terms of their appropriateness. Today, the term ‘Global South’ (and its counterpart ‘Global North’) are the favoured option of scholars and policymakers, see S.H. Chant and C. McIlwaine, Geographies of Development in the 21st Century: An Introduction to the Global South (Edward Elgar 2008) 6 and 11, although the term developing country is still used in United Nations’ documents and negotiations. As a result, both terms are used in this chapter. 12 G. Mantilla, ‘Emerging International Human Rights Norms for Transnational Corporations’ (2009) 15 Global Governance 279, 279.

232  Research handbook on transnational environmental law participation in human rights abuses carried out by governments.13 The concerns were fuelled by human rights abuses, such as the execution of Ken Sara Wiwo in Nigeria, where Shell had significant operations, the activities of the Occidental Petroleum Corporation in Columbia, and ExxonMobil’s activities in Indonesia.14 Environmental concerns and conflicts remain today. The Environmental Justice Atlas lists a total of 2815 ongoing conflicts over social and environmental projects such as mining, forestry, dams, transportation, fracking, drilling, exploration, waste management, ore processing and other industrial activities.15 Some of the corporations involved in these conflicts are members of the very transnational governance initiatives discussed in this chapter. Deaths of environmental defenders around the globe are on the rise, with incidents being particular acute in countries in the Global South.16 These dynamics are further compounded in the case of climate change, as transnational corporations contribute vast amounts of greenhouse gases (GHGs) with very few regulatory responsibilities being imposed by transnational governance initiatives. 2.1

Human Rights and Climate Change

The relationship between climate change and human rights is becoming an increasingly urgent area of concern. A recent Human Rights Council report by the Special Rapporteur on extreme poverty and human rights states that climate change will have devastating consequences for people in poverty, threatening the future of human rights, and potentially undoing the last 50 years of progress in development, global health, and poverty reduction.17 The UN has determined that climate change can potentially violate a number of existing human rights, such as the right to life, adequate food, attainment of the highest standards of physical and mental health, adequate housing, self-determination, safe drinking water and sanitation, and the right to development.18 Human rights can help build a compelling climate justice narrative that enhances political will for greater ambition in climate policy formation.19 As Savaresi and others note, human rights can serve as a gap filler to provide remedies where other areas

Ibid, 283; M. Murphy and J. Vives, ‘Perceptions of Justice and the Human Rights to Protect, Respect, and Remedy Framework’ (2013) 116 Journal of Business Ethics 781, 781–2. 14 Murphy and Vives (n 13). 15 See https://​ejatlas​.org. 16 See www​.globalwitness​.org/​en​-gb/​about​-us. 17 Human Rights Council, ‘Report of the Special Rapporteur on extreme poverty and human rights’ A/HRC/41/39 (24 June–12 July 2019). 18 Human Rights Council Resolution, A/HRC/29/25 (30 June 2015); Office of the United Nations High Commissioner for Human Rights, ‘The Effects of Climate Change on the Enjoyment of Human Rights’ (30 April 2015). 19 E. Cameron and M. Limon, ‘Restoring the Climate by Realizing Rights: The Role of the International Human Rights System’ (2012) 21 Review of European, Comparative and International Environmental Law 204. 13

The responsibilities of corporations  233 of law do not.20 A human rights framework can also provide vulnerable countries with the opportunity to account for their experience of climate impacts.21 States may become liable for violations of human rights not only within their own state, but also potentially extraterritorially.22 While actions for human rights violations are traditionally made against the state, corporations are duty-bearers and so there is an argument that corporations could also be held liable. The extractive industry in particular has been criticized for its close proximity to human rights violations in general, which raises the question of its responsibility for such violations.23 It is in the area of human rights and climate change that the petition to the CHR focused its attention. The aim of the petition, and consequentially the Commission’s investigation, is to connect the human rights-related impacts of climate change and the contribution of carbon major entities to these impacts. The Commission’s investigation forms part of a new corporate climate litigation trend emerging in various jurisdictions. 2.2

Corporate Contributions to Climate Change

The science on climate change has increased in certainty and accuracy over the years. GHG emissions, and the resulting impacts from climate change, account for a large and growing share of global environmental damage, estimated to constitute 69–73% of all externalities from 2008 to 2050.24 The Paris Agreement25 has a goal of limiting average global temperature increases to ‘well below 2°C’, with an aspirational goal of limiting the increase to 1.5°C.26 A recent Intergovernmental Panel on Climate Change (IPCC) report in October 2018 states that climate-related risks for natural and human systems are higher for global warming of 1.5°C than at present, but lower than for the risks related to a 2°C rise above pre-industrial levels.27 Disadvantaged and vulnerable populations, indigenous people and local communities highly dependent on agriculture or coastal livelihoods are at disproportionately higher risks.28 This means that many communities in the Global South will be more exposed to the impacts of climate change should global warming increase from 1.5°C to 2°C. Even at 1.5°C, 500 million

20 A. Savaresi and J. Hartmann, ‘The Impacts of Climate Change on Human Rights – Some Early Reflections on the Carbon Majors Inquiry’ (2018), https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​ =​3277568. The authors do note some deficiencies with this approach, including that human rights remedies are usually declaratory. 21 Cameron and Limon (n 19). 22 John Knox, ‘Linking Human Rights to Climate Change at the United Nations’ (2009) 33 Harvard Environmental Law Review 477, 491; International Law Association’s 2014 ‘Legal Principles Relating to Climate Change’ Draft Articles, Art. 7A(1), available at www​.ila​-hq​.org/​en/​committees/​index​.cfm/​ cid/​1029. 23 R. Sullivan, ‘NGO Expectations of Companies and Human Rights’ (2003) 3(2–3) Non-State Actors and International Law 303, 316. 24 UNEP Finance Initiative and Principles for Responsible Investment, ‘Universal Ownership – Why Environmental Externalities Matter to Institutional Investors’ (2010) 1, 5. 25 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 26 Ibid Art. 4. 27 IPCC, ‘1.5°C Special Report’ (n 1) 5. 28 Ibid, 11.

234  Research handbook on transnational environmental law people will be exposed and vulnerable to water stress, 36 million could see lower crop yields, and up to 4.5 billion people could be exposed to heat waves.29 Corporations are major contributors to the climate crisis through the emission of GHGs. Heede’s quantitative analysis of historic fossil fuel and cement production records of 90 leading investor-owned, state-owned and nation state producers of oil, natural gas, coal and cement concluded that 63% of cumulative worldwide emissions of carbon dioxide and methane from 1854–2010 were attributed to these ‘carbon major’30 entities. The majority of these emissions originate from activities such as fossil fuel combustion, flaring, venting, fugitive or vented methane, fuel use by those entities, and cement production.31 The 20 largest investor and state-owned energy companies are responsible for 29.5% of all global industrial emissions, and the ten largest investor-owned corporations alone are responsible for 15.8% of global emissions up to 2010.32 State-owned and nation state producers, some located in the Global South, are also some of the largest contributors. Corporations currently treat GHG emissions as a negative externality.33 These entities rarely voluntarily pay for, internalize, reduce or eliminate the externalities they produce without being compelled to do so by regulation.34 This lack of accountability is often attributed to the profit maximization theory of modern corporations: it is more profitable to externalize costs; and the global regulatory structure does little to regulate their behaviour in the context of climate change. Despite their tremendous contribution to global emissions, these entities are not regulated through stringent, top-down, transnational emissions limits, but are instead governed largely by ‘disclosure only’ requirements and market-based or corporate social responsibility (CSR) mechanisms.35 Section 3 will assess a selection of transnational governance frameworks and initiatives in relation to carbon majors in the extractive industry, with a focus on their key gaps, limitations and opportunities.

3

TRANSNATIONAL GOVERNANCE FRAMEWORK AND INITIATIVES

Traditional approaches to law define it as a deeply territorial concept, bound tightly to the geographical understanding and authority of the state.36 Issues such as globalization and the structure of transnational corporations’ international operations, challenge this understanding of law. Globalization has led not only to increased foreign direct investment in the Global South, but in governance terms has resulted in less attention being paid to the integrity of

Ibid, 447, 452, 464. R. Heede, ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122 Climatic Change 229. 31 Ibid, 234. 32 Ibid. 33 D. Cole and P. Grossman, Principles of Law and Economics (Pearson Prentice Hall 2004) 14. 34 A. Johnston, ‘Facing Up to Social Cost: The Real Meaning of Corporate Social Responsibility’ (2011) 20 Griffith Law Review 221, 223. 35 L. Benjamin, ‘The Responsibilities of Carbon Major Companies: Are They (and Is the Law) Doing Enough?’ (2016) 5 Transnational Environmental Law 353. 36 V. Heyvaert, ‘Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 205, 211. 29 30

The responsibilities of corporations  235 territorial state borders, which has allowed TNCs to avoid territorial-based regulations through the free movement of capital.37 TNCs are jurisdictionally complex entities for international law to govern. While they will usually register or incorporate in one ‘home state’, they can also operate in other jurisdictions and adopt other nationalities.38 In addition, they often form subsidiary corporations in other jurisdictions where they operate, and in terms of legal responsibility those subsidiaries are often deemed to be separate legal entities from the parent corporation under the predominant entity theory. This is so even though the parent corporation often has its own directors sit on the board of the subsidiary, and often functionally controls its operations and decisions, and receives its profits via dividends. Despite their vast jurisdictional reach, TNCs are not considered to be formal subjects of international law and so are not directly bound by it except in limited circumstances.39 Their structural power allows them to create or sustain a regulatory void at the global level.40 International legal instruments often fail to impose environmental and human rights responsibilities on TNCs.41 Dine notes that imposing human rights obligations on corporations is difficult and complex, mainly because these entities are not formal legal actors under international law and therefore are not directly bound by international human rights law.42 As a result, there has been a turn to soft law or transnational law. Transnational law is deemed to be ‘law beyond the state’.43 Transnational environmental regulation can be understood as environmental regulation beyond the state.44 Regulation has been describes as a deliberate exercise of influence on a target’s behaviour designed to either stabilize or modify their behaviour, performed with a certain degree of authority and persistence.45 It is a subset of governance, which includes all processes and institutions, both formal and informal, that guide and restrain collective activities of a group.46 Some of the transnational initiatives described in this section can be understood as ‘quasi-regulation’ or strictly private governance initiatives. As the actors are purely private, it is not clear whether these initiatives are entirely aimed at achieving a public good, and it is also questionable how authoritative the exercise of their influence is. There are a number of reasons for the development of transnational regulation, including sheer necessity, as formal, hard law mechanisms are unable to address the issue at hand, the uniqueness and adaptability of transnational instruments, as well as the fact that the proliferation of transnational actors and their jurisdictional reach has inevitably led to other types of transnational instruments being developed.47 These instruments or initiatives include soft law, 37 L. Catá Backer, ‘Private Actors and Public Governance beyond the State: The Multinational Corporation, the Financial Stability Board, and the Global Governance Order’ (2011) 18 Indiana Journal of Global Legal Studies 751, 754. 38 For a further explanation of jurisdictional complexity for TNCs, see S. Seck, ‘Transnational Judicial and Non-Judicial Remedies for Corporate Human Rights Harms: Challenges of and for Law’ (2013) 31 Windsor Yearbook of Access to Justice 177, 178–82. 39 Kalimo and Staal (n 6) 366 and 372. 40 Ibid, 370. 41 Ibid. 42 J. Dine, Companies, International Trade and Human Rights (Cambridge University Press 2010) 167–8. 43 Heyvaert and Etty (n 2) 3. 44 Heyvaert (n 36) 206. 45 Ibid. 46 Ibid. 47 Kalimo and Staal (n 6) 379.

236  Research handbook on transnational environmental law self-regulation, codes of conduct, CSR initiatives, and strictly private initiatives such as the Forest Stewardship Council and Marine Stewardship Council, supply chain contract provisions, and other intra-company sustainability initiatives. The variety of instruments and initiatives defy strict categorization, and blur the strict dichotomy between public and private law.48 The turn to transnational governance initiatives has its champions and its critics. Backer argues that TNCs have used this development as an opportunity to substitute themselves as the new regulators of behaviour through transnational networks of governance initiatives.49 Groups of non-state actors are able to create autonomous regulatory communities, allowing them to mount strong functional attacks on state-based governance authority.50 Vogel, in turn, argues that in some circumstances these initiatives can precipitate a ‘race to the top’, citing the example of California and the ‘California effect’ of spreading stricter regulatory standards to automotive manufacturers.51 The development of and participation in private regulation generate regulatory and other advantages, and allow these actors to stave off public regulation and other interventions.52 While acknowledging that private environmental governance initiatives are neither complete nor optimal responses to existing environmental problems, Vandenbergh proposes alternative ways of measuring the success of these initiatives. He defines private environmental governance as action taken by non-government entities designed to achieve traditional environmental goals, such as managing common pool resources or reducing environmental externalities.53 He proposes that their success can be measured, for example, through a comparison with what would have occurred in their absence, or an assessment of whether they can induce scholars to identify new solutions to collective action problems.54 These governance initiatives are often voluntary in membership and impose few strict obligations or punitive consequences for corporations for failing to comply, particularly in the context of human rights and climate change. The mechanisms may lack coherence, and can be manipulated by corporations by choosing their own baselines and methodologies for reporting and monitoring.55 However, in some contexts and for some actors, private regulatory initiatives can have a strong ‘compliance pull’.56 While membership is formally voluntary, an argument can be made that participation in at least some of the initiatives and for some of the participating corporations is induced or softly compelled due to the pressures of the social licence to operate. The environmental impact of these governance initiatives can be vast in scale, particularly when adopted by large TNCs. In 2005 Walmart set a goal to operate with 100% renewable energy, and in 2017 it launched ‘Project Gigaton’, aiming to avoid one billion metric tonnes of GHG emissions from global value chains by 2030.57 Vandenbergh

Heyvaert and Etty (n 2) 4. Backer (n 37) 755. 50 Ibid. 51 D. Vogel, ‘Trading Up and Governing Across: Transnational Governance and Environmental Protection’ (1997) 4 Journal of European Public Policy 556, 561. 52 V. Heyvaert, ‘Regulatory Competition – Accounting for the Transnational Dimension of Environmental Regulation’ (2012) 25 Journal of Environmental Law 1, 22. 53 M. Vandenbergh, ‘Private Environmental Governance’ (2013) 99 Cornell Law Review 129, 146. 54 Ibid, 139. 55 I. Rosen-Zvi, ‘You Are Too Soft!: What Can Corporate Social Responsibility Do for Climate Change?’ (2011) 12 Minnesota Journal of Law, Science & Technology 527, 551. 56 Heyvaert (n 36) 216. 57 See https://​corporate​.walmart​.com/​2018grr/​reducing​-greenhouse​-gas​-emissions. 48 49

The responsibilities of corporations  237 and Gilligan estimate that private environmental governance and corporate actions could reduce emissions by roughly 1,000 million tons of CO2 per year between 2016 and 2025 and so achieve major GHG emissions reductions in the face of government gridlock.58 As a result, these initiatives can fill temporal and other public governance gaps.59 3.1

The Development of Corporate Transnational Governance Regimes

A number of transnational governance regimes have been developed over the years, including UN and Organisation of Economic Co-operation and Development (OECD) sponsored initiatives, as well as investor codes and international voluntary codes, which attempt to regulate corporate behaviour. The OECD Guidelines for Multinational Corporations were agreed in 1976,60 followed by the International Labour Organization’s Tripartite Declaration of Principles Concerning Multinational Enterprises in 1977.61 Further global initiatives were promulgated as a result of increasing human rights concerns due to the activities of transnational corporations in the extractive industries in the Global South. These included the UN Global Compact62 and the Voluntary Principles on Security and Human Rights in 2000;63 the Kimberley Process Diamond Certification Scheme;64 and the Extractive Industries Transparency Initiative (EITI) in 2002.65 The EITI has become one of the most widely adopted among these initiatives. It comprises the EITI Principles as well as the EITI Requirements and a new Protocol of Participation for Civil Society. The Principles apply to states where extractive industries operate, and require the involvement of corporations as well as civil society in that state in order to be ‘EITI compliant’. While there has been wide uptake of the initiative among states, it focuses on transparency only, imposes no obligations on corporations, and recent studies have questioned its effectiveness in ensuring more substantive outcomes such as sustainable economic development, good governance and the rule of law.66 A number of global initiatives focus on environmental issues and TNCs. Two global public codes of conduct which cover environmental issues are the OECD Guidelines for Multinational Enterprises (MNEs)67 and the UN Global Compact for Responsible Corporate Citizenship (UNGC).68 The OECD Guidelines for MNEs were established in 1976 as non-binding guidelines for multinational corporations to use, and continue to be one of the

M. Vandenbergh and J.Gilligan, ‘Beyond Gridlock’ (2015) 40 Columbia Journal of Environmental Law 218. See also M. Vandenbergh, ‘The Drivers of Corporate Climate Mitigation’ (2018) 29 The Environmental Forum; and M. Vandenbergh, ‘Private Actors: Part of the Problem, Part of the Solution’ (2017) 48 Environmental Forum. 59 Vandenbergh and Gilligan (n 58) 163. 60 See www​.oecd​.org/​corporate/​mne/​. 61 See www​.ilo​.org/​empent/​Publications/​WCMS​_094386/​lang​-​-en/​index​.htm. 62 See www​.unglobalcompact​.org. 63 See www​.voluntaryprinciples​.org/​for​-companies. 64 See www​.kimberleyprocess​.com. 65 See https://​eiti​.org. 66 B. Sovacool and others, ‘Energy Governance, Transnational Rules, and the Resource Curse: Exploring the Effectiveness of the Extractive Industries Transparency Initiative (EITI)’ (2016) 83 World Development 179, as well as S.A. Rustad, ‘Has the Extractive Industries Transparency Initiative Been a Success?’ Identifying and Evaluating EITI Goals’ (2017) 51 Resources Policy 151. 67 See www​.oecd​.org/​investment/​guidelinesformu​ltinationalenterprises/​1922428​.pdf. 68 See www​.unglobalcompact​.org. 58

238  Research handbook on transnational environmental law only international guidelines directly applicable to them. International business had a profound influence on the drafting of the Guidelines, which were negotiated through the Committee on International Investment and Multinational Enterprises, which was ‘vehemently opposed’69 to the Guidelines being anything more than voluntary guidelines. The voluntary nature of the OECD Guidelines, together with the flexible but inconsistent and weak nature of its ‘enforcement’ through National Contact Points,70 often has exposed the environmental effectiveness of the Guidelines to criticism. The UNGC provides ten principles. The principles cover broad areas of CSR such as human rights, labour rights, environmental rights, and anti-corruption. Principles 7 to 9 cover environmental matters and stipulate that corporations should support the precautionary approach to environmental challenges (Principle 7), and should undertake initiatives to promote greater environmental responsibility (Principle 8). The principles are broadly formulated and contain guidance regarding steps that corporations can take towards their implementation. These steps include the development of codes of conduct and strategies, and the use of environmental management, monitoring and verification programmes. The UNGC currently has over 12,000 participants, which include corporations, non-governmental organizations (NGOs) and other stakeholders, located in 145 countries. It is presently the largest global corporate initiative, although membership remains voluntary.71 Participants include a large number of non-state actors in the extractive industries, including energy, oil, timber and mining corporations.72 None of the UNGC principles specifically refers to the reduction of GHGs by corporations, although the Caring for Climate (C4C) initiative was developed in 2007 by the UNGC, the United Nations Environment Programme (UNEP)73 and the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC).74 The goal of the C4C is to advance the role of business in addressing climate change by corporations endorsing a UN ‘Caring for Climate Statement’, setting goals and targets, and disclosing their emissions under the UNGC Communication on Progress.75 Corporations are free to choose which of the principles they adhere to, and monitoring of their compliance is weak. In addition to these transnational governance initiatives, there are a variety of private certification and reporting standards, such as the Global Reporting Initiative (GRI)76 and, in the context of climate change, the Carbon Disclosure Project, or CDP,77 and the Carbon Neutral Protocol.78 A number of carbon major corporations do voluntarily report under guidelines,

S. Macleod and D. Lewis, ‘Transnational Corporations Power, Influence and Responsibility’ (2004) 4 Global Social Policy 77, 80. 70 S.F. Vendzules, ‘The Struggle for Legitimacy in Environmental Standards Systems: The OECD Guidelines for Multinational Enterprises’ (2010) 21 Colorado Journal of International Environmental Law & Policy 451, 488. 71 United Nations Global Compact, www​.unglobalcompact​.org/​about. 72 L. Bernie, P. Bernhagen and N. Mitchell, ‘The Logic of Transnational Action: The Good Corporation and the Global Compact’ (2007) 55 Political Studies 733, 744. 73 The organization is now using the name ‘UN Environment’, see www​.unenvironment​.org/​. 74 United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107. 75 See www​.caringforclimate​.org. 76 See www​.globalreporting​.org. 77 See www​.cdproject​.net. 78 See www​.carbonneutral​.com/​how/​reduce. 69

The responsibilities of corporations  239 codes or initiatives, and in addition have developed their own sustainability reports and, in some cases, their own climate change policies. New initiatives such as the Task Force on Climate-Related Financial Disclosures (TCFD) and the Enterprise Principles demonstrate renewed activity within transnational initiatives targeted specifically in the area of climate change.79 The TCFD is currently a voluntary initiative which provides recommendations to corporations on disclosure of climate risk for the benefit of investors.80 The Principles on Climate Obligations of Enterprises (the Enterprise Principles) aim to outline the current state of international legal obligations of both enterprises and investors in respect of climate change. The Enterprise Principles establish five main categories of legal obligations for enterprises and investors. Enterprises have obligations to reduce emissions from their own activities (Principles 2–8 and 12–16); to reduce emissions from their products and services (Principles 9–11); to reduce emissions in their supply chains (Principle 17); and procedural obligations on disclosure and environmental impact assessments (Principles 18–24).81 The preceding initiatives are all voluntary in membership, and corporations can choose which ones to participate in, although where companies sign up to the OECD Guidelines they should comply with National Contact Point mechanisms, and the TCFD is emerging as a mandatory reporting framework in some countries. The OECD Guidelines and UNGC have weak enforcement mechanisms which are not currently well used in the context of climate change, although National Contact Points in some jurisdictions are seeing increasing climate-related complaints. The EITI only focuses on transparency and Banerjee notes it has failed to deliver on its goals for better natural resource management or a reduction in corruption due to the variability of the data provided, as well as asymmetric power relations.82 The newer initiatives may prove promising, but none focuses on the connection between human rights and climate change. Only the UNGPs make the connection between human rights and corporate activities. 3.2

United Nations Guiding Principles

As many transnational initiatives in respect of corporations are voluntary, there was a global push to go ‘beyond volunteerism’,83 which resulted in the failed attempt at adoption of the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (or UN Norms).84

79 The Enterprise Principles were developed out of the Oslo Principles on Global Climate Obligations which focused on obligations of states in respect of climate change, see www​.elevenpub​ .com/​law/​catalogus/​oslo​-principles​-on​-global​-climate​-obligations​-1. 80 Mark Carney was appointed as the UN Special Envoy on Climate Action and Finance. As one of the architects of the TCFD, it is anticipated that these recommendations may become mandatory in the future; P. Inman, ‘World May Miss Carbon Targets Unless Big Firms Improve – Mark Carney’ (The Guardian, 27 February 2020), www​.theguardian​.com/​environment/​2020/​feb/​27/​world​-may​-miss​-carbon​ -targets​-unless​-big​-firms​-improve​-mark​-carney. 81 L. Benjamin, ‘An Industry Sea-Change for Enterprises and Investors on Climate Change’ (9 February 2018) Global Policy, www​.globalpolicyjournal​.com/​blog/​09/​02/​2018/​industry​-sea​-change​ -enterprises​-and​-investors​-climate​-change. 82 Banerjee (n 5) 808. 83 Mantilla (n 12) 285–6. 84 UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).

240  Research handbook on transnational environmental law The UN Norms were controversial as the original mandate sought to impose legal obligations on transnational corporations to ‘promote, secure the fulfillment of, respect, ensure respect of and protect human rights’, although this mandate was not eventually fulfilled.85 They sparked a divisive debate between human rights advocacy groups in support of binding obligations on the one hand, and the business community, represented by bodies such as the International Chamber of Commerce, and countries such as the United States (US) and the United Kingdom (UK), all strongly resistant to legal obligations being imposed on corporations.86 In order to resolve this deep divide, John Ruggie was appointed in 2005 as special representative of the Commission of Human Rights on the issue of business and human rights, with the mandate to ‘identify and clarify’ international standards and policies.87 His 2008 Framework was unanimously welcomed by the UN Human Rights Council. The 2008 Framework established a three-pronged approach of ‘protect, respect and remedy’, but only included a responsibility, not a legal duty, of corporations to ‘respect’ human rights. While this includes a responsibility to avoid causing or contributing to adverse human rights impacts, and to establish policies and processes to meet the responsibility to respect,88 it is not a binding obligation on corporations to protect human rights. Ruggie also produced a set of ‘Guiding Principles’ in 2011 to operationalize the framework.89 The Guiding Principles recommend that corporations institute a formal policy to respect human rights, a human rights due diligence process to identify impacts, and a remediation process.90 The 2015 UN Guiding Principles Reporting Framework provides further procedural details for corporations.91 While the UN Norms and Guiding Principles do not impose legal obligations on corporations to protect human rights, the UNGPs impose duties (separate and apart from those imposed on the state), for these entities to take adequate measures to prevent, mitigate, and where appropriate remediate adverse human rights impacts, highlighting a turn towards non-judicial and transnational pluralism.92 These remedies can include apologies, restitution, financial or non-financial

Ibid, Art. A.1. Mantilla (n 12) 288; Human Rights Council, ‘Report of the Special Representative of the Secretary-General John Ruggie on the issue of human rights and transnational corporations and other business enterprises’ (21 March 2011) A/HRC/17/31, para. 3; P. Pavel Miretski and S.-D. Bachman, ‘The UN “Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights”: A Requiem’ (2012) 17 Deakin Law Review 5, 8. 87 Mantilla (n 12) 289; J. Bellace, ‘Hoisted on their Own Petard? Business and Human Rights’ (2014) 56 Journal of Industrial Relations 442, 453. 88 Human Rights Council, Report of John Ruggie (n 86), Annex, Art. II. 89 See www​.ohchr​.org/​Documents/​Publications/​GuidingPrinciplesBusinessHR​_EN​.pdf. 90 Ibid, 13–25. 91 See www​.ungpreporting​.org. 92 Seck (n 38), 191. In addition to the Guiding Principles, recognizing the significant gaps in human rights protections in the context of globalization and lack of accountability of TNCs, the Maastricht Principles on Extraterritorial Obligation of States in the area of Economic, Social and Cultural Rights provide further guidelines on the extraterritorial obligation of states in respect of economic, social and cultural rights. They extend the obligations of states to non-state actors acting on the instruction or under the direction of the state, see Principle 11.9 at www​.etoconsortium​.org/​nc/​en/​main​-navigation/​ library/​maastricht​-principles/​?tx​_drblob​_pi1​%5BdownloadUid​%5D​=​23. See also the OHCHR Key Messages on Climate Change and Human Rights which stress that TNCs are duty-bearers with responsibilities to respect human rights and accountability for their climate impacts, www​.ohchr​.org/​EN/​Issues/​ HRAndClimateChange/​Pages/​HRClimateChangeIndex​.aspx. 85 86

The responsibilities of corporations  241 compensation and punitive sanctions, as well as injunctions and guarantees of non-repetition.93 It is precisely these Guiding Principles that the petition to the CHR relies upon. In a new initiative, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has developed a legally binding instrument to regulate the activities of TNCs in the realm of human rights. The ‘zero draft’, issued in July 2018, imposes more specific obligations on states to investigate human rights violations effectively, promptly and impartially and, where appropriate, to take action.94 Article 9(2) fleshes out obligations of due diligence for corporations, and Article 8(7) establishes an International Fund for Victims. While significant movements in the area of human rights and climate change have been made, the Guiding Principles remain soft law in the context of corporations, and no liability has been imposed by these initiatives on corporations to date. In part as a reaction to these limitations, climate litigation against corporations has taken hold.

4

NEW DIRECTIONS IN ENVIRONMENTAL LITIGATION: THE ‘CORPORATE’ CLIMATE LITIGATION TREND AND THE CHR INVESTIGATION

There has been an explosion of climate-related litigation in the past few years. While much of this has focused on governments as defendants, a number of cases target carbon major corporations and their role in the climate crisis.95 This may be in part due to the failure of existing legal structures to grant remedies to victims of climate change and other corporate abuses in host states.96 This litigation has sought to achieve more progressive climate outcomes by states and corporations through the courts, with mixed success. Litigation against the state has sought to impose stricter GHG targets. Litigation against corporations has sought to impose liability for climate harms. While most tort-based claims have been unsuccessful to date, plaintiffs are also exploring other legal means, such as corporate and securities laws, to achieve liability. Arguably, this renewed activity in climate litigation can provide functional equivalents to formal state-based and transnational regulatory initiatives. 4.1

Role of Litigation in Climate Governance

Litigation can serve as a useful regulatory tool, opening up pathways for progressive climate action. Carbon major corporations are vulnerable to litigation suits due to their multinational nature, having corporate presences in a number of jurisdictions. According to Julia Black,

See Commentary to Principle 26. Principle 8(3) Zero Draft, ‘Legally Binding Instrument to Regulate in International Human Rights, the Activities of Transnational Corporations and Other Business Corporations’, www​.business​ -humanrights​.org/​sites/​default/​files/​documents/​DraftLBI​.pdf. 95 M. Olszynski, S. Mascher and M. Doelle, ‘From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability’ (2017) 30 Georgetown International Environmental Law Review 1, 18; G. Ganguly, J. Setzer and V. Heyvaert, ‘If at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38 Oxford Journal of Legal Studies 841; L. Benjamin, ‘The Road to Paris Runs Through Delaware: Climate Litigation and Directors’ Duties’ 2020(2) Utah Law Review 313. 96 E. Aristova, ‘Tort Litigation against Transnational Corporations in the English Court: The Challenge of Jurisdiction’ (2018) 14(2) Utrecht Law Review 6, 6. 93 94

242  Research handbook on transnational environmental law litigation can serve as one of many ‘decentred’ regulatory devices.97 Black provides a wider concept of regulation as dispersed power between social actors, including between non-state actors and the state.98 Although she notes that once ‘untethered’ from the state, it is not clear where the boundaries of decentred regulation lie,99 the concept would include the courts as a transnational actor, and as such, litigation.100 Litigation includes mediated rights of litigants against regulated bodies such as states, which indirectly impact corporations. Decentred regulation could also include actions by private groups and associations, including private environmental governance regimes and quasi-litigation efforts.101 There is no set definition of ‘climate litigation’,102 but Osofsky and Peel have put forward a definition which includes litigation which has climate change at its ‘core’.103 They note that litigation is an integral part of multilevel climate governance systems as it ‘creates fluid pathways for interactions among regulation at subnational, national and international levels’.104 Litigation can also provide functional equivalents to governance mechanisms where regulatory blockages exist. Litigation in that sense holds tremendous flexibility, and can be used as a method of structurally ‘going around’ partisan political debates regarding energy and the energy transition.105 The HRC investigation is quasi-litigation, in that it is neither a hearing nor a tribunal. As such, it circumvents and potentially undermines the authority of existing legal adjudicatory pathways. But if the investigation is seen as less of a conflict resolution mechanism and more of means to influence the behaviour of corporations in the realm of climate change and loss and damage, it serves a less complex and contested role. 4.2

CHR Investigation – The Petition, Hearings and Ongoing Work

In 2016, Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement submitted a petition to the Philippine Commission on Human Rights, requesting an investigation of the role of carbon major corporations for human rights violations or threats of violations of human rights due to climate change. It was supported by 12 other organizations and over 1,000 residents of the Philippines. The petition specifically situated its requests in the context of the extreme events and slow-onset events being experienced by residents in the Philippines. The costs of Super Typhoon Yolanda and other extreme events in both human lives, as well as financial costs to the state, were emphasized. Most poignantly, the petition sought to highlight J. Black, ‘Critical Reflections on Regulation’ (2002) 27 Australian Journal of Legal Philosophy 1,

97

2.

Ibid, 5–6. Ibid, 2. 100 Ibid, 17. 101 Ibid, 83–4. 102 Markell and Ruhl originally defined climate litigation as any piece of federal, state, tribal or local administrative or judicial litigation in which party filings or tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes or impacts; see D. Markell and J.B. Ruhl, ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64 Florida Law Review 15. 103 H. Osofsky and J. Peel, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press 2015) 10. 104 Ibid, 53. 105 H. Osofsky and J. Peel, ‘Energy Partisanship’ (2017) 65 Emory Law Journal 695, 702, 761 and 764. 98 99

The responsibilities of corporations  243 the ‘real life pain and agony of losing loved ones, homes, farms – almost everything – during strong typhoons, droughts, and other weather extremes’.106 The petition relied heavily on Principle 13 of the Guiding Principles, and the substantive and procedural responsibilities of business enterprises contained within it.107 Principle 13 states: The responsibility to respect human rights requires that business enterprises: (a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

The petition alleged that corporations can be responsible where they cause or contribute to human right impacts through their activities. According to the petition, the definition of causation would include situations where the carbon major is the sole or main source of harm in a community. ‘Contributions to’ human rights impacts, in turn, covers situations where the carbon major is among the sources that have caused harm, or its products or services have been provided to a third party and then have caused harm.108 The petition stated that because carbon major corporations have both profited generously from their emissions and are undermining solutions to the climate crisis, they should be held accountable in accordance with the polluter pays principle, and the intergenerational equity principle.109 The petitioners relied on Heede’s quantitative analysis to establish the proportionate contributions of these entities to climate change. While the petitioners acknowledged that it is not possible to attribute specific harm to carbon produced by a single emitter, they asserted that there is a ‘substantial probability that climate impacts experienced by Filipinos are made significantly worse as a result of the Carbon Major’s past and current activities’.110 The petitioners requested specific actions be taken by the Commission, including an investigation into the human rights impacts of climate change in the Philippines, developing clear and objective standards for reporting by carbon major corporations, as well as accountability mechanisms that can be easily accessed by the climate vulnerable, and requesting that these corporations explain how they seek to address these violations. In response to the petition, the Commission wrote to the cited corporations. Most of the carbon majors’ responses do not comment on the issue of their contribution to the human rights impacts of climate change, and simply refer the Commission to their sustainability reports and/or climate change policies.111 Beyond fairly anodyne responses, carbon major corporations have not participated actively in the hearings, despite the hearing being couched as a dialogue with no liability issues attached.

106 Greenpeace Philippines, Petition to the Commission on Human Rights of the Philippines Requesting for Investigation of the Responsibility of the Carbon Majors for Human Rights Violations or Threats of Violations Resulting from the Impacts of Climate Change (22 September 2015), 2–3, www​ .greenpeace​.org/​seasia/​ph/​PageFiles/​105904/​Climate​-Change​-and​-Human​-Rights​-Complaint​.pdf. 107 Seck critiques the lack of citation of Principle 1 and 25 by the petitioners, Seck (n 8) 399. 108 Greenpeace Philippines (n 106). 109 Ibid, 21. 110 Ibid, 23. 111 For example, see responses from AngloAmerican, 4 October 2016; BP, 10 October 2016; Rio Tinto, 10 October 2016.

244  Research handbook on transnational environmental law The Commission responded to the petition by opening an investigation. It held several hearings, with four sittings in the Philippines, one in New York from 27–28 September 2018, and another in London from 6–7 November 2018. The first hearing focused on testimony from survivors of Super Typhoon Yolanda. The second hearing included testimonies from Filipino-Americans who experienced the impacts of Hurricane Sandy in New York City, and then travelled to the Philippines to speak to survivors of Super Typhoon Yolanda. This narrative provided a global connection between the climate vulnerable in both the Global North and the Global South, highlighting transnational shared experiences. Testimony was also provided by climate scientists as well as corporate and environmental legal scholars who submitted a proposal for accountability by carbon major corporations. The hope of the Commission is that its National Inquiry will raise interest in its process, the topic of its investigation as well as its recommendations to the state with other national human rights institutions.112 In December 2019 the Commission announced its findings, that carbon major corporations can be held liable for climate damages, although further details of its decision have not been published yet.113 A number of the carbon major corporations cited in the petition have their registered headquarters in both the US and the UK, the very locations where the investigation has held its hearings, and yet have not contributed to the investigation beyond brief responses. While their lack of involvement is a voluntary decision, it also highlights the quasi-litigious and contentious character of the investigation. Procedural devices such as discovery, disclosure and written pleadings are all absent, as is a formal burden of proof. In their written responses to the Commission, these entities have refused the jurisdiction of the investigation over their activities. Some of them have sent representatives to sit in on and take notes of the hearings, so they are not formally participating, yet are not entirely absent from the proceedings.114 By situating the hearings in the jurisdictions where these corporations are registered, the investigation pushes against the jurisdictional complexities of transnational corporations. The investigation physically and figuratively brings the voices of the climate vulnerable to the very seat of power of these transnational corporations, and therefore heightens public awareness of the impacts of climate change on the climate vulnerable and poses difficult questions about the role and efficacy of global climate governance in the context of transnational corporations. Using law as an expository tool overcomes the causation and other procedural hurdles experienced in traditional litigation against carbon major corporations, and can be effective in connecting the activities (and profits) of these entities with the human suffering that has been and will continue to be caused by climate change. The CHR’s investigation can play an

R.E.T. Cadiz, Chair, National Inquiry on Climate Change, Commission of Human Rights of the Philippines, ‘New approaches to climate justice: Framing climate change as a human rights issue in a global dialogue’, http://​essc​.org​.ph/​content/​new​-approaches​-to​-climate​-justice​-framing​-climate​ -change​-as​-a​-human​-rights​-issue​-in​-a​-global​-dialogue. 113 Business & Human Rights Resource Center, ‘Philippines: Landmark decision by Human Rights Commission paves way for climate litigation’, https://​www​.business​-humanrights​.org/​en/​latest​-news/​ philippines​-landmark​-decision​-by​-human​-rights​-commission​-paves​-way​-for​-climate​-litigation. 114 The CHR’s Omnibus Rules of Procedure (Guidelines and Procedures in the Investigation and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR Assistance) govern its operations and provide rules for the CHR to manage non-participation by the respondents. For more information see R.S. Lucia, ‘Philippine Commission on Human Rights Conducts First Hearing on the “Carbon Majors” Petition’, 4 May 2018, http://​blogs​.law​.columbia​.edu/​climatechange/​2018/​05/​04/​ philippine​-commission​-on​-human​-rights​-conducts​-first​-hearing​-on​-the​-carbon​-majors​-petition/​. 112

The responsibilities of corporations  245 important role in highlighting the devastating impact of carbon majors on the environment in a specific context; amplifying the often-overlooked voices and experiences of the climate vulnerable, while linking the activities of these powerful transnational entities to the global impacts of climate change. Other climate-related governance initiatives such as the EITI and the work of the TCFD are not as focused on the human rights dimension of climate change, and therefore the work of the Commission fills a key gap. In the absence of effective transnational climate regulation, the Commission’s work seeks to open up a functional equivalent of transnational governance by framing the issue of climate change from the perspective of the climate vulnerable, and connecting the suffering of the most vulnerable to the activities of the most powerful. As a result, its work is both deeply contentious and deeply powerful. The investigation of the Commission seeks to understand and highlight the suffering of the climate vulnerable through individual stories, told directly by the voices of the vulnerable. The device also provides individuals with an international stage for shared experiences, as well as the ability to pose questions and seek scientific and expert answers about the role of carbon major corporations as contributors to their experiences. This process seeks to address the democratic deficits that exist in many of these transnational governance initiatives, by inserting the voices of the climate vulnerable back into a transnational investigation.

5 CONCLUSION The environmental conflicts documented by the Environmental Justice Atlas, and the resistance movements that motivate them, are demands for community voices to be heard.115 These demands are made against the backdrop of global governance gaps which fail to adequately account for the needs and voices of the environmentally vulnerable. As Banerjee notes, ‘marginalized communities need democratic processes where they are neither excluded owing to institutional and political constraints, nor because their concerns, norms and aspirations are incommensurate with market expectations and state development policies’.116 As TNCs’ power and influence over transnational governance initiatives only expand and grow, the Commission’s investigation calls attention to existing governance gaps and gives voice to marginalized communities. The Commission’s investigation does this by its hearings serving as a powerful rhetorical device which can have public and social impacts, and provides further nuance to the role of litigation and quasi-litigation efforts as a transnational regulatory tool. One of its greatest successes may be in making a causal connection between the responsibilities of transnational corporations and the human rights impacts of climate change, which may provide a domino effect for other climate litigation.117 The declaratory and recommendatory power of the Commission, freed from the strictures of precedent and other legal hurdles, may be its greatest asset, although it can also be critiqued on that very point. Its stated aim is to test new pathways, to be bold and idealistic, and promote the turning of soft law into hard law, and to elevate the

Banerjee (n 5) 811. Ibid. 117 Savaresi and others (n 20). 115 116

246  Research handbook on transnational environmental law bar of human rights standards in the context of climate change.118 The Commission’s process also highlights existing gaps and limitations in existing transnational governance regimes. No existing transnational governance regime seeks to pinpoint corporate liability for human rights harm caused by their emissions so directly. However, a critical question remains: what is the next step in the process? While there has been an explosion of climate litigation recently, attaching legal liability, to date, to carbon major corporations through tort law has been largely unsuccessful. The Commission’s investigation seeks to provide an avenue connecting the vulnerable and the powerful, but the gulf in terms of historic contributions to emissions and resources to adapt is immense. Moreover, it will only continue to grow as the impacts of climate change mount. Difficult issues of climate justice and how to achieve such justice remain. While the Commission’s work provides a further global governance pathway in the context of climate change, the question of how to address the stories and challenges which the Commission’s investigation highlights through global governance initiatives towards a better and safer future for us all, remains unanswered. As a result, the investigation poses difficult questions about the role and adequacy of existing transnational governance efforts. It exposes the gaps in the transnational governance project, and through its activities challenges transnational law and governance techniques, as well as the corporations themselves, to create more effective responses to the roles and harms of transnational corporations in the environmental and specifically climate sphere. It seeks to open new avenues and new potential roles and responses by elevating the needs and concerns of the climate vulnerable and allowing them to directly interrogate the adequacy of existing international and transnational governance regimes. The Commission’s recommendations may also highlight potential opportunities for more effective governance regimes to be taken up by the state and corporations themselves. The Commission actively invites an informal co-ordination on the issue of climate change between national human rights commissions. The active role of non-state actors in the Paris Agreement negotiations and implementation could be one avenue for further exploration and enhancement with a focus on the climate vulnerable. Corporations can and have served as a catalyst for the ratcheting up of ambition in the Paris Agreement, and associated nationally determined contributions. However, carbon major corporations in particular have been slow to transition, and transnational law has been largely ineffective to date in attaching legal obligations to these entities for the climate harms to which they contribute. It is precisely this governance gap that the Commission’s investigation interrogates. Transnational actors can assume increasing regulatory responsibilities at the transnational level, and take actions such as lobbying for and internally imposing a carbon tax within their organization, as well as heavily diversifying existing energy portfolios into renewable energy. Such activities would require little to no state regulatory action, but would have tremendous global climate impacts. Expanding national CSR and corporate citizenship initiatives to a global sphere with more effective action required from TNCs could also help address existing governance gaps in relation to the climate vulnerable, with holistic and consistent methodologies and more aggressive penalties for non-compliance. Greater use of existing compliance regimes, such as relying on and testing policies and processes established (or purported to be established) under the Guiding Principles, as well as the use of existing National Contact Point processes under

Cadiz (n 112).

118

The responsibilities of corporations  247 the OECD Guidelines specifically in the context of climate change and climate harms, form another pathway that could be explored further by climate vulnerable populations. Using existing pathways would also highlight governance gaps and further develop the legal relationship between incumbent governance regimes and activities of corporations. However, more urgent and radical approaches are needed as we face unfolding transboundary environmental crises. The relationship between transnational corporations and environmental and climate harms has become a pressing issue and one that transnational law has yet to adequately address. Transnational governance regimes have not provided a satisfactory mirror of responsibilities to match existing corporate rights and structural influence and power, and this imbalance is being highlighted in the new litigation trends. The zero draft developed by OHCHR is an attempt to do just that, but more emphasis should be placed on human rights in these environmental transnational responses. The Human Rights Council should ensure a more systemic approach to climate change which includes more creative, urgent, and system-wide approaches,119 and which specifically addresses corporate responsibilities. A mandate should be taken up and pursued by the evolving transnational governance project, so that our understanding of the legal strengths and weaknesses of corporate rights and responsibilities is both interrogated against the backdrop of these unfolding environmental crises, and expanded and developed to fill existing governance gaps, providing space for much-needed legal innovation in this field.

Human Rights Council (n 17) para. 24.

119

15. Art and activism in transnational environmental governance Benjamin J. Richardson

1

INTRODUCTION – ORIENTATION1

At the 2015 Paris Summit on Climate Change, delegates may have encountered on the streets of the French capital posters mocking the hypocrisy of the polluting businesses, notably oil companies and airlines, for sponsoring the conference.2 Some 600 of these fake advertisements were placed by Brandalism, an international collective of artists who ‘revolt against the corporate control of culture and space’ by using ‘subvertising’ as a ‘lens through which we can view the intersectional social and environmental justice issues that capitalism creates’.3 One poster mocked VW, the German car manufacturer that cheated on its vehicle emission tests, with the message ‘We’re sorry that we got caught’. Another excoriating Air France carried the message ‘Tackling climate change? Of course not we’re an airline’, with an image of an air stewardess making the shush gesture. By expropriating advertising spaces such as billboards and bus stops that serve to promote company brands and consumerism, Brandalism aims to embarrass big business while encouraging the public to reflect more critically about corporate environmental malfeasance. The theatrics of Brandalism belong to a worldwide aesthetic phenomenon called ‘culture jamming’. Reconfiguring corporate logos, manipulating websites and defacing billboards to subvert their messages are its staple methods of cultural sabotage. While the private sector is the primary target of culture jamming, governments too may be tackled under the label ‘political jamming’. Government propaganda can be subverted with pranking strategies similar to those used against companies but targeting prominent symbols of national authority, such as flags, national anthems and public monuments. In this chapter ‘culture jamming’ will be generally used to encompass both corporate and government dimensions. Jamming is one form social activism that uses art to convey its message. Some modes of protest and civil disobedience, such as the transnational Extinction Rebellion (XR) movement, also mobilize a strong artistic stance, as evident in their costumes, banners, social media platforms and street performances for public engagement (see Figure 15.1). Jamming more specifically relies on ‘counter-aesthetic’ strategies that disrupt and challenge the aestheticized communications of business and government. While laws at national and transnational levels prescribe extensive environmental performance standards, they do not specifically govern This chapter draws partially on the author’s publications: ‘Climate Change Law: Encounters with Aesthetics and Art’ (2018) 8 Climate Law 279; ‘Green Illusions: Governing CSR Aesthetics’ (2019) 36(3) Windsor Yearbook of Access to Justice; The Art of Environmental Law: Governing with Aesthetics (Bloomsbury 2019). 2 BBC World News, ‘COP21: Eco Activists Brandalism Launch Paris Ad Takeover’ (BBC News, Paris, 29 November 2015), www​.bbc​.com/​news/​world​-europe​-34958282. 3 Brandalism, http://​brandalism​.ch. 1

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Art and activism in transnational environmental governance  249 communications about environmental performance other than technical content such as reporting on greenhouse gas (GHG) emissions. The aesthetic characteristics of business or political communications, both vitally important for their ability to influence public opinion, are generally outside the purview of environmental law. Advertising regulations and trademark law can help to control overtly misleading business communications, but they lack influence over the larger aesthetic qualities of the business world that contribute to environmentally degrading consumption: the corporate logos, jingles, stylish boardrooms and other aesthetic expressions of business values and practices. Government propaganda is even less susceptible to legal control.

Source:

Photograph by Benjamin J. Richardson.

Figure 15.1

Global Climate Strike, 22 September 2019, Hobart, Tasmania

The arts have a verified history of engaging with and being mobilized for environmental concerns, be it through art works that seek to publicize environmental problems, such as mining and industrial blight revealed in graphic horror by Canadian photographer Edward Burtynsky,4or via artworks used by environmental non-governmental organizations (NGOs) in campaigning for better environmental laws and policies, such as captivating imagery of picturesque landscapes and charismatic wildlife.5 Their efforts have had much success. The national parks movement in the late 19th century grew directly from the efforts of artists to inspire public appreciation of wilderness areas under threat from the axe or plough,6 while in more recent decades a range of environmental legislation for landscape management, ecolog-



See www​.edwardburtynsky​.com. B. Richardson, ‘Aesthetics and Environmental Law: Valuing Tasmania’s “Ordinary” Nature’ (2018) 27 Griffith Law Review 1. 6 N. Strochlic, ‘We Have a Painter to Thank for Yellowstone’ (National Geographic Magazine, April 2016), www​.nationalgeographic​.com/​magazine/​2016/​05. 4 5

250  Research handbook on transnational environmental law ical restoration and pollution control acknowledges the relevance of aesthetic factors, such as New Zealand’s Resource Management Act 1991,7 the United Kingdom’s (UK) Countryside and Rights of Way Act 2000, 8 and the United States’ (US) Wild and Scenic Rivers Act 1968.9 A variety of international environmental treaties also affirm aesthetic values, including the Convention of International Trade in Endangered Species of Flora and Fauna10 and the Convention on Biological Diversity.11 The enforcement of these and other laws also benefits from artistic techniques to mobilize public concern. For instance, the Sea Shepherd Conservation Society uses images its seafaring activists capture to bring the bloody business of Japanese whaling to a global audience, as part of its ongoing campaign to challenge the legality of so-called ‘scientific research’ whaling.12 Overall, arts-based activism and culture jamming contribute to transnational environmental governance in three key ways. First, they invigorate public discourse about environmental problems, especially identifying priorities for action that may be marginalized by business and political elites or the mass media. Through this agenda-shaping role, arts activism can improve recognition of local or global environmental threats, and thereby help build the case for policy and legal reform. Secondly, the arts can improve awareness of environmental aesthetics as a vital realm of human experience worthy of legal protection. Although natural beauty and other aesthetic values are not always aligned with sustainability or ecological integrity, they often can be, and their power to emotionally arouse and ethically steer human environmental values makes aesthetics as relevant to environmental governance as scientific or economic considerations. Recognition of aesthetics in national or international environmental law begins with their acknowledgment in culture and social discourse. Thirdly, culture jamming and other forms of aesthetic activism can promote accountability for environmentally damaging policies and practices. Through parody, satire and other means of exposing the ‘greenwashing’ that misleads the public, jammers may economically or politically damage offenders, which can be especially valuable when options for formal legal accountability are lacking, as is often the case for global environmental impacts. The aim of this chapter is to critically map arts-related activism in transnational environmental governance, assessing its methods and influence, thereby providing a gateway to empirical and more detailed research. This chapter draws heavily on non-legal literature because of sparse legal scholarship on this subject. One cluster of writings studies how the law regulates aesthetics, as in intellectual property law or land-use planning, for instance. 13 Another body of research known as the ‘law and literature’ school draws comparisons between the language of law and literary compositions such as poetry.14 A third cluster investigates the legal system

9

Section 2(1). 2000, c. 37, ss. 82–93. Public Law 90-542; 16 USC 1271. 10 Convention of International Trade in Endangered Species of Flora and Fauna (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243, preamble. 11 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79, preamble. 12 Sea Shepherd, https://​seashepherd​.org. 13 B. Richardson, E. Barritt and M. Bowman, ‘Beauty: A Lingua Franca for Environmental Law?’ (2018) 8 Transnational Environmental Law 59. 14 See E. Morgan, The Aesthetics of International Law (University of Toronto Press 2007); A. Gearey, Law and Aesthetics (Hart 2001). 7 8

Art and activism in transnational environmental governance  251 as imbued with aesthetic properties in its legal reasoning, rituals and symbols of authority. 15 The first and third of these clusters of research have some bearing on this chapter’s enquiry into the aesthetic dimensions of governance and its influence over environmental values and practices. But the central framework for this chapter’s inquiry is provided by environmental aesthetics and art criticism. The rest of this chapter unfolds over four further sections. The next explains foundational concepts of environmental aesthetics and art. Section 3 reviews how art movements have engaged with environmental issues of relevance to global challenges. Section 4 examines culture jamming as a form of activist art addressing environmental concerns. Section 5 assesses the impact and influence of culture jamming and the arts. The chapter concludes with brief reflections on improving the contribution of aesthetic activism to transnational environmental governance.

2

ENVIRONMENTAL AESTHETICS AND ART: FOUNDATIONS

Environmental law may ostensibly be grounded in rationality and reasoning, as reflected in its embrace of scientific knowledge and economic methods, but the natural world it strives to protect is primarily an animated sensory experience for people rather than a cold intellectual construct. Nature is experienced aesthetically through visual, acoustic and other sensory stimuli, while the anthropogenic impacts on it such as pollution and deforestation have aesthetic consequences too. Environmental law sometimes engages with aesthetics, notably in protection of landscapes for their scenic beauty and regulation of ‘unsightly’ development,16 and the state itself has aesthetic qualities such as the environmental motifs commonly used to symbolize national authority, as depicted in country flags, bank notes and national anthems.17 A word of ancient Greek origin, ‘aesthetics’, in contemporary English refers adjectivally to characteristics associated with sensual experiences, such as our appreciation of picturesque scenery. As a noun it most commonly denotes the principles or philosophy of aesthetic judgements, particularly for fine art and beauty.18 Art and aesthetics are overlapping but not identical realms: we can create art to admire for its beauty, yet also appreciate the aesthetic of non-artistic objects or activities, as well as like art for non-aesthetic reasons. The meaning of both art and aesthetics altered significantly over the 20th century, as conceptual and performance art movements ruptured the association of art with unique, physical objects,19 while aesthetics acquired a broader meaning relating to various expressive activities in the media, business and consumer culture.20 Sociologists have observed an increasing aestheticization of 15 D. Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice (University of California Press 2000) 28–36. 16 A. Palmer, ‘Legal Dimensions to Valuing Aesthetics in World Heritage Decisions’ (2017) 26 Social and Legal Studies 581; Richardson, Barritt and Bowman (n 13). 17 S. Huygebaert and others (eds), Sensing the Nation’s Law: Historical Inquiries into the Aesthetics of Democratic Legitimacy (Springer 2018). 18 R. Steckler, Aesthetics and the Philosophy of Art (Rowman and Littlefield Publishers 2010). 19 T. McEvilley, The Triumph of Anti-Art: Conceptual and Performance Art in the Formation of Post-Modernism (McPherson and Company 2005). 20 A. Strati, Organization and Aesthetics (Sage 1999) 184–8.

252  Research handbook on transnational environmental law society, especially in the West, where consumers are inundated with aesthetic spectacles – or ‘simulacra’, as Jean Baudrillard calls them – such as those associated with shopping malls, theme parks, TV reality shows, ubiquitous advertising and other realms that obfuscate the distinction between fact and fiction.21 Aesthetics has also been increasingly associated with everyday activities, from gardening to cooking, argues Yuriko Saito,22 as well as inhering in the ‘atmosphere’ of specific spaces or realms, from a wedding to a sports game, theorizes Gernot Böhme.23 Aesthetics has also penetrated the world of legal governance. A variety of international environmental treaties refer to aesthetic values, though few take aesthetics seriously relative to scientific and economic concerns. One that does is the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), which can protect nominated places of outstanding natural beauty.24 Other place-based treaties, like the European Landscape Convention25 and the Madrid Protocol on Environmental Protection to the Antarctic Treaty,26 have a clear mandate for identifying and protecting natural aesthetics, but their implementation depends substantially on action at the national level. Non-place-based instruments, such as the UN Framework Convention on Climate Change (UNFCCC)27 and the Paris Agreement,28 may deal with aesthetics indirectly, such as by encouraging parties to promote the arts within public education and to stipulate consideration of aesthetic criteria for local decision making, as in the context of deciding on climate adaptation measures. However, none of this transnational governance, even the World Heritage Convention, provides authoritative guidance on what specifically constitutes aesthetic value. For environmental governance scholars, the ensuing question is thus on what basis should judgements about environmental aesthetics be made, whether for evaluating the scenic qualities of landscapes that the law will protect or disciplining corporate environmental marketing? The colloquial refrain that ‘beauty is in the eye of the beholder’ evokes a truism that aesthetic taste is mediated by our subjective and cultural contexts.29 Equally plausible, aesthetic judgements are capable of being reasoned and defended, enabling an objective aesthetics to emanate not from unanimity of opinion but at least a socially legitimate process of identifying and evaluating aesthetic merit. Some commentators call this a ‘social aesthetics’.30 The question then arises: what defensible rationale for aesthetic judgements on environmental issues can be given? The Kantian theory of ‘disinterested’ aesthetic appreciation, J. Baudrillard, Simulacra and Simulation, trans. S.F. Glaser (University of Michigan Press 1994)

21

79.

22 Y. Saito, Aesthetics of the Familiar: Everyday Life and World-Making (Oxford University Press 2017). 23 G. Böhme, The Aesthetics of Atmospheres (Routledge 2016). 24 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151, Art. 2. 25 European Landscape Convention (20 October 2000) European Treaty Series, No. 176. 26 Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 5778. 27 United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107, Art. 6. 28 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740, Arts 11–12. 29 S. Tate, Black Beauty: Aesthetics, Stylization, Politics (Ashgate 2009). 30 J. McMahon (ed.), Social Aesthetics and Moral Judgement (Routledge 2018).

Art and activism in transnational environmental governance  253 untainted by collateral utilitarian or instrumental concerns, 31 has been a powerful influence in the philosophy of aesthetics but it does not aid this chapter’s enquiry because activist art is designed not for ‘disinterested’ pleasure but to arouse public concern and leverage political action. Some bespoke theories of environmental aesthetics and art criticism have helped to overcome this lacuna. One is the ‘cognitive model’. Associated primarily with philosopher Allen Carlson, it postulates that proper aesthetic comprehension requires some knowledge of the natural sciences, which guide the viewer to the appropriate elements of aesthetic significance, such as those associated with the botanical or zoological features of biodiversity.32 On this basis, we might infer that effective arts activism in transnational environmental governance requires concomitantly educating the public with adequate scientific know-how, such as climate change science or conservation biology, as many environmental NGOs do. The cognitive model has some limitations, however, as some aesthetic experiences, for example observing a sunset or hearing a bird’s song, seem to inspire at a more emotional or intuitive level. An alternative theory, associated with Arnold Bearleant and Yuriko Saito, emphasizes personal ‘engagement’ where aesthetic value derives from the active participation in nature of the experiencing agent rather than she being a detached spectator, a stance that helps to overcome the ‘otherness’ of nature.33 The environment thus becomes no longer something just to ‘look at’ but a multi-sensory experience: the aroma of flowers, the melody of the dawn chorus or a gust of wind. Defensible aesthetic judgements thus flow not from specialist knowledge but from being immersed in the natural world. This position has implications for environmental governance because it implies opportunities for public access to nature, such as attainable by ‘right to roam’ laws.34 In our dominant urban demography, where many have limited access to experience nature’s aesthetic diversity and richness, the arts can play a mediating role, engaging the public in distant geographies or future times beyond one’s sensory realm. William Fox and T.J. Demos advocate artistic practices that critically interrogate and expose the cultural and institutional forces driving environmental degradation.35 The arts ‘can play a central transformative role’, believes Demos, in leveraging ‘creative perceptional and philosophical shifts’ that challenge the ‘destructive traditions of colonizing nature’.36 Rob Nixon, interested in the connections between poverty and environmental hardship, implores artists to deploy ‘their imaginative ability and worldly ardour to help amplify the media-marginalized causes of the environmentally dispossessed’.37 Timothy Morton champions the arts for their power to help people reim I. Kant, Critique of Judgment, trans. J.H. Bernard (Cosimo 2007; original 1790). A. Carlson, Aesthetics and the Environment: The Appreciation of Nature, Art and Architecture (Routledge 2000). 33 Saito (n 22) 51, 53–4; A. Berleant, Living in the Landscape: Towards an Aesthetics of Environment (University of Kansas Press 1997). 34 J. Anderson, ‘Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks’ (2006–07) 19 Georgetown International Environmental Law Review 375. 35 T.J. Demos, Against the Anthropocene: Visual Culture and Environment Today (Sternberg Press 2017); W. Fox, ‘The Art of the Anthropocene’ in J. Newell, L. Robin and K. Wehner (eds), Curating the Future: Museums, Communities and Climate Change (Earthscan 2017) 196. 36 T.J. Demos, Decolonizing Nature: Contemporary Art and the Politics of Ecology (Sternberg Press 2016) 19. 37 R. Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011) 5. 31

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254  Research handbook on transnational environmental law agine their place in nature for a better environmental future.38 He sees the arts having a special role to help people grasp environmental upheavals that manifest over temporal and spatial scales that dwarf human perception.39 For global environmental governance, the arts thus offer a crucial mediating role in helping societies to become more sensitized to the environmental upheavals of the Anthropocene, and building the political constituency for action.

3

ENVIRONMENTAL ART AND GOVERNANCE

The arts have a history of engaging with environmental themes, from decorative representation of scenic beauty to advocacy for nature conservation. Distinctive genres of landscape painting have flourished for centuries, and during the Romanticism movement of the 18th century several pictorial styles emerged that helped render a more benign and appealing view of the natural world.40 During the 20th century, environmental art embraced a wider array of media and themes that opened new ways of thinking about humankind’s place in nature. In the 1960s, a movement in ‘Land Art’ (also called Earth Art) promoted art that ‘entered’ rather than merely depicted nature, using it literally as the canvas for their monumental sculptures. 41 With a lighter touch, another stream of ‘walking’ artists documented their perambulations through the countryside, notably Hamish Fulton and Richard Long.42 Long would leave an ephemeral path on a landscape by walking back and forth for several hours (e.g., A Line in the Himalayas, 1975). Another genre sought to harness art as a literal means of environmental restoration, with art actively partaking in nature’s renewal. For example, Alan Sonfist’s Time Landscape, begun in 1965, sought to re-vegetate a derelict lot in New York City. Some artists engage more explicitly with environmental mayhem, rejecting artistic approaches where ‘nature ends up objectified as an ontology divorced from social, political and technological processes’, explains Demos.43 Climate change has become a major preoccupation of these artists, who depict coral bleaching, polar melting, climate refugees and wildlife extinctions, as well as the politics of climate governance and inaction.44 Zaria Forman has painted dramatically realistic images of icebergs melting and disintegrating.45 Focusing on marine environments, Courtney Mattison created huge sculptural renderings of coral reefs, made from porcelain and stones, with the aim to ‘inspire policy makers and the public to conserve our changing seas’.46 Some music also has engaged with climate change: Kyoto

38 T. Morton, Ecology without Nature: Rethinking Environmental Aesthetics (Harvard University Press 2007). 39 T. Morton, Hyperobjects: Philosophy and Ecology after the End of the World (University of Minnesota Press 2013).‬ 40 C. Casaliggi and P. Fermanis, Romanticism: A Literary and Cultural History (Routledge 2012) 119–20. 41 J. Kastner (ed.), Land and Environment Art (Phaidon 1998). 42 See M. Hartmann and R. Long, Richard Long: From Time to Time (Hatje Cantz Verlag 1997) and A. Goldsworthy, Wood (Viking 1996). 43 Demos (n 36) 44. 44 R. Taplin, ‘Contemporary Climate Change Art as the Abstract Machine: Ethico-Aesthetics and Futures Orientation’ (2014) 47 Leonardo 509. 45 See www​.zariaforman​.com. 46 Courtney Mattison, ‘About’, http://​courtneymattison​.com/​about.

Art and activism in transnational environmental governance  255 Now, released in 2002 by US rock group Bad Religion, became an anthem for some activists championing the Kyoto Protocol.47 Some of these efforts are coordinated through organizations and networks dedicated to engaging the public on environmental concerns through art. The Australian-based CLIMARTE has the mission of ‘harnessing the creative power of the arts to inform, engage and inspire action on climate change’.48 It works with artists, arts-sector bodies, patrons and scholars for the exchange of ideas and public engagement for climate action. A similar group in the UK is Cape Farewell, launched in 2001 to ‘engage artists for their ability to evolve and amplify a creative language, communicating on a human scale the urgency of the global climate challenge’.49 Going beyond the visual arts, ‘Music for a Warming World’, launched in 2016,50 is a global collaboration that uses ‘both large scale immersive visuals, live music … and a narrative arc that takes audiences on a guided journey through the climate challenge’.51 To maximize their impact, some of these groups time their interventions to coincide with key global intergovernmental meetings, such as at the UNFCCC Conferences of the Parties (COP). The official programme to the 2009 Copenhagen COP included an art exhibition, RETHINK, Contemporary Art and Climate Change, featuring 26 works of international contemporary artists on climate change, in four precincts of the Danish capital.52 At the Cancun COP in 2010, the creative dimension achieved greater visibility through street art, murals and other participatory interventions facilitated by 350.org, whose leader Bill McKibben announced that ‘art can help us understand differently than science, the threat that global warming poses to our planet’.53 Shortly before the Cancun COP, 350.org organized the ‘Earth Art’ festival, staged in 20 locations around the world.54 The release of major reports from the Intergovernmental Panel on Climate Change (IPCC) has attracted similar attention from artists. The Live Earth music concerts held in 12 major global cities in 2007 sought to raise awareness about climate change to coincide with the issuance of the IPCC’s Fourth Assessment Report.55 Additionally, an artistic side to transnational environmental activism is increasingly evident in the public identity of NGOs. They bring a distinctive aesthetic to their work through their campaign banners, murals and even colourfully painted ships (e.g., the Rainbow Warrior and Sea Shepherd). Renowned for its publicity stunts and brazen tactics, Greenpeace has been described as a ‘theatre company’.56 Environmental groups’ aesthetic campaigning is often

47 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162. 48 CLIMARTE, https://​climarte​.org. 49 See www​.capefarewell​.com/​about​.html. 50 See www​.musicforawarmingworld​.org. 51 S. Kerr, ‘Climate, Culture and Music: Coping in the Anthropocene’ (2018) 37(2) University of Tasmania Law Review 169. 52 See www​.rethinkclimate​.org. 53 Quoted from A. Audouin, ‘Art and COP History’, www​.aliceaudouin​.com/​art​-of​-change​-21​-2/​art​ -and​-cop​-history. 54 Environment News Service, ‘Giant Earth Art Displays Dramatize Climate Urgency’ (Environment News Service, Cancun, 26 November 2010), www​.ens​-newswire​.com/​ens/​nov2010/​2010​-11​-26​-02​ .html. 55 ‘Live Earth Concerts Will Strengthen Awareness’ (The New York Times, 6 July 2007), www​ .nytimes​.com/​2007/​07/​06/​news/​06iht​-06oxan​-liveearth​.6529646​.html. 56 S. Durland, ‘Witness the Guerrilla Theater of Greenpeace’ (1987) 40 High Performance 31.

256  Research handbook on transnational environmental law complemented with figurative word plays – posters and stickers that proclaim ‘think globally, act locally’, ‘small is beautiful’ and ‘feed the planet and it will nourish you’. Extinction Rebellion (XR) is the newest global environmental activist phenomenon, and its transnational scope and artistic oeuvre make it highly relevant to this discussion. Born out of frustration with the lack of progress on climate change, the XR diaspora coalesces around the goals of getting governments to tell the truth about the climate emergency, to act now on rapid elimination of fossil fuels, and to create new citizens’ assemblies for climate and ecological justice.57 XR activism draws heavily on aesthetic strategies, including artistically curated street performances. One that I was involved in recently was a protest about recent catastrophic bushfires in Australia, with XR members symbolically placing burnt forest logs on the doors of the Tasmanian Parliament (see Figure 15.2).

Source:

Photograph by Benjamin J. Richardson.

Figure 15.2

Protest about Australian bushfires inaction, XR Tasmania, Hobart, Tasmania, 10 January 2020

Extinction Rebellion, https://​rebellion​.earth.

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Art and activism in transnational environmental governance  257 Like culture jamming, XR often injects fun and humour into its protests to enliven participants’ mood and foster hope. One example is ‘discobedience’, a non-violent dance act performed in public spaces, with the BeeGees’ ‘Stayin’ Alive’ 1977 hit song being used in the example shown in Figure 15.3, which was performed in Hobart, Tasmania. Such antics do not in themselves communicate any message about the climate crisis, but they effectively attract public attention that is then engaged by XR organizers to recruit new members and distribute further information, as well as used in subsequent social media campaigns.

Source:

Photograph by Benjamin J. Richardson.

Figure 15.3

‘Discobedience’ protest, XR Tasmania, Hobart, Tasmania, 18 January 2020

Environmental NGOs may also collaborate with professional artists to influence public opinion and spur political action. Campaigns to stop dams and mines frequently appeal to the sensuous imagery and sounds of the threatened environments. Peter Dombrovskis’ photographs of Tasmania’s Franklin River were used by activists to help challenge a hydropower impoundment proposed in the early 1980s.58 His iconic Morning Mist. Rock Island Bend, Franklin River (1982) was placed in full-page advertisements in national newspapers commissioned by the Wilderness Society, with the caption: ‘Could you vote for a party that will destroy this?’ The tactic helped win support for anti-dam political candidates in the Australian parliamentary elections of that time. As a remote wilderness that very few Australians can

58 T. Bonyhady, ‘No Dams: The Art of Olegas Truchanas and Peter Dombrovskis’ in R. Butler (ed.), The Europeans: Emigré Artists in Australia 1930–1960 (National Gallery of Australia 1990) 236.

258  Research handbook on transnational environmental law ever visit, the artistic representation of its aesthetic qualities was essential to engage a national audience. Such efforts, however, have not always prevailed. Iceland’s infamous Kárahnjúkar hydropower dam, located in previously unspoilt terrain on the edge of the Vatnajökull National Park, is one example. Construction of the massive dam, which began in 2002 and inundated two wild rivers, aroused intense opposition that centred on the landscape’s stunning scenery. Photographic representation of the area was placed on a website, as well as being shown in a major Icelandic newspaper and a shopping mall, which gave the campaign extensive publicity. Importantly, the photography not only showcased the typical motifs of dramatic scenery that Iceland is renowned for, but also introduced the public ‘to beauty of a more delicate nature: to small-scale artworks of rocks, water, plants, birds and animals’.59 Nonetheless, the dam went ahead despite being rejected by the Icelandic Planning Committee, as Icelandic political forces favoured the economic benefits the project was perceived to bring in powering an aluminium smelter.

4

CULTURE JAMMING AND TRANSNATIONAL ENVIRONMENTAL ACTIVISM

A more confrontational artistic practice used in some environmental and social activism is known as ‘culture jamming’.60 Inspired by the technique of radio jamming for military or political purposes, the term ‘culture jamming’ emerged in the 1980s to describe a variety of artistic activist work that confronts the deceptive aesthetics of business and governments and highlights their links to environmental damage or social injustice. Led by critical artists partnering with environmental NGOs, it provides a form of non-state governance that shapes public debate and increases accountability, and may in turn help promote actual policy and legal changes. Culture jamming is one of a number of forms of social activism used for environmental purposes, such as consumer boycotts and fossil fuels divestment, and while it can overlap with the agenda of these campaigns, it also differs because of its explicit aesthetic approach. Drawing on the traditions of street art and media pranks,61 and the growing importance of taking art out of galleries and into public spaces,62 culture jamming actions typically involve artists hijacking billboards, reconfiguring logos and parodying advertisements to radically subvert their messages. The art typically involves colourful, figurative, sculptural and performative elements that are collectively authored without official authorizations. What makes this cultural sabotage so striking is that it ‘makes use of a corporation’s own method of communication to send a message starkly at odds with the intended one’.63 K. Benediktsson, ‘Moving Places: The Emotional Politics of Nature’ in B. Granås and J.O. Bærenholdt (eds), Mobility and Place: Enacting Northern European Peripheries (Ashgate 2008) 205, 212. 60 N. Klein, No Logo: Taking Aim at the Brand Bullies (Picador 1998) 279–330; M. DeLaure and M. Fink (eds), Culture Jamming: Activism and the Art of Cultural Resistance (New York University Press 2017). 61 N. Ganz, Graffiti World: Street Art from Five Continents (Harry N. Abrahams 2004). 62 J. Lossau and Q. Stevens (eds), The Uses of Art in Public Space (Routledge 2015). 63 M. Kohn, Brave New Neighborhoods: The Privatization of Public Space (Routledge 2004) 167. 59

Art and activism in transnational environmental governance  259 Crucial to such counter-aesthetics is the reclaiming of public spaces, such as town squares, sidewalks, bus stops and civic buildings, which have been encroached by ubiquitous corporate marketing. Such creative activism has been theorized by commentators such as Eleftheria Lekakis as reflective of a growing ‘political consumerism’ in which political values and acts are transferred to the marketplace ‘to resist and reuse the logic of appropriation’.64 As many public issues and social voices are marginalized by the dominance of market values and commercial communication, activists have had to turn to the market itself as a platform to express their grievances. Political consumerism has become particularly relevant to environmental activism because it seeks to expose the role of the market and rampant consumerism as drivers of ecologically unsustainable practices.65 One effort to reclaim public spaces in this manner was the 2014 ‘Flood Wall Street’ action (see Figure 15.4). Music, colourful banners, costumes and theatre enlivened a protest against the complicity of Wall Street financiers in the climate crisis, with the intervention timed to coincide with a United Nations summit for business and political leaders held in September 2014. It garnered considerable publicity. The New York Times reported that many of the demonstrators dressed in blue to symbolize a wave of water – water that could engulf the low-lying streets near the New York Stock Exchange, as the storm surge from the East River and New York Harbor did during Hurricane Sandy.66

The protestors also inflated a ‘carbon bubble’ balloon, which, with poignant irony, the police deflated on the horns of the famous Wall St bull sculpture. Though the police arrested many protesters, the charges against them were dismissed by the Manhattan court because their constitutional First Amendment civil liberties were deemed to have been violated.67 A few other examples show the range of culture jamming antics. After the 1989 Valdez oil spill caused by an Exxon Corporation tanker, the Billboard Liberation Front re-messaged two towering billboards in San Francisco to state ‘Shit Happens. New Exxon’.68 Thousands of commuters saw them. The US-based Earth First, known for its particularly radical stunts, has cut down unsightly billboards that promote consumption or defaced them by inscribing pro-environmental messages. The culture jamming activist duo Yes Men have been particularly successful, specializing in the impersonation of representations of business and government institutions to criticize their behaviours, and creating attention-grabbing humour from these hoaxes.69 Corporate logos are explicitly targeted in some actions; one Greenpeace action, involving a clean-up of a Philippines beach, exposed the businesses responsible for the plastic debris collected by creating a banner that read ‘Polluted by …’, prominently showing the 64 E. Lekakis, ‘Culture Jamming and Brandalism for the Environment: The Logic of Appropriation’ (2017) 15 Popular Communication: The International Journal of Media and Culture 311, 312. 65 J. Schor, ‘Towards a New Politics of Consumption’ in J.B. Schor and D.B. Holt (eds), The Consumer Society Reader (New Press 2000) 446. 66 C. Moynihan, ‘Climate Change Protesters Tangle with Police at Wall St’ (The New York Times, 22 September 2014), www​.nytimes​.com/​2014/​09/​23/​nyregion/​climate​-change​-protesters​-wall​-street​.html. 67 Sarah Lazare, ‘Not Guilty: Flood Wall Street Protestors Vindicated by Manhattan Court’ (Commons Dreams, 6 March 2015), www​.commondreams​.org/​news/​2015/​03/​06. 68 Billboard Liberation Front, ‘Shit Happens’ (August 1989), http://​ billboardliberation​ .com/​ shit​ .html. 69 J. Servin, ‘The Yes Men’ in R. Martin (ed.), The Routledge Companion to Art and Politics (Routledge 2015) 194, 197.

260  Research handbook on transnational environmental law

Source:

Photograph by Resa Sunshine; licensed under Creative Commons (CC).

Figure 15.4

‘Flood Wall Street’ protest, New York, 2014

logos of the companies identified through the clean-up audit.70 Against governments, culture jamming (known as ‘political jamming’) targets the political communications of the state. 71 One form uses street art to challenge dominant political ideology and reclaim public spaces. Following the US invasion of Iraq in 1990, a conflict that caused massive environmental pollution, street artist Ron English painted a giant image based on Picasso’s anti-war painting Guernica (1937) and placed it over a billboard near Times Square in New York.72 English’s version was emblazoned with the message ‘The New World Order’ written across it, and the defaced billboard image went viral on the internet. In 2002, Greenpeace launched a climate change campaign against the political backers of dirty oil, and used images, not of climate change impacts, but the Esso company logo and images of then US President George Bush to promote its message.73

S. King, ‘My Week on a Plastic Beach Helping to Name and Shame Its Polluters’ (Greenpeace Canada, 4 October 2017), www​.greenpeace​.org/​canada/​en/​story/​405/​my​-week​-on​-a​-plastic​-beach​ -helping​-to​-name​-and​-shame​-its​-polluters. 71 This discussion partially draws on B. Cammaerts, ‘Jamming the Political: Beyond Counter-Hegemonic Practices’ (2007) 21 Continuum: Journal of Media and Cultural Studies 71. 72 Ron English’s Popaganda, www​.popaganda​.com. 73 J. Doyle, ‘Picturing the Clima(c)tic: Greenpeace and the Representation Politics of Climate Change Communication’ in B. Schneider and T. Nocke (eds), Image Politics of Climate Change (Transcript Verlag 2014) 225, 239. 70

Art and activism in transnational environmental governance  261 Cyberspace has also become a major arena for culture and political jamming, as corporations and governments have acquired a significant online presence that relies less on billboards and TV commercials to engage the public. The internet is a mixed blessing for social activism. It has created a new digital public space that enables cheap and effective transnational collaboration through email, social media and webpages.74 While the internet empowers dissenting voices, it also just as strongly empowers listeners to tune out, by choosing their own web browsing and social media networks.75 The internet has also come under significant corporate and government control and gives these institutions greater means of surveillance to identify and prosecute those who infringe their intellectual property rights or pose a threat to ‘national security’.76 Even more seriously, in some countries, such as China and Iran, extensive internet censorship limits dissenting voices.

5

IMPACT AND INFLUENCE

The persuasive power of aesthetics in contemporary political life is reshaping how the world is governed.77 The advent of so-called ‘image politics’ is tied to the wider, hyper-aesthetic trends in cultures saturated with mass television and internet communications. In Picture Theory, W.J.T. Mitchell argues that Western culture has taken a ‘pictorial turn’ in which images have become the key means of social and political communication.78 Concurring, Mark Taylor and Esa Saarinen in Imagologies contend that ‘in our era, we must philosophize with images rather than concepts’.79 Image-based politics is not, however, viewed as inherently benign; Jean Baudrillard critiques the growing culture of spectacle, in which the public assumes the role of enfeebled spectator and consumer of a commodified ‘hyper-reality’.80 In this milieu, critical public debate is susceptible to being replaced by seductive corporate marketing and government propaganda. The solution, suggests social theorist Guy-Ernest Debord, is for citizen activists to transform the same aesthetic tools into retaliatory means of protest.81 In a media-inebriated culture, the use of images is as indispensable for social mobilization and advocacy as traditional means of civic activism such as street marches, petitions and rallies. Art can be used to communicate dissent, on its own or in combination with verbal and textual communication. In The Art of Moral Protest, James Jasper depicts artists on the ‘cutting edge of society’s understanding of itself as it changes’ by putting ‘into concrete form new ways of seeing and judging the world, new ways of thinking and feeling about it’.82 Images can enable esoteric discourses and ideas

M. McCaughey (ed.), Cyberactivism on the Participatory Web (Routledge 2014). Kohn (n 63), 210 (referring to Andrew Shapiro’s opinion). 76 Ibid, 215. 77 Notably K. DeLuca, Image Politics: The New Rhetoric of Environmental Activism (Routledge 2005). 78 W.J.T. Mitchell, Picture Theory: Essays on Verbal and Visual Representation (University of Chicago Press 1995). 79 M. Taylor and E. Saarinen, Imagologies: Media Philosophy (Routledge 1994) 15. 80 Baudrillard (n 21). 81 G. Debord, The Society of the Spectacle (Black and Red 1970). 82 J. Jasper, The Art of Moral Protest: Culture, Biography, and Creativity in Social Movements (University of Chicago Press 1999) 13 and 369. 74 75

262  Research handbook on transnational environmental law to be materially visible and knowable to a wider audience in society, injecting greater political salience into the concerns. Aesthetic activism, however, cannot replace a role for conversation and consultation, because a discourse of images needs to accommodate a space for audiences to respond and debate rather than just be recipients of artistic statements. Therefore, transnational environmental governance must be open to the influence of arts-based activism while nurturing forums and networks by which their participants and the wider public can critically assess and act on the environmental policy issues at stake. For instance, artists can sensationally convey the urgency of dealing with climate change, and help people to emotionally engage with it, but the hard choices about levels of greenhouse gas emission cuts or strategies to adapt to global warming must still be debated in global conferences, national legislatures and other governance spaces. Another body of scholarly research considers how the arts may actually influence environmental attitudes and behaviour.83 It suggests that art can convey information about environmental issues in interesting and novel ways that excite or intrigue audiences. Further, art can be morally persuasive, by creating empathy or compassion for the issues it addresses. A musical performance that contains a message about the menace of climate change might emotionally arouse listeners in a new way, unlike that experienced by reading an academic opinion. Exploring the power of the arts in climate change communications, Susanne Moser identifies the arts as fostering changes in social norms, motivating the public to act, and conveying the urgency of the challenges.84 Rob Rosenthal and Richard Flacks suggest that activist art, including music, can help by ‘framing’ ideas for the public that may reinforce or challenge prevailing assumptions.85 For now, the theorized hopes for counter-aesthetic activism exceed empirical evidence of its pedagogical or political efficacy. Of course, it is difficult, perhaps even impossible, to quantify the specific influence of environmental art or culture jamming given the complex methodological difficulties of correlating cause and effect. One starting point is to look for evidence of influence on public opinion. Some culture jamming antics have garnered significant publicity, a necessary precursor to having social and political influence. Brandalism caught the attention of the mainstream media, some with sympathetic reporting, including stories on Huffington Post and the BBC.86 A Yale University study of the effect of Live Earth 2007 on US public opinion concluded that the concert ‘did reinforce and amplify attitudes about global warming among those watchers who were already concerned, while having a smaller impact on other watchers’.87 Another study assessed ‘the influence of environmental art on individual willingness to purchase voluntary carbon offsets’.88 The researchers, Julia Blasch and Robert

D. Curtis, N. Reid and I. Reeve, ‘Towards Ecological Sustainability: Observations on the Role of the Arts’ (2014) 7 S.A.P.I.EN.S. Surveys and Perspectives Integrating Environment and Society 1. 84 S. Moser, ‘Communicating Climate Change: History, Challenges, Process and Future Directions’ (2010) 1 Wiley Interdisciplinary Reviews: Climate Change 31. 85 R. Rosenthal and R. Flacks, Playing for Change: Music and Musicians in the Service of Social Movements (Routledge 2010). 86 Cited in Lekakis (n 64) 318. 87 Yale University, Gallup, and Clear Vision Institute, Surveying the Impact of Live Earth on American Public Opinion (Yale Project on Climate Change Communication 2007) 5. 88 J. Blasch and R. Turner, ‘Environmental Art, Prior Knowledge about Climate Change, and Carbon Offsets’ (2016) 6 Journal of Environmental Studies and Sciences 691. 83

Art and activism in transnational environmental governance  263 Turner, found that the ‘respondents who were shown photographs [from an arts group] that illustrate the impacts of climate change were more likely to purchase carbon offsets than were respondents in a control group’.89 Through publicity and shaping public opinion, the arts and culture jamming may help to undermine the targeted companies’ social licence, and thereby exert governance-like discipline to the extent that affected businesses are compelled to genuinely improve their environmental performance.90 There may also be adverse economic repercussions from consumers or investors. One closely studied example is the Yes Men’s impersonation of Dow Jones on the BBC, which gave the story about the Bhopal tragedy direct media access and extensive publicity, and the company’s share price temporarily plunged by 4 per cent. But the long-term effect of this hoax may have been minimal; researchers found that, ironically, the hoax appeared to reduce media coverage of the underlying environmental and health consequences of the Bhopal disaster because attention shifted to the Yes Men themselves.91 Other evidence suggests that culture jamming can sometimes hurt targeted businesses through public shaming. One example is Greenpeace’s video parodying of a Kit Kat commercial in 2010. The clip features a tired office worker who, upon hearing the brand’s famous slogan ‘Have a break’, opens a Kit Kat wrapper to find, not fingers of chocolate, but the bloodied finger of an orang-utan. The ‘advert’ closes with viewers urged to ‘give the orang-utan a break’.92 The prank was intended by Greenpeace to expose Nestlé’s buying of palm oil (a key ingredient in Kit Kats and other products it makes) from destroyed rainforests, once home to these apes and many other species. Nestlé was put on the back foot by the Greenpeace stunt, which quickly went viral across the internet. Within eight weeks the company had agreed to Greenpeace’s demands to change suppliers of palm oil.93 Another success story is anti-coal campaigner Jonathan Moylan, who in 2014 distributed a fake ANZ bank media release causing an AUD$300 million slump in the share-market value of Whitehaven, a coal mining company.94 Moylan’s goal was to publicize ANZ’s support for an environmentally controversial mining project in Australia proposed by Whitehaven. Although the company’s stock price recovered and the mine project went ahead, the publicity was damaging for ANZ, which has since tightened its lending criteria for coal mining projects. And although Moylan was successfully prosecuted by the authorities for disseminating false information to the market, this simply gave his cause even greater publicity.95 Efforts by companies to counteract culture jamming pranks can also backfire. Multinational coal mining giant Ibid, 702. N. Hall and others, ‘Social Licence to Operate: Understanding How a Concept Has Been Translated into Practice in Energy Industries’ (2015) 86 Journal of Cleaner Production 301. 91 N. Robinson and G. Castle Bell, ‘Effectiveness of Culture Jamming in Agenda Building: An Analysis of the Yes Men’s Bhopal Disaster Prank’ (2013) 78 Southern Communication Journal 352, 363. 92 P. Armstrong, ‘Greenpeace, Nestlé in Battle over Kit Kat Viral’ (CNN, 20 March 2010), http://​ edition​.cnn​.com/​2010/​WORLD/​asiapcf/​03/​19/​indonesia​.rainforests​.orangutan​.nestle/​index​.html. 93 Y. Sheffi, ‘Profits v Planet: Can Big Business and the Environment Get Along?’ (The Guardian, 7 September 2018), www​.theguardian​.com/​environment/​2018/​sep/​07/​profits​-v​-planet​-can​-big​-business​ -and​-the​-environment​-get​-along. 94 S. McVeigh, ‘“I Wanted to Stop the Mine”: Jonathan Moylan and the $300 Million Hoax’ (ABC (Triple J), 3 October 2017), www​.abc​.net​.au/​triplej/​programs/​hack/​jono​-moylan/​9010874. 95 L. Hall, ‘Jonathan Moylan Avoids Jail Term for Fake ANZ Media Release about Whitehaven Coal’ (Sydney Morning Herald, 25 July 2014), www​.smh​.com​.au/​national/​nsw/​jonathan​-moylan​-avoids​ -jail​-term​-for​-fake​-anz​-media​-release​-about​-whitehaven​-coal​-20140725​-zwwe7​.html. 89 90

264  Research handbook on transnational environmental law Xstrata sought to remove from YouTube a parodied mining commercial, which was created as part of an Australian trade union campaign against environmentally destructive mining, but Xstrata’s demands simply reignited public interest and other YouTube users promptly reloaded the video on the Web.96 The impact of counter-aesthetic strategies should also be assessed against changes in government policy and law. Culture jamming aims not only to expose corporate malfeasance and enable consumers to make informed decisions; it also serves to reduce the legitimacy of business in order to achieve better government laws and policies. At times, governments themselves are the primary target of ‘political jamming’ actions. One notable success is the Australian BUGA-UP group, which in the late 1970s began to deface tobacco and alcohol billboards with graffiti in order to end their public advertising. Its efforts were instrumental not only in achieving legal bans in Australia, the first major country to prohibit tobacco advertising, but even in helping ‘reframe the global debate about tobacco control’.97 However, correlating the influence of aesthetic activism on global-level environmental governance is exceedingly difficult given the vast number of variables and time lags. For now, the governance influence of the arts and culture jamming can be plausibly delineated into several distinct patterns of activity. First, artists are engaging with stakeholders beyond the traditional galleries and museums of the arts world, for example, by collaborating with activist NGOs to help publicize their art and combine it with their political lobbying and community engagements. Collaborations between 350.org and climate artists, and protest art around the COPs, are pertinent examples identified in this chapter. Such cross-disciplinary collaborations can enrich opportunities for garnering media attention, reaching wider audiences and leveraging changes in public attitudes. Artists offer different ways of perceiving and understanding transnational environmental issues, enabling audiences to see and feel the connections between their lifestyles and ultimate environmental impacts, such as marine plastic pollution or climate change, otherwise obscured from their sensory realm. This wider sensory stimulation, in which people can better relate to their global context, is crucial for building a transnational culture to underpin transnational environmental governance. Secondly, environmental art is sometimes communicated through global forums, such as multinational music concerts and arts festivals, and thus caters to a culturally diverse audience in a manner consistent with the goals of transnational environmental governance to forge a shared agenda for collectively pursued targets. Such art also disseminates through global online forums including social media, NGOs’ websites and other platforms, which give it vast reach as a tool for shifting values and stirring public action. Furthermore, unlike spoken or written languages, many forms of visual arts and music are universally or widely cognizable across diverse cultures, thus enabling these global forums, like Live Earth 2007, to touch a transnational audience concretely. Thirdly, timing is an important feature of art and culture jamming, as its dissemination is often staged to coincide with important meetings and events associated with global govern-

96 B. Butler, ‘Xstrata Parody Leaves Mining Giant Fuming Yet Again’ (Sydney Morning Herald, 24 April 2012), www​.smh​.com​.au/​business/​xstrata​-parody​-leaves​-mining​-giant​-fuming​-yet​-again​ -20120423​-1xhac​.html. 97 L. Partridge and A. Chesterfield-Evans, ‘BUGA UP Founder Made Unique Push to Ban Tobacco Advertising’ (Sydney Morning Herald, 20 March 2018), www​.smh​.com​.au/​national/​buga​-up​-founder​ -made​-unique​-push​-to​-ban​-tobacco​-advertising​-20180318​-h0xmmj​.html.

Art and activism in transnational environmental governance  265 ance, such as a COP or the release of an IPPC report, which can maximize the message of artists and jammers in the mass media and for policy makers specifically. Well-timed artistic interventions may have greater impact on environmental decision making, such as negotiation of a treaty, by intensifying media coverage and public scrutiny. The short-termist outlook of government negotiators, forever mindful of their national political fortunes, creates opportunities for such interventions to have political impact.

6 CONCLUSIONS Aestheticized activism is designed as a means to improve public consciousness and dialogue with an agenda of altering environmental governance from local to global scales. Culture jammers and artists have the ability to raise issues that are purposely kept out of public knowledge, from corporate malfeasance to government intransigence, as well as to alter how we perceive available knowledge, be it climate science or biodiversity conservation data. As a governance strategy, this field taps into the visceral emotional and cultural power of aesthetics as reflected in enduring adages such as ‘seeing is believing’, ‘a picture tells a thousand words’ and ‘where words fail, music speaks’. Because culture jamming and arts activism face legal impediments of their own, including diminishing access to public spaces, restrictions on freedom of speech, defamation law, and companies’ stentorian enforcement of their intellectual property rights, reclaiming and protecting the public sphere for community discourse and aesthetic expression are crucial. The public sphere is a vital realm for political discourse and civic action insulated from the economy and state apparatus.98 Public spaces, such as town squares, plazas, parks, sidewalks and other areas open for people to freely mingle and converse, are threatened by aestheticized commerce and consumerism that enjoys legal protection. Shopping malls, which have become one of the primary ‘public’ gathering places in modern society, with over 45,000 established in the US since the 1950s,99 are in fact commonly managed by their proprietors as private spaces with restrictions placed on what patrons can wear, say or do, as policed by private security forces. Anti-protest legislation, adopted or strengthened in several Australian states recently, partly in response to the surge of activism under Extinction Rebellion, is another legal contrivance that is shrinking the public space in which one can challenge unscrupulous business practices.100 Consumer and investor protection law is also being used to silence culture jammers (as against the greenwashing companies). For instance, Jonathan Moylan was charged under the Australian Corporations Act 2001 (Cth) for making false and misleading statements associated with his prank against the ANZ bank and the Whitehaven coal mining company.101 Through these and other legally sanctioned stances, ‘the opportunities for political conversation are diminished’ explains Margaret Kohn.102 Public speaking, demonstrations, 98 H. Arendt, The Human Condition (University of Chicago Press 1958); J. Habermas, The Structural Transformation of the Public Sphere, trans. T. Burger (MIT Press 1991). 99 W. Kowinski, The Malling of America: Travels in the United States of Shopping (Xlibris 2002). 100 C. Wahlquist, ‘“Incredibly Worrying”: Legal Fight Looms in Australia over Clampdown on Protest’ (The Guardian, Australian edition, 6 October 2019), www​.theguardian​.com/​world/​2019/​oct/​06/​ incredibly​-worrying​-legal​-fight​-looms​-around​-australia​-over​-clampdown​-on​-protest. 101 Hall (n 95). 102 Kohn (n 63) 2.

266  Research handbook on transnational environmental law leafleting and petitioning, which allow for direct engagements and live debates, are being pushed further aside. While the internet has created a new type of public space, as discussed earlier in this chapter, it has limitations in substituting for intimate and direct encounters. As Kohn succinctly explains, ‘face-to-face political debate allows for citizens to ask questions and challenge answers’.103 Thereby, a tension emerges between national and transnational governance whereby the former constrains activism and debate on environmental issues and other public issues while supranational law increasingly affirms the value of civil liberties and public participation. In environmental governance, public participation and dialogue are crucial at several stages, from the formation of regulation to accountability for its enforcement, as recognized by the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. 104 Yet, these orderly, official processes of participation, be they in courtrooms or public consultation forums, are insufficient for leveraging critical activism, especially in transnational governance, which typically does not offer the same level of opportunities for public input as in domestic legal systems. Furthermore, corporate governance does not provide opportunities for the broader public, let alone specific stakeholders, to have a voice in the environmental policies and practices of business. The task for domestic lawmakers is thus to go beyond providing participation nodes in environmental legislation to protecting the broader public sphere as a space for critical discourse and activism. This will require multiple strategies across intellectual property law, defamation law, advertising regulations, freedoms of expression and association and so forth, which have some bearing on the space for creative ardour and political protest. What this means for transnational environmental governance is to acknowledge that it cannot escape the relevance and impact of national legal systems, even though transnational developments influence lawmaking by nation states. Culture jamming has strong transnational reach, and can assist transnational mechanisms of dissemination, but its practitioners remain susceptible to the discipline of the states in their jurisdiction. In closing these brief reflections on future governance directions, we must appreciate that improving the legal milieu for culture jamming and arts activism will not solve everything. Counter-aesthetics alone is unlikely to change the environmental policies and laws of governments or international organizations. The arts are absolutely vital for their visceral contribution to public discourse and opening human imagination to novel and interesting ways for critiquing environmental practices. But the arts depend on other actors and processes taking additional steps to transform corporate and government behaviour, such as public interest litigation or drafting new environmental codes. As Chinese artist Ai Weiwei puts it, ‘art is a social practice that helps people to locate their truth’,105 and thereby this may help make business moguls and politicians accountable for their environmental follies.

Ibid, 4. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447. 105 Ai Weiwei, ‘Ai Weiwei: “Every Day in China, We Put the State on Trial”’ (The Guardian, 16 April 2013), www​.theguardian​.com/​commentisfree/​2013/​apr/​15/​ai​-weiwei​-china​-state​-on​-trial. 103 104

PART V CROSSING JURISDICTIONAL AND DISCIPLINARY BORDERS

16. Sovereignty, unilateralism, and the transboundary reach of environmental protection An Hertogen

1 INTRODUCTION It may be surprising to find a discussion of sovereignty in a book dedicated to transnational environmental law (TEL). After all, sovereignty, combined with the allocation of prescriptive jurisdiction primarily based on a state’s territory, is a key concept of international law rather than of transnational law. Moreover, if transnational law is understood as norms produced by non-state actors, it challenges what constitutes ‘law’ in a legal system1 and transcends questions of sovereignty or of the boundaries of states’ lawmaking powers under international law. If, however, transnational law is understood as the law that governs ‘actions or events that transcend national frontiers’,2 it directly challenges international law’s core structure built on the idea that states exercise exclusive sovereignty within, and jurisdiction over, their territory subject to limits imposed by international law. This chapter understands transnational law in the latter sense. As an implication, it does not exclude states as potential authors of transnational law.3 The particular focus of this chapter is on the unilateral exercise of prescriptive jurisdiction, or the lack thereof, that has an impact on other states. Although unilateral regulation is said to be the ‘essence of sovereignty’,4 it is also criticized for infringing other states’ sovereignty. Thus, to the extent that transnational law involves unilateral state action (or inaction), it has an ‘uneasy relationship’ with international law.5 This chapter explores that uneasy relationship to argue that a productive and mutually beneficial relationship can exist between transnational and international law. This is so because the experience of TEL sheds light on how states exercise prescriptive jurisdiction and which exercises tend to be criticized as unwarranted ‘unilateralism’. These insights allow us to explore questions about the boundaries contemporary international law should impose on the exercise of jurisdiction and to assess whether these boundaries fit the purpose of achieving environmental protection. In this sense, TEL V. Heyvaert, Transnational Environmental Regulation and Governance: Purpose, Strategies and Principles (Cambridge University Press 2018) 182. 2 P. Jessup, Transnational Law (Yale University Press 1956) 2. For an overview of different conceptions of transnational law, see G. Shaffer, ‘Transnational Legal Process and State Change’ (2012) 37 Law & Social Inquiry 229, 233–6; R. Cotterrell, ‘What Is Transnational Law?’ (2012) 37 Law and Social Inquiry 500, 501–2. 3 D. Bodansky and G. Shaffer, ‘Transnationalism, Unilateralism and International Law’ (2012) 1 Transnational Environmental Law 1, 32. 4 D. Bodansky, ‘What’s So Bad about Unilateral Action to Protect the Environment?’ (2000) 11 European Journal of International Law 339, 340. 5 Bodansky and Shaffer (n 3) 31. 1

268

Sovereignty, unilateralism, and the transboundary reach of environmental protection  269 can help international law in developing a more sophisticated approach to sovereignty and jurisdiction. Such an approach in turn enables, and increases the legitimacy of, state-enacted TEL under international law by clarifying when a state can invoke its sovereignty to justify unilateral actions and when other states can claim that unilateral actions intrude on their sovereignty. In doing so, international law can help ‘guard against the self-serving unilateral use of transnational environmental law’6 without unduly restricting transnationalization where this contributes to transboundary environmental protection. The chapter starts by exploring the meaning of unilateral state regulation as used in this chapter, and then analyses the tension between sovereignty, unilateralism, and environmental protection. It then looks at the various techniques through which international law has aimed to accommodate this tension.

2

UNILATERAL STATE REGULATION

Before delving into the question of how concepts such as sovereignty and jurisdiction curtail unilateral state regulation, and whether, and if so how, these concepts have evolved to accommodate at least some unilateral state regulation and by extension have influenced TEL, this section unpacks the meaning of unilateral state regulation. For the purposes of this chapter, I use the term unilateral state regulation to refer to a state’s exercise of prescriptive jurisdiction independently of any other state or international organization.7 The focus on the exercise of prescriptive jurisdiction excludes from the discussion one-off unilateral actions (such as the bombing of the Torrey Canyon, done to mitigate the impact of a specific, ongoing situation) and is warranted by this book’s broader focus on transnational environmental law. A shared feature of the unilateral exercise of prescriptive jurisdiction studied in this chapter, and the reason why its outcomes qualify as transnational law, is the transboundary application, intentional or not, of these outcomes on actors based in another state. The transboundary application of domestic regulation is intentional when a state regulates the overseas activities of those present within its territory and sanctions non-compliance through its domestic courts, or when a state denies market access to traded goods or services that fail to comply with its regulations. The famous WTO US–Shrimp case,8 discussed later in this chapter, provides an example of both. The United States (US) required US shrimpers to use ‘turtle excluding devices’ when fishing in areas where endangered sea turtles were likely to be present, including on the high seas. Similarly, shrimp imports caught by non-US vessels required that the originating nation had comparable regulations in place, if the endangered turtle species were present in its territory. In both scenarios, there is arguably a territorial link with the state – here the US – through the presence of the actor or the importation, even if the regulated activities are outside its territory.9

Ibid, 32. Bodansky (n 4) 340. 8 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body (6 November 1998) WT/DS58/AB/R. 9 J. Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 American Journal of Comparative Law 87, 91. 6 7

270  Research handbook on transnational environmental law In other instances, there is no intention to apply a law extraterritorially, but a unilateral extraterritorial effect nonetheless materializes. Such an effect arises, for example, when a state with a sizeable market, and hence considerable market power, imposes strict standards that producers cannot avoid if they want to continue to supply that market. In such instances, described by Bradford as the ‘Brussels Effect’,10 regulation is externalized when private actors decide to apply the stricter standard to their global production, including to domestic production that is not exported to the regulating state. As a result, what started as a domestic standard for a large market effectively regulates production even outside that market.11 The Brussels Effect requires positive acts of regulation, but a lack of (adequate) regulation can also have an extraterritorial effect on other states. Not only can this lack of regulation of harmful activities cause transboundary harm in other states, but – more importantly for current purposes – it may make it more difficult for other jurisdictions to effectively regulate similar activities within their territories, particularly when these activities can relatively easily be moved to more lenient jurisdictions and their products imported into stricter jurisdictions. This de facto unilateral non-regulation is the inverse of the Brussels Effect, because jurisdictions with lower standards bring down the overall standard of regulation.12 All of these examples constitute unilateral state regulation, because one jurisdiction effectively decides, without outside input, on the rules that will apply beyond its territory. The intentional or non-intentional character of the transboundary application of this regulation is irrelevant to the question whether it qualifies as unilateral. A criterion of intentionality is difficult to apply in practice anyway; the European Union (EU), for example, might deliberately harness the power of its market size on issues for which a Brussels Effect can occur in order to avoid spending diplomatic capital on political harmonization.13 Equally irrelevant to the status of unilateral state regulation is the question whether the unilateral application results from positive regulation or from a lack of regulatory action – again it is the practical effect that matters.14 The question then arises whether unilateral state regulation is compatible with international law – a question that will be explored in further detail below. At this stage, it is important to recognize that both categories of non-intentional unilateral transnational application of state regulation are arguably enabled by international law and are as much a product of international law as of the domestic law of the regulating state. Granted, one could see the Brussels Effect as a rational response to market incentives created by the economic power of the regulating state with which international law traditionally does not concern itself.15 However, even if market power exists, the Brussels Effect can only occur when international trade law does not restrict the regulating state’s ability to condition market access on compliance with its standards.16 Likewise, a lack of regulatory action in one state can have a transboundary application through the substitution of production for imports because international law has secured liberalized

A. Bradford, ‘The Brussels Effect’ (2012) 107 Northwestern University Law Review 1. For the conditions required for this effect to emerge, see ibid, 10–17. 12 A difference is that the Brussels Effect results in a single high standard, whereas in leakage, multiple low standards can coexist. 13 Bradford (n 10) 44–6. 14 On this last point, see Bodansky (n 4) 341. 15 As opposed to the exercise of political power, see Bodansky and Shaffer (n 3) 37. 16 Bradford (n 10) 13, 57–8. 10 11

Sovereignty, unilateralism, and the transboundary reach of environmental protection  271 trade but has not enforced the harmonization of domestic policies, such as environmental protection policies.17 Including these different types of transboundary impacts in the current analysis is important in order to develop a more nuanced understanding of how sovereignty and prescriptive jurisdiction influence the development of TEL, and of how these concepts are, or could be, reinterpreted to face the challenges of protecting the environment.

3

THE TENSION BETWEEN SOVEREIGNTY, UNILATERALISM, AND ENVIRONMENTAL PROTECTION

3.1

The Basic Principle of Territoriality

The established understanding of jurisdiction is that states need to ground the exercise of jurisdiction on a recognized basis before it is presumed valid under international law. Without such basis, other states can challenge the exercise of jurisdiction under international law. The most common – and least controversial – jurisdictional basis is territory, which reflects the idea that a state exercises sovereignty over and within its territory.18 International law’s choice to allocate prescriptive jurisdiction primarily on a territorial basis is the main reason for the tension between sovereignty, unilateralism and environmental protection. Environmental phenomena pay little regard to the boundaries of the political units in which humans organize themselves. As a result, externalities emerge easily: the state with jurisdiction to regulate has little incentive to do so if the negative environmental effects of a failure to regulate are not felt within its territory. Moreover, the state in which the environmental impact is felt might not have territorial jurisdiction over the activities that cause the negative effects within its territory. It could try to rely on the effects doctrine, a controversial doctrine that allows states to exercise jurisdiction over an activity outside their territory based on the effects it produces within their territory.19 However, enforcement of this regulation within the state where the activity takes place would be a breach of the latter’s sovereignty. Thus, the territoriality of jurisdiction can limit the emergence of TEL by limiting states’ ability to regulate if doing so would be extraterritorial and not justified by any of the grounds for extraterritorial jurisdiction, which are the active and passive nationality principles, the protective principle, and the universality principle. At the same time, territorial jurisdiction enables TEL. For example, the Brussels Effect can arise because these rules regulate the domestic market,20 and territorial jurisdiction implies that states can control what enters their market unless restrictions have been agreed to in trade agreements. Self-evident as is the notion that states can exercise jurisdiction over activities within their territory, its application in practice is more difficult than it might seem at first. For some states, the notion of territory itself is problematic, because of the difficulties of territorial delimitation. However, this question does not concern us here. The more pertinent question is when an

Assuming that the costs of transport are not prohibitive. M. Shaw, International Law (8th edn, Cambridge University Press 2017) 488–9. 19 M. Akehurst, ‘Jurisdiction in International Law’ (1972–1973) 46 British Yearbook of International Law 145, 154–5. 20 Bradford (n 10) 6, 50. 17 18

272  Research handbook on transnational environmental law activity can be located within a state’s territory.21 As Scott has pointed out, ‘[w]hile the bases of jurisdiction recognized by customary international law are clearly established and relatively stable, the boundaries and contours of these jurisdictional categories are not.’22 The principle of territoriality, as conventionally understood in international law, does not explain what constitutes a sufficient nexus to the regulating state’s territory. Thus, multiple states can sometimes claim a territorial link to an activity, for example, when elements of an activity occur in multiple territories. The principle of territoriality does neither require that the regulated activity is wholly located within the territory of the regulating state, nor does it stop states from regulating activities partly located within their territory and partly within another state’s territory. However, when a state regulates an activity that is only partly located within its territory, any domestic regulation automatically assumes a transnational character due to the nature of such multi-territorial activities and tensions easily arise. This happened in 2008 when the European Parliament and the Council of the EU extended the scope of the EU’s Emissions Trading Scheme (ETS) to all flights departing from or arriving at an airport in the EU, regardless of the nationality of the carrier and regardless of their origin or destination.23 Private actors launched judicial review proceedings in the United Kingdom (UK) against the implementation of the Directive, which led to a request for a preliminary ruling by the Court of Justice of the European Union (CJEU) on the question whether the EU and its Member States had territorial jurisdiction over the entirety of flights leaving from or going to a non-EU airport. The CJEU’s analysis, and its approach to territoriality, are discussed below. In addition, multiple states enacted blocking statutes to bar their carriers from participating in the EU ETS.24 Such blocking statutes are within the power of these states: not only can they claim a territorial link with the carrier, they can also claim jurisdiction based on nationality. Of course, these statutes left the carriers in the impossible situation of having to comply with two conflicting rules. Yet, the customary international law principles allocating jurisdiction do not contain a mechanism to resolve such conflicts, for example, by granting a particular state exclusive jurisdiction with reference to specific activities or transactions. Such mechanisms can, however, sometimes be found in international agreements, such as specialized agreements in the field of private international law or conflict of laws, or through trade liberalization agreements. The impact of the latter agreements on states’ prescriptive jurisdiction is the topic of the next section. 3.2

The Impact of Trade Liberalization Agreements on the State’s Prescriptive Jurisdiction

Although trade liberalization agreements do not expressly allocate jurisdiction between the exporting and the importing state, they achieve this in effect by stipulating the circumstances

C. Ryngaert, ‘The Concept of Jurisdiction in International Law’ in A. Orakhelashvili (ed.), Research Handbook on Jurisdiction and Immunities in International Law (Edward Elgar 2015) 62. 22 J. Scott, ‘The New EU “Extraterritoriality”’ (2014) 51 Common Market Law Review 1343, 1373. 23 Directive 2008/101/EC amending Directive 2003/87/EC so as to include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading within the Community [2009] OJ L8/3. 24 See, for example, European Union Emissions Trading Scheme Prohibition Act 2011, H.R. 2494, in the United States. 21

Sovereignty, unilateralism, and the transboundary reach of environmental protection  273 in which importing states can regulate imported products.25 This section of the chapter analyses the main obligations states assume under trade liberalization agreements for their impact on importing states’ ability to regulate consumption, and on exporting states’ ability to regulate production, within their respective territories. Where an importing state’s regulation is considered to violate its trade liberalization commitments, the exporting state effectively has the power to regulate. As a result, trade liberalization agreements inevitably affect the direction of transnational environmental law’s development: does it originate from the importing or the exporting state? The section does not look at broader questions about the potential conflict between trade law and environmental protection. Readers interested in these questions are directed to Chapter 21 of this book which addresses the intersection between climate change and the World Trade Organization (WTO). Within the WTO,26 the main obligation relevant to environmental regulation is the national treatment obligation, expressed in Article III:4 of the General Agreement on Tariffs and Trade (GATT)27 and in Article 2.1 of the Technical Barriers to Trade (TBT) Agreement.28 Article III:4 GATT requires importing states to accord products from another WTO Member ‘treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use’. This is an obligation of non-discrimination of ‘like products’. The most-favoured-nation obligation in Article I GATT contains a similar non-discrimination obligation between imported products of different origins. Article 2.2 TBT requires that non-discriminatory technical regulations are ‘not … more trade-restrictive than necessary to fulfil a legitimate objective’, which includes protection of the environment. Finally, Article XI GATT prohibits any quantitative restrictions, including import bans on products from a specific jurisdiction, for example, because its regulation is found to be lacking by the importing state.29

25 J. Trachtman and K. Nicolaïdis, ‘From Policed Regulation to Managed Recognition: Mapping the Boundary in GATS’ in J. Trachtman (ed.), The International Economic Law Revolution and the Right to Regulate (Cameron May 2006) 293; H. Horn and P. Mavroidis, ‘The Permissible Reach of National Environmental Policies’ (2008) 42 Journal of World Trade 1107, 1108. 26 In recent years, the main activity in trade law has been in preferential trade agreements. It is impossible to include all of these in this chapter. Instead, I focus on the WTO. This is justified because the preferential trade agreements largely contain mutatis mutandis the same disciplines as the WTO agreements. 27 General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into force 1 January 1995); Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 187. 28 Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995); Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 UNTS 120. 29 As the GATT Panel found in United States: Restrictions on Imports of Tuna (1991) BISD 39S/155, paras 5.17–5.18 (not adopted) (Tuna–Dolphin I). An Ad Note to Article III, in Annex I GATT, provides that any law or regulation that applies to like domestic and imported products and is enforced against the imported product at the border is still an internal measure within the scope of Article III. The Ad Note does not make clear whether this excludes the application of Article XI to such measures. A claim by India about the mutual exclusivity of Articles XI and III:4 was rejected in WTO, India: Measures Affecting the Automotive Sector – Report of the Panel (5 April 2002) WT/DS146/R, WT/DS175/R and Corr.1, para. 7.296, on the basis that ‘different aspects of the same measure may be covered by different provisions’.

274  Research handbook on transnational environmental law With the exception of the provisions on quantitative restrictions in Article XI, GATT Articles target behaviour that effectively discriminates against imported products. In this context, the definition of ‘likeness’ has been a major point for discussion. It is relevant for our purposes because if an importing state is allowed to treat imported goods differently from domestic ones due to the absence of likeness, the importing state can leverage access to its market into the adoption of its regulation by foreign producers. In 1970, a GATT Working Party on Border Tax Adjustments suggested a case-by-case evaluation of likeness taking into account ‘the product’s end-uses in a given market; consumers’ tastes and habits, which change from country to country; the product’s properties, nature and quality’.30 While the Appellate Body has recognized this list of criteria, it has also stated that it is impossible to give a precise and absolute definition of ‘like’.31 A question of particular importance has been whether importing states can adopt measures that differentiate between products based on the process or production methods used (PPM). If domestic and imported products can be treated as unlike due to differences in the production methods used, the importing state would not have to give differently produced imported products national treatment. The list of criteria for likeness is silent about production methods, although it allows consumer preferences to count. Thus, theoretically, if consumers prefer goods produced in a certain way, differently produced imported goods could be unlike domestic goods despite being physically identical, and therefore could lawfully be treated differently from domestically produced goods.32 However, in none of the cases reviewed by the WTO dispute settlement bodies so far has the determination of likeness hinged solely on consumer preferences.33 PPM-based measures are controversial, particularly if they regulate production methods that leave no trace in the final product,34 because they are seen as unilateral and extraterritorial regulation that interferes with the sovereignty of the exporting state. A response to the critique of unilateralism is that not allowing distinctions based on PPMs does not lead to less unilateralism, but simply changes the direction of the unilateral regulation in that it allows unilateral regulation by the producing state over that by the importing state.35 The extraterritoriality critique is more robust than the unilateralism critique, and ties in with the North–South divide.36 Under this objection, the state where production takes place should regulate produc-

Border Tax Adjustments (2 December 1970) BISD 18S/97 [18]. WTO, Japan: Taxes on Alcoholic Beverages – Report of the Appellate Body (1 November 1996) WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R 21. 32 B. Cooreman, Global Environmental Protection through Trade: A Systematic Approach to Extraterritoriality (Edward Elgar 2017) 34; D. Sifonios, Environmental Process and Production Methods (PPMs) in WTO Law (Springer 2018) 116. 33 Cooreman (n 32) 34. 34 If the production method leaves a trace in the final product, e.g., traces of pesticides on the goods, the PPM is ‘product-related’ and affects the physical characteristics of the product which is a recognized criterion to determine likeness. On the difference between non-product-related PPMs and product-related PPMs see Cooreman (n 32) 24–6. Because non-product-related PPMs raise questions about sovereignty and jurisdiction, any references to PPMs in the remainder of this chapter are references to non-product-related PPMs. 35 R. Howse and D. Regan, ‘The Product/Process Distinction – An Illusory Basis for Disciplining “Unilateralism” in Trade Policy’ (2000) 11 European Journal of International Law 249, 251. 36 Sifonios (n 32) 12. 30 31

Sovereignty, unilateralism, and the transboundary reach of environmental protection  275 tion processes. This harks back to territorial jurisdiction37 and reflects an understanding that production within a territory is the relevant conduct that triggers jurisdiction. The counterargument is that importing states are not per se regulating production in exporting states, but only the production of goods imported into their territory. Here, market access and consumption provide a territorial link.38 Hence, the regulation might have an extraterritorial effect, but only if the choice is made to trade with the regulating state.39 While this of course raises concerns about market power, the impact of PPM-based measures is no different from the ‘Brussels Effect’ of product regulations, where exporting states need to comply with the requirements of the importing state if they want market access. Yet, if the latter regulation is based on criteria that make the products ‘unlike’, it is not prohibited by WTO law and instead the ‘Brussels Effect’ is seen as a rational market response unfettered by international law rather than as an extraterritorial exercise of prescriptive jurisdiction. A further response to the extraterritoriality critique is that the regulating state might feel the negative impact of unregulated production methods used abroad, for example, through increased pollution or a loss in competitiveness due to higher domestic standards, which arguably creates another link with its territory.40 In past decades, the mainstream view was that PPM-based measures were incompatible with WTO rules.41 This was based on the first Tuna–Dolphin case,42 in which a GATT Panel refused to apply Article III GATT to US restrictions on imported tuna caught in dolphin-unfriendly ways because the restriction did not apply to products as such. Instead, the Panel applied Article XI GATT and found a violation that could not be justified under the exemptions provided for by Article XX GATT. However, this decision was never adopted and thus has little formal legal significance. Yet, its findings gave rise to vigorous debate on the legality of PPM-based measures43 that influenced later case law, in particular the WTO Appellate Body’s decision in US–Shrimp already mentioned above.44

G. Marceau and J. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade: A Map of the World Trade Organization’s Law of Domestic Regulation of Goods’ (2002) 36 Journal of World Trade 811, 858. 38 Howse and Regan (n 35) 277. 39 Cooreman (n 32) 87. 40 Whether these links are sufficient under international law to grant territorial jurisdiction is a different question. Purely commercial externalities, for example, when the regulating state is trying to protect its domestic producers from becoming less competitive compared to their foreign counterparts, are unlikely to provide a sufficient link for the exercise of territorial jurisdiction. See Cooreman (n 32) 126. 41 Howse and Regan (n 35) 251; Cooreman (n 32) 29; Sifonios (n 32) 13, 103. 42 Tuna–Dolphin I (n 29). 43 A selection of the wide literature on PPMs is: S. Charnovitz, ‘The Law of Environmental “PPMs” in the WTO: Debunking the Myth of Illegality’ (2002) 27 Yale Journal of International Law 59–110 59; S. Gaines, ‘Processes and Production Methods: How to Produce Sound Policy for Environmental PPM-Based Trade Measures?’ (2002) 27 Columbia Journal of Environmental Law 383–432; Howse and Regan (n 35); R. Hudec, ‘The Product–Process Doctrine in GATT/WTO Jurisprudence’ in M. Bronckers and R. Quick (eds), New Directions in International Economic Law (Kluwer 2000); J. Potts, The Legality of PPMs under the GATT: Challenges and Opportunities for Sustainable Trade Policy (International Institute for Sustainable Development 2008). Summaries of the debate can be found in C. Conrad, Processes and Production Methods (PPMs) in WTO Law (Cambridge University Press 2011) 20–31; Sifonios (n 32) 127–9. 44 US–Shrimp (n 8). 37

276  Research handbook on transnational environmental law In the latter case, the US did not contest a breach of Article III GATT, opting instead to go straight to Article XX’s justifications. As a result, relevant case law discusses the legality of PPMs under WTO law as part of Article XX GATT, which has been found to provide a justification as long as the PPM-based measure complies with its conditions. As a result, the product–process distinction is not as relevant to determine the compatibility of domestic environmental regulation with the WTO as it was once thought to be;45 what matters are the conditions of Article XX GATT. The analysis of Article XX GATT is divided into two major parts. First, a domestic measure found to violate another GATT provision needs to come within the scope of one of Article XX’s subparagraphs. Environmental protection fits within paragraphs (b) and (g). The former provides a potential justification for measures ‘necessary to protect human, animal or plant life or health’ and the latter for measures ‘relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’. If a measure comes within the scope of these paragraphs, and these have been interpreted broadly and dynamically,46 the second step is to analyse the measure under the chapeau of Article XX. The chapeau requires that the domestic measure is ‘not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade’. As its wording indicates, the chapeau focuses on the application rather than on the design of the measures.47 The factors considered under the chapeau analysis aim to reconcile the tension between the sovereignty of the importing and the exporting state and enable a more sophisticated approach to unilateralism. Because of this role, they will be discussed below. At this stage, it is worth noting that the unilateral or extraterritorial nature of a PPM has in itself not been held to be an obstacle to the availability of Article XX.48 The Appellate Body has also declined to decide whether Article XX contains an implied jurisdictional limitation that would require that the regulated concern is located within the territory of the regulating state.49 In US–Shrimp, the Appellate Body found that there was a sufficient nexus with the US territory because some turtle species migrate through US territorial waters.50 This is a relatively low threshold for the sufficiency of the nexus, but it is unclear whether a lesser nexus, for example, one based on the effects of the production, would be sufficient for the Appellate Body to exempt PPM-based measures under Article XX GATT.51

Cooreman (n 32) 29; Sifonios (n 32) 128. Cooreman (n 32) 128. 47 US–Shrimp (n 8) para. 160. 48 Ibid, para. 121. 49 In WTO, European Communities: Measures Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body (22 May 2014) WT/DS400/AB/R, WT/DS401/AB/R, para. 5.173, the Appellate Body recognized the systemic importance of the question, but did not address it because the parties had not made submissions on the issue. On the implied jurisdictional limitation, see N. Dobson and C. Ryngaert, ‘Provocative Climate Protection: EU “Extraterritorial” Regulation of Maritime Emissions’ (2017) 66 International and Comparative Law Quarterly 295, 324. 50 US–Shrimp (n 8) paras 133–4. 51 But see N. Dobson, ‘Exploring the Crystallization of “Climate Change Jurisdiction”: A Role for Precaution?’ (2018) 8 Climate Law 207, 218, 220, who has argued that the effects doctrine is increasingly available if the regulating state is avoiding substantial and foreseeable harm within its territory. 45 46

Sovereignty, unilateralism, and the transboundary reach of environmental protection  277

4

RECONCILING THE TENSION

The previous section has aimed to outline the tension between sovereignty, unilateralism and transboundary environmental protection as well as its origins in international law’s allocation of jurisdiction between states. This has revealed different types of tension that, each in their own way, affect the development of TEL. Sometimes, efforts by states to develop TEL will face condemnation as unilateral and extraterritorial regulation, even if they are for a commonly recognized goal of environmental protection. At other times, for example, when the Brussels Effect occurs, TEL can develop through domestic regulation with extraterritorial effects, provided certain economic and political conditions are met. At other times still, the allocation of jurisdiction hinders the development of any environmental regulation, because a state refrains from enacting domestic environmental regulation and this negatively affects other states which are unable to respond because international trade law does not allocate them jurisdiction to regulate imported goods or services. Whether or not TEL can develop thus depends in significant part on how prescriptive jurisdiction is allocated, whether by general international law or by specialized rules such as those found in trade liberalization agreements. This section examines how international law has responded to this paradox, and to the challenges posed by the clear need for TEL, primarily through changing conceptions of the rights and duties of states in the exercise of their sovereignty and jurisdiction. 4.1

Multilateral Responses: No Panacea

To resolve the tension between transboundary environmental protection and sovereignty, multilateral responses, in the form of international environmental treaties or conflict of laws agreements that identify which state has the strongest nexus with an activity,52 are often presented as the gold standard response. As opposites of unilateralism, they are based on the sovereign consent of all signatory states and thus respect their sovereignty. In the optimistic times of the 1990s, ideas of cooperative sovereignty and duties to cooperate to avoid unilateral regulation abounded.53 The promise of multilateralism, however, is not borne out by reality. Achieving consent is notoriously difficult and slow. Generally, the more participants involved, the more diluted the obligations become,54 resulting in inefficient regulation. Consent is especially difficult to achieve in relation to ‘collective action problems’; problems that can only be solved through cooperation but that rely on actions which are not individually rational for the actor who needs to perform them.55 States prefer to hold out and let others bear the brunt of the required efforts to respond to a problem, such as climate change mitigation. Importantly, the opposition to unilateralism and the territorial allocation of jurisdiction combine to act as a disincentive to

Bodansky and Shaffer (n 3) 33, fn 5. P.-M. Dupuy, ‘The Place and Role of Unilateralism in Contemporary International Law’ (2000) 11 European Journal of International Law 19, 22–3; F.X. Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (Kluwer 2000). 54 K. Raustiala, ‘Form and Substance in International Agreements’ (2005) 99 American Journal of International Law 581, 582, 609. 55 T. Sandler, Global Collective Action (Cambridge University Press 2004) 17, 19. 52 53

278  Research handbook on transnational environmental law multilateral cooperation as they enable states to hold out on collective action while limiting affected states’ ability to respond. Moreover, experience has shown that unilateral environmental regulation can be important to counter holdouts in multilateral negotiations.56 The inclusion of aviation in the EU ETS illustrates this,57 as it increased pressure within the International Civil Aviation Organization (ICAO) to negotiate a global instrument on market-based mechanisms. The EU then created a temporary derogation from the geographical extension (known as ‘stop the clock’)58 to facilitate the negotiations, and in 2016 ICAO issued a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA).59 This experience teaches us that sometimes a carefully measured dose of unilateralism might be a necessary catalyst for multilateral regulation, suggesting that unilateral action sometimes ought to be possible provided it is as compatible as possible with the sovereignty of other states. The next section examines how states have tried to ensure such compatibility. 4.2

Extending ‘Territoriality’ – Subject to Conditions

In light of the difficulties in achieving multilateral solutions, attitudes towards unilateral action have, unsurprisingly, shifted. This does not necessarily mean that states have given up on multilateral action or that unilateral action is now seen as more desirable than multilateral action. Yet, a more pragmatic approach has emerged that recognizes the potential of unilateral regulation as a catalyst for multilateral regulation and which acknowledges that a state’s failure to regulate or to participate in multilateral regulation also amounts to unilateralism. The greater pragmatism reveals itself in a more relaxed approach to what constitutes a sufficient link to a state’s territory. Such efforts stay true to the traditional, territorial foundation of the international legal order, but recognize that this foundation needs to be broadened to deal with transboundary issues. A reinterpretation of what constitutes an acceptable territorial link is attractive because, at least formally, it reaffirms the territoriality principle rather than being blatantly extraterritorial.60 It also signals to other states that the regulating state is willing to act within the confines of international law.61 The EU ETS provides an example. A judicial review challenge against the UK’s implementation of the EU Directive including aviation in the EU ETS led the High Court of England and Wales to request a preliminary ruling from the CJEU asking whether a range of interna R. Howse, ‘Commentary: The Political and Legal Underpinnings of Including Aviation in the EU ETS’ in L. Bartels, ‘The Inclusion of Aviation in the EU ETS: WTO Law Considerations’ (ICTSD, Trade and Sustainable Energy Series, Issue Paper No. 6, 2012) 28 http://​ictsd​.org/​i/​publications/​132387/​. 57 J. Scott, ‘The Multi-Level Governance of Climate Change’ (2011) 5 Carbon & Climate Law Review 25, 32; Scott (n 9) 117. 58 Regulation (EU) No. 421/2014 of the European Parliament and of the Council of 16 April 2014 amending Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions [2014] OJ L129/1. 59 International Civil Aviation Organization, ‘Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA)’, www​.icao​.int/​environmental​-protection/​CORSIA/​Pages/​default​ .aspx. 60 C. Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’ (2009) 9 International Criminal Law Review 187, 208. 61 Scott (n 9) 124. 56

Sovereignty, unilateralism, and the transboundary reach of environmental protection  279 tional agreements and rules of customary international law could be invoked to challenge the legality of the Directive and, if so, whether these international provisions could invalidate the Directive. It is not necessary to analyse these provisions here; we can instead focus on the Court’s brief analysis of territorial jurisdiction. The CJEU decided that the physical presence of a non-EU carrier in the territory of an EU Member State brought the carrier within the scope of the EU’s unlimited jurisdiction and ‘does not infringe the principle of territoriality or the sovereignty’ of third states over the airspace above their territory.62 A non-EU carrier only becomes subject to the EU ETS if it chooses to land at or take off from a European airport.63 The application of the EU ETS to the entire flight was justified by the CJEU on the ground that the European Union legislature may in principle choose to permit a commercial activity, in this instance air transport, to be carried out in the territory of the European Union only on condition that operators comply with the criteria that have been established by the European Union and are designed to fulfil the environmental protection objective which it has set for itself.64

In other words, the CJEU did not have any difficulty linking the inclusion of the entire flight, including the parts outside the airspace of an EU Member State, to the territory of a Member State and thus within the territorial jurisdiction of the EU and its Members. Its reasoning has been criticized for ‘downplaying the novelty of the question’65 and for blurring the conceptual divide between prescriptive and enforcement jurisdiction.66 Although the CJEU did not express it in such terms, but rather depicted the extension of the EU ETS to international aviation as a simple application of the traditional territoriality principle, its reasoning could be seen as an example of what Scott has labelled ‘territorial extensions’ in her work on jurisdictional triggers in EU law.67 This concept refers to the use of a territorial connection with the EU, which could be but is not necessarily limited to accessing the market of an EU Member, to affect conduct that takes place outside the EU.68 Other states also regularly exercise ‘port state jurisdiction’ over foreign-flagged vessels that visit their ports, including in ways that affect conduct abroad or on the high seas, for example, when port states enact minimum safety standards for ships allowed into their waters and ports or when they use port state jurisdiction to protect marine life on the high seas.69 Territorial extensions make conflicting exercises of jurisdiction more likely, and that may be the point of the regulating state and ultimately trigger the development of multilateral regulation. However, neither the conflict nor the intention of the regulating state determines the legality of such extensions under international law. Ultimately, the resolution of conflicts caused by competing exercises of jurisdiction lies in political solutions agreed to at the international level, although the applicable domestic rules can assist with mitigating tensions Case C–366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2012] OJ C49/7, paras 124–5. 63 Ibid, para. 127. 64 Ibid, para. 128. 65 J. Scott, ‘The Geographical Scope of the EU’s Climate Responsibilities’ (2015) 17 Cambridge Yearbook of European Legal Studies 92, 118. 66 Dobson and Ryngaert (n 49) 327. 67 Scott (n 9) 96–8. 68 Ibid, 90, 111; Scott (n 22) 1343. 69 C. Ryngaert and H. Ringbom, ‘Introduction: Port State Jurisdiction: Challenges and Potential’ (2016) 31 International Journal of Marine and Coastal Law 379, 380. 62

280  Research handbook on transnational environmental law by building in safeguards that protect other states’ ability to regulate. The presence of such safeguards should then be an important factor to judge the legality of domestic regulation that has extraterritorial effects through a territorial extension. The inclusion of such safeguards has been a significant evolution in the practice around territorial extensions in the EU. They are also included in WTO jurisprudence examining whether breaches of GATT obligations, such as the use of PPM-based measures, can be justified under Article XX GATT. A first such safeguard is that the territorial extension/unilateral regulation pursues a recognized or common concern. The notion of ‘common concern’ is relatively open-ended and allows new concerns to be included. Protection of the environment, particularly against problems that no state is equipped to handle individually, would qualify as a common concern, and is also recognized in Article XX(b) and (g) GATT. A second safeguard is the requirement of a link between the concern and the regulation. We see this clearly in Article XX(b) and (g) GATT which respectively require that the measure is ‘necessary’ or ‘relating to’ the recognized concerns.70 Similarly, under the general principles allocating territorial jurisdiction, a state invoking the effects doctrine will have to establish causality between the effects and the regulated activity, in addition to showing that the intensity and scope of the effects legitimize the exercise of prescriptive jurisdiction.71 A third safeguard is that regulating states should continue to respect other obligations of international law, such as the obligation to act in good faith.72 The chapeau of Article XX GATT can be seen as a specific application of the good faith obligation. Moreover, the necessity requirement in Article XX(b) GATT requires states to ensure that the adopted measure is the least trade restrictive alternative that can achieve the desired level of protection and the chapeau requires that there is no discrimination between countries where the same conditions prevail. The final, and arguably most important, safeguard is that the domestic measure should remain contingent upon the application of future multilateral instruments or of domestic measures of other states. Scott and Rajamani describe how the EU has engaged in ‘contingent unilateralism’, particularly in its ETS.73 This type of unilateralism can also be given a normative bent as it ‘ensures that states that currently do not regulate in response to a specific problem retain not only the legal but also the political capacity to regulate later without fear of adding to the regulatory compliance costs of companies that already fall within the scope of another state’s regulation’.74 Contingent unilateralism also finds support in WTO jurisprudence relating to Article XX GATT. As a safeguard to unilateral measures with extraterritorial effects, contingent unilateralism requires, first, that the domestic regulation is adjusted when

On the meaning of these terms, see Conrad (n 43) 286–90. Dobson and Ryngaert (n 49) 327–30. 72 Ibid, 330–31. 73 J. Scott and L. Rajamani, ‘EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme’ (2012) 23 European Journal of International Law 469, 472–3. Directive 2008/101/EC (n 23) contains mechanisms to avoid duplication of third state regulation. Nevertheless, the CJEU did not explicitly refer to them to justify the ‘territorial extension’ and most likely did not seem the need to since it saw the inclusion of aviation as a simple application of the territoriality principle rather than a territorial extension. 74 A. Hertogen, ‘Sovereignty as Decisional Independence over Domestic Affairs: The Dispute over Aviation in the EU Emissions Trading System’ (2012) 1 Transnational Environmental Law 281, 298. 70 71

Sovereignty, unilateralism, and the transboundary reach of environmental protection  281 an international agreement comes to fruition. The WTO Appellate Body, for example, has held that members should engage in ‘serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements’75 although it later specified that there is no obligation to conclude such an agreement as long as serious negotiations have been attempted in good faith.76 Secondly, even if no multilateral solution emerges, equivalent third country regulation should be recognized and lead to an exemption of the domestic regulation.77 Such contingencies are important to ensure respect for other states’ sovereignty, despite the unilateralism and extraterritorial effects of a domestic measure. The contingencies also help to identify more nuanced boundaries of jurisdiction in international law that ultimately enable the dynamic processes through which TEL emerges. At the same time, it puts these processes within a transnational legal framework and helps mediate potential tensions. 4.3

Obligations in the Exercise of Sovereignty

While territorial extension combined with contingent unilateralism broadens the permissive bases on which a state can exercise jurisdiction, an alternative approach to reconciliation tackles the other side of unilateralism, which manifests when a state’s unilateral lack of regulation has a negative impact beyond its borders. To resolve this problem of unilateralism, we see an increasing interest in ‘other-regarding’ obligations in the exercise of jurisdiction to protect the interests of other states and other states’ citizens.78 Thus, even if a state could claim jurisdiction, and thus be free to act as it sees fit, other-regarding obligations require it to internalize the effects of its actions. Of relevance for current purposes is the due diligence obligation to prevent transboundary harm caused by private operators through the creation and enforcement of domestic regulation. This obligation of prevention has a solid pedigree in international case law and principles.79 Notwithstanding that pedigree, operationalizing the obligation has proved challenging.80 In general terms, due diligence requires that a state behaves as a good government could reasonably be expected to behave in the circumstances.81 This might mean the use of any avail-

US–Shrimp (n 8) para. 166. WTO, United States: Import Restrictions on Shrimp and Certain Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia – Report of the Appellate Body (21 November 2001) WT/DS58/AB/ RW, paras 123–4. For criticism, see Conrad (n 43) 362–4. 77 US–Shrimp (n 8) paras 163–5. 78 From a theoretical perspective, support for such obligations is often based on considerations of humanity, see E. Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 American Journal of International Law 295; E. Fox-Decent and E.J. Criddle, Fiduciaries of Humanity (Oxford University Press 2016). 79 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep. 4; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep. 226; ‘Stockholm Declaration of the United Nations Conference on the Human Environment’, UN Conference on the Human Environment (16 June 1972) UN Doc. A/CONF.48/14/REV.1, Principle 21; ‘Rio Declaration on Environment and Development’, UN Conference on Environment and Development (14 June 1992) UN Doc. A/CONF.151/26 (Vol. I), Principle 2. 80 L.-A. Duvic-Paoli, The Prevention Principle in International Environmental Law (Cambridge University Press 2018) 200. 81 International Law Association, Study Group on Due Diligence in International Law – Second Report (2016) 8–11. 75 76

282  Research handbook on transnational environmental law able international standards as benchmarks to verify whether a domestic measure reflects best practices.82 However, significant confusion remains, for example on the important question whether the due diligence standard is procedural or includes substantive obligations.83 The impact of this response to the tension between sovereignty, unilateralism and the transboundary reach of environmental protection, however, unfolds more slowly than that of territorial extensions, because the practical implementation of ‘other-regarding’ restrictions on unilateralism faces similar obstacles as does the development of multilateral agreements in that the state that needs to regulate may have very little incentive to do so and is not accountable to those affected. This is not to say that the obligations governing the exercise of state sovereignty cannot develop; some clearly already have, as the crystallization of the principle of prevention illustrates.84 Yet, it will take time before such obligations are recognized, and also respected, by the states which need to adapt their behaviour, and in the meantime territorial extensions may give the affected states more room to protect themselves.

5 CONCLUSION This chapter has explored the complex relationship between state-authored TEL and the allocation of territorial jurisdiction under international law that operationalizes sovereignty. International law is crucial to enable the development of state-authored TEL for which the state needs to have prescriptive jurisdiction under international law. However, the development of state-authored TEL involves unilateral domestic regulation that has extraterritorial effects. Challenges to TEL, whether by other states or by private actors, therefore often rely on international law, as the examples of the EU ETS and PPM-based measures in the WTO show. However, there has been a notable shift in attitudes towards unilateralism. With the growing awareness of the difficulties of achieving ‘gold standard’ multilateral responses, unilateralism is seen as a second-best alternative.85 This chapter has explained how the interpretation of the principle of territorial jurisdiction and of relevant WTO rules has evolved to enable more sophisticated understandings of the legality of unilateral regulation that has extraterritorial effects. This is not to say that international law no longer restricts unilateral regulation. Rather, specific safeguards address the sovereignty concerns related to unilateral actions with extraterritorial effects that characterize state-authored TEL. Provided these safeguards are followed, international law will no longer be an obstacle to state-authored TEL, but may even

Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep. 14, paras 197, 223–5. In doing so, the due diligence obligations can help promote the adoption of transnational environmental law. 83 In Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2015] ICJ Rep. 665, multiple separate opinions took very different approaches to the question. For a discussion, see Duvic-Paoli (n 80) 206–7 and J. Brunnée, ‘Procedure and Substance in International Environmental Law: Confused at a Higher Level?’ (2016) 5 ESIL Reflections, www​.esil​-sedi​.eu/​node/​1344. 84 Duvic-Paoli (n 80) 330–31. 85 C. Ryngaert, ‘Extraterritorial State Action in the Global Interest: The Promise of Unilateralism’ in M. Amir and R. Sela (eds), Extraterritorialities in Occupied Worlds (Punctum Books 2016) 220; G. Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 European Journal of International Law 669, 692; Bodansky and Shaffer (n 3) 38–9. 82

Sovereignty, unilateralism, and the transboundary reach of environmental protection  283 add legitimacy by removing concerns about self-serving uses of TEL. The end result is a more mutually reinforcing relationship between international and transnational law.

17. Vice or virtue? Flexibility in transnational environmental law Sébastien Jodoin, Ling Chen and Carolina Gueiros

1 INTRODUCTION Flexibility is closely associated with many of the forms and processes of transnational environmental law and has thus attracted significant attention from legal scholars during the past 20 years. Many scholars argue that flexibility can enhance the legitimacy and compliance pull of transnational environmental governance and provide opportunities for experimentation, learning, reflexivity, and adjustment, thereby enabling actors to grapple with the complexity, uncertainty, and changing nature of contemporary environmental problems.1 Others criticize flexibility for undermining the predictability, certainty, and binding character of transnational environmental law, engendering the fragmentation of transnational legal norms and practices, generating inefficiencies, and helping to preserve unsustainable practices and patterns of behaviour.2 Our chapter builds on this literature to offer a nuanced assessment of the notion, purposes, and effects of flexibility in the field of transnational environmental law. In Section 2, we begin by introducing the concept of flexibility in transnational environmental law, examining the ways in which it has been recognized in different forms of transnational environmental governance and related intellectual currents, with illustrations drawn from the climate regime. In Section 3, we discuss different perspectives on flexibility in the existing literature, identifying what scholars perceive as its principal strengths and weaknesses. In Section 4, we evaluate the contributions of flexibility to efforts to develop and implement policies to reduce carbon emissions from deforestation and forest degradation in developing countries (REDD+). We conclude by reflecting on the lessons that can be learned about flexibility in the context of REDD+ for thinking about the role of flexibility in transnational environmental law.

1 See e.g., L. Helfer, ‘Flexibility in International Agreements’ in J. Dunoff and M. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013) 175, 176; R. Falkner, ‘A Minilateral Solution for Global Climate Change? On Bargaining Efficiency, Club Benefits, and International Legitimacy’ (2016) 14 Perspectives on Politics 87, 97. 2 See e.g., B. Mayer, The International Law on Climate Change (Cambridge University Press 2018) 141–2; H. van Asselt, ‘Between the Devil and the Deep Blue Sea: Enhancing Flexibility in International Climate Change Law’ (2014) 45 Netherlands Yearbook of International Law 255, 266.

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2

THE CONCEPT AND MANIFESTATIONS OF FLEXIBILITY IN TRANSNATIONAL ENVIRONMENTAL LAW

2.1

The Concept of Flexibility

The concept of flexibility can be closely associated with three sets of legal practices and related intellectual currents that comprise different facets of transnational environmental law. First, it manifests in different forms of multilevel environmental governance, including in the context of the European Union (EU)3 and the United States (US).4 Flexibility in this context refers to the notion that rigid legal rules adopted to address environmental issues may not necessarily be suitable across a heterogeneous array of jurisdictions in light of their particular legal systems and differing social, economic, and environmental circumstances. Instead, granting actors a margin of discretion in the interpretation and application of environmental legal standards may enable them to craft appropriate solutions adapted to local conditions, thereby enhancing effectiveness as well as fostering experimentation and learning.5 This version of flexibility is evident not only in the establishment of transgovernmental forms of environmental governance, such as cross-border networks of cities,6 but also characterizes the emergence, evolution, and outcomes of many transnational legal processes in which actors have generated, diffused, translated, adapted, and resisted environmental legal norms across multiple legal systems.7 Secondly, the concept of flexibility has been built into the very architecture of many multilateral environmental treaties as a way of managing risk and uncertainty.8 Cullet argues that flexibility is an institutional feature that can ‘liberate international law from some of its structural constraints’, enabling states to implement and adjust their obligations over time, in response to changing circumstances.9 Scholars working on the rational design of international institutions have similarly claimed that states can manage uncertainty and the risks of joining a treaty by selecting different flexibility devices for customizing treaty obligations, which devices are 3 S. Kingston, ‘Flexibility in EU Environmental Law and Policy: A Response to Complexity, or Fig Leaf for Expediency?’ in B. de Witte, A. Ott, and E. Vos (eds), Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law (Edward Elgar 2017) 336, 358. 4 E. Biber and J. Eagle, ‘When Does Legal Flexibility Work in Environmental Law?’ (2015) 42 Ecology Law Quarterly 787, 834. 5 C. Sabel and J. Zeitlin, ‘Experimentalism in the EU: Common Ground and Persistent Differences’ (2012) 6 Regulation & Governance 410. 6 L. Andonova, M. Betsill and H. Bulkeley, ‘Transnational Climate Governance’ (2009) 9 Global Environmental Politics 52. 7 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) 1 Transnational Environmental Law 31; S. Jodoin, Forest Preservation in a Changing Climate: REDD+ and Indigenous and Community Rights in Indonesia and Tanzania (Cambridge University Press 2017). 8 A. Thompson, ‘Rational Design in Motion: Uncertainty and Flexibility in the Global Climate Regime’ (2010) 16 European Journal of International Relations 269, 271–2 (discussing international relations and law scholars working on the nexus between uncertainty and flexibility). See also C. Marcoux, ‘Institutional Flexibility in the Design of Multilateral Environmental Agreements’ (2009) 26 Conflict Management and Peace Science 209, 213–15 (indicating that the provision of flexibility is attributed to a variety of factors, such as uncertainty, power asymmetry, concern for sovereignty, efficiency, and transaction costs). 9 P. Cullet, ‘Equity and Flexibility Mechanisms in the Climate Change Regime: Conceptual and Practical Issues’ (1999) 8 Review of European, Comparative and International Environmental Law 168, 171; Marcoux (n 8) 211.

286  Research handbook on transnational environmental law known as adaptive, transformative, and means flexibility.10 Adaptive flexibility allows for the temporary adjustment of individual treaty obligations for parties who undergo unexpected domestic developments while the treaty in question remains intact.11 Transformative flexibility provides states with the ability to alter the initially agreed terms of cooperation in light of changes in prevailing circumstances.12 Means flexibility gives states significant discretion in choosing from a portfolio of policies and measures to implement treaty obligations.13 Flexibility devices have been reflected in the design and provisions of international and bilateral environmental agreements, including through the use of a framework–protocol approach, delegation, and membership rules as well as the adoption of provisions governing reservation, review, amendment, renegotiation, escape, and withdrawal.14 There are also informal, and more controversial, practices of flexibility in international environmental regimes, such as non-participation, non-compliance, and the auto-interpretation of ambiguous text.15 Thirdly, interest in the design of flexible environmental regulatory instruments is also tied to the emergence of market-based approaches16 and new governance17 during the past 20 years. At the domestic level, this perspective conceives of corporations as best placed, due to their in-depth knowledge of their operations, to find cost-effective ways to continuously enhance their environmental performance through learning, innovation, and collaboration, rather than through the development and enforcement of strict standards by third parties.18 This form of flexibility notably underlies the creation of market mechanisms in the multilateral climate regime.19 This logic is also inherent in transnational contracts20 and private forms of authority (such as codes of conduct and certification programmes)21 that have grown in importance in numerous areas of transnational environmental law. 2.2

Manifestations of Flexibility in Transnational Environmental Law: Illustrations from the Climate Regime

Climate change is one of the fields that is most closely associated with flexibility. It provides a helpful context for identifying different manifestations of flexibility in transnational 10 Van Asselt (n 2) 258, 271 (applying this categorization to analyse flexibility in the UN climate regime); B. Koremenos, C. Lipson and D. Snidal, ‘The Rational Design of International Institutions’ (2001) 55 International Organization 761, 773 (distinguishing adaptive and transformative flexibility); Thompson (n 8) 271 (identifying means flexibility); Helfer (n 1) 178–81. 11 Koremenos, Lipson and Snidal (n 10) 773; Thompson (n 8) 270–72, 288. 12 Marcoux (n 8) 212; Thompson (n 8) 270, 281, 288. 13 Thompson (n 8) 281. 14 Helfer (n 1) 177–80. 15 Ibid, 176–7. 16 R. Pirard, ‘Market-Based Instruments for Biodiversity and Ecosystem Services : A Lexicon’ (2012) 19–20 Environmental Science & Policy 59. 17 N. Gunningham, ‘Environment Law, Regulation and Governance: Shifting Architectures’ (2009) 21 Journal of Environmental Law 179. 18 D. Fiorino, The New Environmental Regulation (MIT Press 2006). 19 Van Asselt (n 2). 20 N. Affolder, ‘Looking for Law in Unusual Places: Cross-Border Diffusion of Environmental Norms’ (2018) 7(3) Transnational Environmental Law 425. 21 E. Meidinger, ‘Forest Certification as Environmental Law Making by Global Civil Society’ in E. Meidinger, C. Elliott and G. Oesten (eds), Social and Political Dimensions of Forest Certification (Forstbuch 2003).

Vice or virtue? Flexibility in transnational environmental law  287 environmental law. As van Asselt argues, legal responses to climate change must be flexible enough to take into account the latest advances in climate science as well as changing political and socio-economic circumstances, while ‘maintaining the stability and predictability that form the basis of ongoing international cooperation’.22 Accordingly, the very design of the multilateral climate regime as a whole is imbued with flexibility and follows the ‘convention/ protocol’ model that was first employed in the context of international efforts to protect the ozone layer,23 creating an iterative process in which the state obligations can be ‘broadened or narrowed, strengthened or weakened’ to reflect changes in prevailing circumstances and an ongoing assessment of treaty performance.24 Adopted in 1992, the United Nations Framework Convention on Climate Change (UNFCCC) established a broad set of objectives and guiding principles and created a common platform for intergovernmental cooperation and dialogue on climate change. The Conference of the Parties (COP) serves as the ‘supreme body’ of the UNFCCC and is tasked with adopting decisions that ensure its implementation,25 including decisions that develop and operationalize new legal instruments, such as the Kyoto Protocol (KP) and the Paris Agreement (PA).26 The Subsidiary Body for Scientific and Technological Advice (SBSTA) provides scientific and technical guidance that guides the COP as a whole and the state parties in their efforts to develop and implement obligations and mechanisms.27 The instruments and series of decisions that underlie the multilateral climate regime also include a variety of flexibility provisions that are typical of other international conventions. The UNFCCC, KP, and PA each contain withdrawal provisions that allow states unilaterally to terminate their participation, thus ending their status as a party and terminating their related obligations. This is a four-year process, however, which can only be initiated when a treaty has been effective for at least three years in succession and requires a one-year written notice.28 For example, Canada withdrew from the KP in 2012, while continuing to participate in climate negotiations under the UNFCCC and ratifying the PA in 2016.29 Although none of the three treaties permits reservations,30 a number of states have made interpretative declarations, in particular with respect to state responsibility.31

Van Asselt (n 2) 281. See also Biber and Eagle (n 4) 787. Mayer (n 2) 53. 24 S. Barrett, Environment and Statecraft: The Strategy of Environmental Treaty-Making (Oxford University Press 2003) 153. 25 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), Art. 7.2. 26 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2303 UNTS 162; Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740. 27 Comprised of technical experts appointed by parties to the UNFCCC, the SBSTA provides guidance on scientific and technical matters identified by the COP (UNFCCC, Art. 9). 28 Marcoux (n 8) 211; Helfer (n 1) 181. See UNFCCC, Art. 25; Kyoto Protocol, Art. 27; Paris Agreement, Art. 28. 29 S. Maciunas and G. de Lassus Saint-Geniès, The Evolution of Canada’s International and Domestic Climate Policy: From Divergence to Consistency? (CIGI 2018) 1, 8–10. 30 UNFCCC, Art. 24; Kyoto Protocol, Art. 26; Paris Agreement, Art. 27. 31 See e.g., UNFCCC, ‘Declarations by Parties’, https://​unfccc​.int/​process/​the​-convention/​status​-of​ -ratification/​declarations​-by​-parties. 22 23

288  Research handbook on transnational environmental law The three instruments also contain provisions periodically to review institutional arrangements and obligations and to adopt amendments if necessary.32 The KP uses five-year commitment periods so parties can renegotiate their mitigation targets in light of new scientific and technological insights and changing social and economic circumstances.33 Parties to the PA have agreed to undertake climate action according to their nationally determined contributions (NDCs).34 The achievement of these contributions is not legally required, but parties have the obligation to communicate NDCs every five years, accompanied by a reporting obligation on implementation and achievement of NDCs.35 The assessment of overall progress is set to take place in 2023 and every five years thereafter, which can be used to encourage more ambitious efforts.36 Another important source of flexibility in the climate regime is the relative imprecision of climate rules, which opens the door for interpretation. Rules and principles lay out broad goals and purposes ‘but do not describe in detail the exact obligations they entail or the means by which they ought to be delivered’.37 The decisions gradually adopted by the COP ‘can add substance to often vaguely formulated provisions in a way that does not differ much from formally amending a treaty’.38 Two other significant expressions of flexibility that are manifest in the multilateral climate regime relate to the principle of common but differentiated responsibilities and the use of market-based mechanisms. The principle of common but differentiated responsibilities acknowledges that there are considerable differences between countries’ contributions to climate change and their capabilities to address it, and that it would be inequitable and impractical to impose the same obligations on industrialized countries and developing countries.39 For example, the principle formed the basis for the design of the KP, which only obliged industrialized countries (listed in Annex B to the KP) to reduce their carbon emissions, while granting developing countries a greater degree of flexibility in how they would address climate change.40 Moreover, state parties have established three market mechanisms to enable countries to meet their emissions reductions under the KP: joint implementation (JI), the clean development mechanism (CDM), and emissions trading. These three mechanisms have provided Annex B countries with significant discretion on the practical implementation of their

See e.g., UNFCCC, Arts 4.2(d)(f), 7.2(a), 15; Kyoto Protocol, Arts 3.9, 9, 13.4(b), 20; Paris Agreement, Arts 3–4, 13–14, 22. 33 Kyoto Protocol, Art. 3. 34 Paris Agreement, Art. 3. 35 Ibid, Arts 4.9, 13. 36 Ibid, Art. 14. 37 M. Dawson and A. Durana, ‘Modes of Flexibility: Framework Legislation v “Soft” Law’ in B. de Witte, A. Ott and E. Vos (eds), Between Flexibility and Disintegration: The Trajectory of Differentiation in EU Law (Edward Elgar 2017) 92. 38 Van Asselt (n 2) 259. For more details, see J. Brunnée, ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15 Leiden Journal of International Law 1. 39 J. Brunnée and C. Streck, ‘The UNFCCC as a Negotiation Forum: Towards Common but More Differentiated Responsibilities’ (2013) 13 Climate Policy 589. 40 D. Bodansky, J. Brunnée and L. Rajamani, International Climate Change Law (Oxford University Press 2017) 166–9. Notably, there is also differentiation in the UNFCCC such that all parties have general commitments relating to combating climate change, while Annexes I and II parties have additional, more specific commitments. For details see Bodansky, Brunnée, and Rajamani, 122. 32

Vice or virtue? Flexibility in transnational environmental law  289 emissions reduction targets.41 They were also meant to generate significant gains in cost efficiency.42 Under JI, an Annex B country can invest in a project to reduce carbon emissions in another Annex B country and apply the emissions reductions units towards its goals under the KP. The CDM has enabled Annex B countries to meet part of their commitments under the KP by purchasing certified emission reductions (CERs) generated through climate mitigation projects pursued in developing countries. Finally, Annex B countries can establish an emissions trading scheme (ETS) in which credits for pollution are allocated to polluters who can pollute a certain amount, while unused credits can be traded. This approach seeks to provide incentives for corporations to reduce their carbon emissions by making it cost-effective to internalize the externalities associated with generating carbon emissions.43 Beyond the UNFCCC, notions of flexibility are manifest in transgovernmental, private, and hybrid forms of transnational climate governance, which make it possible for public and private actors to develop, adapt, and apply solutions for addressing climate change in a dynamic and iterative manner. For example, bilateral and regional agreements for climate cooperation, such as ‘climate clubs’, unify like-minded partners in smaller groups, which could improve bargaining efficiency and provide exclusive benefits such as access to climate finance and green technology.44 The Western Climate Initiative (WCI) is one such club through which California and Québec integrated their cap-and-trade programmes for reducing greenhouse gas (GHG) emissions.45 Climate governance through networks is another example of transnational efforts, including non-state networks such as the C40 partnership of 94 of the world’s megacities, and public–private initiatives between governments and the private sector, such as the World Summit for Sustainable Development partnerships.46 Finally, certification schemes for carbon accounting and offsetting, such as the Gold Standard, Plan Vivo, and the Verified Carbon Standard (VCS), allow companies to voluntarily reduce their emissions while differentiating themselves as sustainable options for consumers, potentially gaining price premiums, market access, and reputational benefits.47

41 Kyoto Protocol, Arts 6, 12, 17. For an overview see Mayer (n 2) 132–44; van Asselt (n 2) 268–9; N. Stern, The Economics of Climate Change: The Stern Review (Cambridge University Press 2007) 273–6. 42 Cullet (n 9) 171. 43 S. Bogojević, Emissions Trading Schemes: Markets, States and Law (Hart 2013) 30. 44 A. Prakash and M. Potoski, The Voluntary Environmentalists: Green Clubs, ISO 14001, and Voluntary Environmental Regulations (Cambridge University Press 2006); D. Victor, The Case for Climate Clubs (ICTSD & WEF 2015). 45 For more details, see L. Chen, ‘Are Emissions Trading Schemes a Pathway to Enhancing Transparency under the Paris Agreement?’ (2018) 19 Vermont Journal of Environmental Law 306, 320–21, 331–4. 46 P. Pattberg and J. Stripple, ‘Beyond the Public and Private Divide: Remapping Transnational Climate Governance in the 21st Century’ (2008) 8 International Environmental Agreements: Politics, Law and Economics 367. 47 L. Schmidt and K. Gerber, A Comparison of Carbon Market Standards for REDD+ Projects (Germanwatch 2016).

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3

THE POTENTIAL AND PITFALLS OF FLEXIBILITY FOR ADDRESSING TRANSNATIONAL ENVIRONMENTAL PROBLEMS

Scholars have argued that flexibility has the potential to deliver three types of benefits for transnational environmental governance. First, flexibility can increase the chances of creating transnational environmental initiatives by enhancing their legitimacy and compliance pull among potential participants. The negotiations over the KP have shown that including flexibility devices can encourage the participation of recalcitrant states in multilateral environmental agreements (MEAs). The inclusion of market mechanisms in the KP led the US to accept the draft Protocol and resulted in its adoption in the first place. Of course, the US decision to ultimately not ratify the KP also demonstrates that the lure of flexibility may be limited.48 Flexibility is thought to affect states’ calculation of treaty compliance, and flexibility devices mean that ‘states may adjust their commitments instead of violating them’.49 Likewise, the flexibility that is provided through participation in transgovernmental networks, multi-stakeholder initiatives, transnational contracts, and private forms of governance undoubtedly forms part of their appeal to potential members.50 Secondly, flexibility mechanisms are seen as providing opportunities for experimentation, learning, reflexivity, and adjustment, enabling actors to grapple with the complexity and uncertainty of contemporary environmental problems. In the context of MEAs, Brunnée argues that the establishment of dialogue, the iterative formulation of rules, and the regular assessment of treaty effectiveness have facilitated the emergence of shared understandings regarding problems and responses thereto.51 Indeed, a convention–protocol approach accommodates the temporal nature of environmental issues when a full picture or consensus on solutions has not been reached. Subsequent protocols gradually elaborate rules, keep attracting new partners, and continue regime building, thus enhancing an instrument’s legal certainty and predictability.52 Similarly, transnational legal initiatives may be guided by an experimental ethos in which initial experiences with piloting a new mechanism at the domestic level may generate lessons for other countries and feed into the development of legal norms or guidance at the international level.53 Finally, private forms of transnational environmental law also have the potential to foster learning among their participants: this is the case, for instance, of certification programmes and the interactions and processes deriving from them.54 C. Carr and F. Rosembuj, ‘Flexible Mechanisms for Climate Change Compliance: Emission Offset Purchases under the Clean Development Mechanism’ (2008) 16 NYU Environmental Law Journal 44, 46; H. van Asselt and J. Gupta, ‘Stretching Too Far? Developing Countries and the Role of Flexibility Mechanisms beyond Kyoto’ (2009) 28 Stanford Environmental Law Journal 311, 334; Falkner (n 1) 97. 49 Helfer (n 1) 176. 50 K. Bäckstrand, ‘Multi-Stakeholder Partnerships for Sustainable Development: Rethinking Legitimacy, Accountability and Effectiveness’ (2006) 16 European Environment 290; S. Bernstein and B. Cashore, ‘Can Non-State Global Governance Be Legitimate ? An Analytical Framework’ (2007) 1 Regulation & Governance 347. 51 Brunnée (n 38) 51. 52 Van Asselt (n 2) 259, 271. 53 C. Overdevest and J. Zeitlin, ‘Assembling an Experimentalist Regime: Transnational Governance Interactions in the Forest Sector’ (2014) 8 Regulation & Governance 22. 54 B. Cashore, G. Auld and D. Newsom, Governing through Markets: Forest Certification and the Emergence of Non-State Authority (Yale University Press 2004). 48

Vice or virtue? Flexibility in transnational environmental law  291 Thirdly, flexibility is understood as facilitating compliance in a cost-effective manner for the actors who must alter their behaviour. In the climate regime, flexibility in deciding which actors should reduce carbon emissions has been seen as important because some states and firms can cut emissions at a lesser cost than others.55 According to one assessment, use of the CDM under the KP from 2008 to 2011 reduced compliance costs for firms in the EU ETS and in Japan by at least US$3.6 billion.56 In turn, scholars have argued that lowering the costs of implementation can encourage states to undertake more ambitious national commitments.57 More broadly, cost-effectiveness is central to the case made by many scholars in favour of voluntary environmental programmes, since corporations are seen as being best placed to find the best ways of improving their environmental performance.58 Yet flexibility also presents potential pitfalls for transnational environmental governance. First, it can undermine the predictability, certainty, and binding character of transnational environmental law. Although flexibility may encourage participation, it can also have detrimental consequences for cooperation by eroding the willingness of actors to remain parties to an agreement or voluntary programme or comply with their obligations. Withdrawals or non-compliance in an MEA may create concerns about encouraging opportunistic behaviour and states may be discouraged from fulfilling their obligations in a context where other parties may later ‘invoke a treaty’s flexibility mechanisms to shirk compliance’.59 While flexibility is inherent in the creation of voluntary certification programmes, too much flexibility in how such programmes operate may also undermine their credibility and effectiveness. Prakash and Potoski notably argue that the ability of such programmes to function as ‘clubs’ that steer the behaviour of corporations hinges on the extent to which they sanction non-compliance and deter freeriding on the part of their members.60 Secondly, flexibility may create perverse incentives for behaviour that ultimately undermines the effectiveness of transnational environmental law or has detrimental social and environmental impacts. The limitations and controversies associated with transnational market mechanisms such as carbon trading or payment-for-ecosystem schemes are well documented in the literature.61 Biodiversity offset initiatives, which aim to tackle environmental damage caused by development by achieving biodiversity gains in a different location, are an example of how payments-for-ecosystem services programmes that are not carefully designed can create incentives that increase rates of biodiversity loss instead of reducing them, worsening

Van Asselt and Gupta (n 48) 331; Stern (n 41) 274. R. Spalding-Fecher and others, ‘Assessing the Impact of the Clean Development Mechanism’ (2012), www​.cdmpolicydialogue​.org/​research/​1030​_impact​.pdf. 57 Mayer (n 2) 140. 58 K. Segerson and T. Miceli, ‘Voluntary Environmental Agreements: Good or Bad News for Environmental Protection ?’ (1998) 36 Journal of Environmental Economics and Management 109. 59 Helfer (n 1) 176. See also van Asselt (n 2) 266. 60 M. Potoski and A. Prakash, ‘A Club Theory Approach to Voluntary Programs’ in M. Potoski and A. Prakash (eds), Voluntary Programs. A Club Theory Perspective (MIT Press 2009). 61 See e.g., M. Mehling, ‘Linking of Emissions Trading Schemes’ in D. Freestone and C. Streck (eds), Legal Aspects of Carbon Trading: Kyoto, Copenhagen & Beyond (Oxford University Press 2009) 108, 109–10; R. Glicksman and T. Kaime, ‘A Comparative Analysis of Accountability Mechanisms for Ecosystem Services Markets in the United States and the European Union’ (2013) 2 Transnational Environmental Law 259; Chen (n 45) 334–6. 55 56

292  Research handbook on transnational environmental law the problem the policy was intended to ameliorate.62 In general, biodiversity offsetting mechanisms aim at achieving no net loss of biodiversity compared to a business-as-usual baseline scenario.63 The calculation of an appropriate baseline becomes crucial: once a baseline has been defined, it becomes ‘locked-in’ and credits will be issued only to maintain the trajectory of the baseline in order to achieve the no net loss goal.64 The result is that ‘[i]f an unrealistically steep baseline of decline is used due to uncertainty or an incentive to exaggerate it, this steeper rate of decline is then made real by the policy’.65 Another example of perverse incentives can be found in the climate regime. Because flexibility mechanisms established under the UNFCCC have encouraged countries and firms to reduce carbon emissions at the lowest cost possible, this has led them to focus on low-hanging fruit in certain regions and industries, raising concerns about the equitable geographic distribution of projects66 and potential delays in the transformative change that is needed to transition to a low-carbon economy in industrialized countries.67 Indeed, the majority of JI projects have been implemented in Ukraine and Russia68 and some 70 per cent of CDM projects have been hosted by China and India.69 In the end, the overall collapse of the value of carbon credits in the late 2000s has significantly constrained the use of the flexible mechanisms established under the UNFCCC70 as well as limited investment in voluntary carbon markets.71 Another notable controversy associated with the CDM concerns the CDM Executive Board’s decision to approve CERs generated by incinerating HFC-23, a significant source of GHG emissions. There is evidence that this decision actually led to a substantial increase in the production of HFC-23 because of the incentive to incinerate in exchange for CERs.72 Furthermore, flexibility may grant actors too much room for customizing measures to address problems, allowing them to do more desirable but also undesirable things.73 For example, research shows that many CDM and REDD+ projects implemented in developing countries have caused adverse impacts on the rights of local communities and their environment due to their ‘less stringent standards or less systematic implementation’.74 Over the past three decades, the market mechanisms have developed from being discussed in passing by the UNFCCC to becoming one of the C. Reid, ‘Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity’ (2013) 2 Transnational Environmental Law, 217–33. 63 A. Gordon, J. Bull, C. Wilcox and M. Maron, ‘Perverse Incentives Risk Undermining Biodiversity Offset Policies’ (2015) 52 Journal of Applied Ecology 532–7, 533. 64 Ibid. 65 Ibid, 534. 66 Van Asselt and Gupta (n 48) 377. 67 D. Driesen, ‘The Limits of Pricing Carbon’ (2014) 4 Climate Law 107; A. Howard, ‘Voluntary Cooperation’ in D. Klein and others (eds), The Paris Agreement on Climate Change: Analysis and Commentary (Oxford University Press 2017) 178. 68 Bodansky, Brunnée and Rajamani (n 40) 182. 69 Ibid, 189. 70 Mayer (n 2) 141–2. 71 J. Macinante, ‘Operationalizing Cooperative Approaches under the Paris Agreement by Valuing Mitigation Outcomes’ (2018) 12 Carbon and Climate Law Review 258; M. Passero, ‘The Voluntary Carbon Market: Its Contributions and Potential Legal and Policy Issues’ in D. Freestone and C. Streck (eds), Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (Oxford University Press 2009) 517. 72 For more details see Mayer (n 2) 142. 73 Biber and Eagle (n 4) 834. 74 Mayer (n 2) 143. 62

Vice or virtue? Flexibility in transnational environmental law  293 most controversial issues.75 At COP 24, parties agreed on almost every element of the ‘rulebook’ to guide the implementation of the PA but struggled to deliver guidance on voluntary market-based cooperation under Article 6.76 This lack of consensus could undermine the confidence of those in the private sector who want to embrace the new market mechanism under Article 6 of the PA, but may be concerned about how their efforts will be rewarded. Finally, flexibility can lead to the fragmentation of transnational legal norms and practices. Flexibility in its various manifestations has contributed to the proliferation of overlapping rules and institutions and the resulting competition between public and private initiatives may increase the risks of forum shopping, policy chaos, and additional normative fragmentation.77 This has prompted calls for greater coordination between transnational environmental institutions, but numerous obstacles stand in the way of orchestration of complex, policy-centric systems of governance.78

4

AN ASSESSMENT OF FLEXIBILITY IN THE TRANSNATIONAL LEGAL PROCESS FOR REDD+

The complex landscape in which public and private actors have constructed, conveyed, and applied legal norms for REDD+ across a variety of sites and modes of law79 provides a rich context for identifying different manifestations of flexibility in transnational environmental law and assessing their contribution to efforts to address environmental problems. For reasons of space, our analysis focuses on flexibility in the context of legal norms that govern the implementation of REDD+ by developing countries at the national level (known as jurisdictional REDD+), as opposed to REDD+ projects that may be pursued by a variety of actors at the local scale. 4.1

Flexibility and Lawmaking for Jurisdictional REDD+

Flexibility has permeated many aspects of the transnational legal process for jurisdictional REDD+. This includes the very manner in which legal norms for this mechanism have been developed. The core legal norms for REDD+ have emerged from a series of decisions that were gradually adopted in the UNFCCC from 2010 to 2015 and which provide developing countries with rules and guidance to create institutions, adopt laws and policies, and implement

Cullet (n 9) 172. See e.g., N. Keohane, ‘UN Climate Negotiators Secure Important Elements of the Paris Rulebook but Leave Key Markets Text Out’ (Environmental Defense Fund, 15 December 2018), www​.edf​.org/​ media/​un​-climate​-negotiators​-secure​-important​-elements​-paris​-rulebook​-leave​-key​-markets​-text​-out. For the negotiation on Article 6, see Chen (n 45). 77 See e.g., Victor (n 44) 8; Bodansky, Brunnée, and Rajamani (n 40) 267. 78 K. Abbott and D. Snidal, ‘Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal of Transnational Law 501; H. Nagendra and E. Ostrom, ‘Polycentric Governance of Multifunctional Forested Landscapes’ (2012) 6 International Journal of the Commons 104. 79 S. Jodoin and S. Mason-Case, ‘What Difference Does CBDR Make? A Socio-Legal Analysis of the Role of Differentiation in the Transnational Legal Process for REDD+’ (2016) 5 Transnational Environmental Law 255; Jodoin (n 7). 75 76

294  Research handbook on transnational environmental law measures to reduce carbon emissions from forest-based sources and to receive international funding for their efforts.80 Over time, these decisions have crystallized shared understandings regarding the purposes of jurisdictional REDD+ and its basic requirements.81 However, lawmaking for jurisdictional REDD+ has also been facilitated by the adoption of an experimental approach to the generation of rules and guidance that initially transcended the UNFCCC COP. Upon launching negotiations over REDD+ in 2007, the UNFCCC COP encouraged developing countries ‘to explore a range of actions, identify options and undertake efforts, including demonstration activities, to address the drivers of deforestation relevant to their national circumstances’.82 In doing so, it called not just on states, but on all relevant organizations and stakeholders to provide capacity-building, offer technical assistance, and mobilize resources to support efforts undertaken to operationalize REDD+ in developing countries.83 Soon enough, developed and developing countries signed bilateral agreements, created dedicated multilateral programmes such as the World Bank’s Forest Carbon Partnership Facility (FCPF) and the UN-REDD Programme, and established informal policy coordination bodies such as the REDD+ Partnership.84 Furthermore, non-governmental organizations (NGOs) and corporations created certification standards and methodologies to guide the development of REDD+ projects, most notably including the Agriculture, Forestry and Other Land Uses requirements set by the VCS and the Climate, Community and Biodiversity Standards.85 At the national level, legal norms for REDD+ began to be developed and applied in the context of national strategies, policies, and laws adopted by developing country governments.86 In turn, the legal practices produced by these multiple sites of authority, and the knowledge that they have generated about the challenges and opportunities associated with the implementation of REDD+, influenced decision making on REDD+ in the UNFCCC.87 In addition, the legal norms for REDD+ have provided developing countries with considerable flexibility regarding whether and how to pursue REDD+. First, it is important to note that jurisdictional REDD+ is meant to be carried out on a ‘voluntary basis’.88 The UNFCCC COP has consistently reiterated that the pursuit of REDD+ activities by developing countries is subject to their national capabilities, capacities, and circumstances and is moreover con-

A. La Viña, A. de Leon and R.R. Barrer, ‘History and Future of REDD+ in the UNFCCC: Issues and Challenges’ in C. Voigt (ed.), Research Handbook on REDD+ and International Law (Edward Elgar 2015). 81 S. Jodoin, ‘Transnational Legal Process and Discourse in Environmental Governance: The Case of REDD+ in Tanzania’ (2019) 44 Law & Social Inquiry 1019. 82 UNFCCC COP, Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, FCCC/CP/2007/6/Add.1 (2008), paras 1, 3. 83 Ibid, paras 2, 5, 9. 84 H. van Asselt and C.L. McDermott, ‘The Institutional Complex for REDD: A “Benevolent Jigsaw”?’ in Voigt (n 80); Jodoin (n 7) at 39–44; M. Recio, ‘Transnational REDD+Rule Making: The Regulatory Landscape for REDD+ Implementation in Latin America’ (2018) 7 Transnational Environmental Law 277. 85 E. Merger, M. Dutschke and L. Verchot, ‘Options for REDD+ Voluntary Certification to Ensure Net GHG Benefits, Poverty Alleviation, Sustainable Management of Forests and Biodiversity Conservation’ (2011) 2 Forests 550. 86 Jodoin (n 7) 44–5. 87 A. Angelsen and D. McNeill, ‘The Evolution of REDD+’ in A. Angelsen (ed.), Analysing REDD. Challenges and Choices (Center for International Forestry Research 2012). 88 Report of the Conference of the Parties on its thirteenth session (n 82), para. 1. 80

Vice or virtue? Flexibility in transnational environmental law  295 tingent on the delivery of adequate and predictable levels of financial and technical support received from developed countries.89 Secondly, jurisdictional REDD+ has been defined as encompassing an assortment of activities, including the reduction of deforestation and forest degradation, the conservation of forest carbon stocks, the sustainable management of forests, and the enhancement of forest carbon stocks.90 Thirdly, the adoption of a phased approach to jurisdictional REDD+ has also given developing countries significant discretion in the development and implementation of their activities under the mechanisms. The 2010 Cancun Agreements under the UNFCCC provide that the domestic operationalization of REDD+ should proceed through three phases: (1) a readiness phase focusing on ‘the development of national strategies or action plans, policies and measures, and capacity-building’; (2) an interim phase entailing ‘the implementation of national policies or measures and national strategies or action plans that could involve further capacity-building, technology development and transfer and results-based demonstration activities’; and (3) a compliance phase in which payments are made for ‘results-based actions that are fully measured, reported and verified’.91 Developing countries interested in implementing REDD+ are moreover expected to develop the following elements as part of their efforts to participate in REDD+: (1) a national strategy or action plan; (2) a national baseline of their forest-related carbon emissions (known as a forest reference emissions or forest reference level); (3) a national forest monitoring system that could measure, report, and verify carbon emissions in forests and reductions therein; and (4) a reporting system to provide information on the application of social and environmental safeguards.92 Ultimately, the goal of REDD+ readiness efforts is for developing countries to develop a set of institutions, policies, and programmes that are tailored to their particular circumstances, considering national drivers of deforestation, the nature and state of forest ecosystems, other national development and environmental priorities, and existing laws and institutions relating to climate change, forest governance, and land use.93 Finally, it is important to note that lawmaking for REDD+ in the UNFCCC has been an exercise in ambiguity, generating imprecise legal norms that have left disagreements over key issues unsettled or unresolved, thus enabling different actors to endorse and support REDD+. This is obvious when one considers debates and decision making relating to safeguards information systems and the approval of market-based sources of finance for REDD+ within the UNFCCC. For instance, despite the controversies over the role of private funding in REDD+, the COP has left the door open to the potential development of market-based sources of finance for REDD+ and has given developing countries discretion to decide for themselves which types of funding they are willing to accept.94 Flexible guidance over the development of safeguards information systems provides another clear example, with developing countries having 89 UNFCCC COP, Report of the Conference of the Parties on its sixteenth session, held in Cancun from 29 November to 10 December 2010, FCCC/CP/2010/7/Add.1 (2011), paras 71, 74, 76. 90 Ibid, para. 72. 91 Ibid, para. 73. 92 Ibid, para. 71. 93 Jodoin (n 7) 40, 45, 48–9. 94 UNFCCC COP, Decision 2/CP.17, ‘Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention’ in Report of the Conference of the Parties on its sixteenth session, Addendum, Part Two: Action taken by the Conference of the Parties, FCCC/ CP/2011/9/Add.1 (15 March 2012), para. 66; Paris Agreement, Art. 5.

296  Research handbook on transnational environmental law the opportunity to select different modalities for operationalizing safeguards and reporting on their performance.95 Indeed, the UN-REDD Programme, the World Bank FCPF, and the REDD+ Social and Environmental Standards Initiative have all developed different tools and standards to enable countries to develop their own safeguard policies and institutions.96 4.2

The Role of Flexibility in the Transnational Legal Process for REDD+

Previous efforts to tackle tropical deforestation in the context of the UNFCCC in the 1990s and early 2000s had failed, in large part, due to the concerns of developing countries committed to preserving their sovereignty over natural resources and ensuring that developed countries focused on curbing industrial sources of GHG emissions, in line with prevailing understandings of equity and the principle of common but differentiated responsibilities.97 In contrast, jurisdictional REDD+ rapidly gained traction in the international climate negotiations from 2007 to 2015, even when other agenda items in multilateral climate talks were deadlocked.98 On the ground, most governments across Africa, Asia, Latin America, and the Caribbean have participated in some fashion in programmes of research, capacity-building, reform, and demonstration activities to operationalize REDD+ at the national level.99 We argue that the global emergence and spread of REDD+ can be largely explained by the different forms of flexibility that we have identified above as characterizing lawmaking in this field. To be sure, flexibility has been integral to efforts to present jurisdictional REDD+ as consistent with the principle of common but differentiated responsibilities and to allay the concerns of developing countries over equity and sovereignty.100 Moreover, because it has meant different things to different actors and it could be pursued in a wide variety of ways and contexts and designed in light of different priorities and standards, REDD+ has attracted extensive support from a large coalition of governments, international organizations, NGOs, and corporations concerned with climate change, forest governance, and sustainable development.101 The broad scope of jurisdictional REDD+ has meant that a wide array of developing countries have been able to participate and benefit from funding and support to address carbon emissions from a wide variety of forestry-related sources,102 including countries that have significant and less significant forest cover and those with high as well as low rates of deforestation.103

C. McDermott and others, ‘Operationalizing Social Safeguards in REDD+: Actors, Interests and Ideas’ (2012) 21 Environmental Science and Policy 63. 96 Jodoin (n 7) 56–63. 97 D. Humphreys, ‘The Politics of “Avoided Deforestation”: Historical Context and Contemporary Issues’ (2008) 10 International Forestry Review 433. 98 Viña, Leon and Barrer (n 80). 99 G. Cerbu, B. Swallow and D. Thompson, ‘Locating REDD: A Global Survey and Analysis of REDD Readiness and Demonstration Activities’ (2011) 14 Environmental Science and Policy 168. 100 Jodoin and Mason-Case (n 79) 271. 101 C. McDermott, K. Levin and B. Cashore, ‘Building the Forest–Climate Bandwagon: REDD+ and the Logic of Problem Amelioration’ (2011) 11 Global Environmental Politics 85. 102 T. Pistorius, ‘From RED to REDD+: The Evolution of a Forest-Based Mitigation Approach for Developing Countries’ (2012) 4 Current Opinion in Environmental Sustainability 638, 640; J.W. den Besten, B. Arts and P. Verkooijen, ‘The Evolution of REDD+: An Analysis of Discursive-Institutional Dynamics’ (2014) 35 Environmental Science & Policy 40, 42–3. 103 F. Seymour and J. Busch, Why Forests? Why Now? The Science, Economics, and Politics of Tropical Forests and Climate Change (Center for Global Development 2016). 95

Vice or virtue? Flexibility in transnational environmental law  297 The experimental ethos that defined the early stages of the transnational legal process for REDD+ and the ambiguity surrounding legal norms for REDD+ have also contributed to its ability to attract support and engagement. For one thing, the rapid and widespread diffusion of REDD+ resulted, in large part, from the creation of a wide variety of multilateral, bilateral, and non-governmental actors, institutions, and networks that mobilized finance, created capacity-building tools and initiatives, and established certification programmes to support national efforts to curb deforestation and forest degradation in developing countries.104 While there is little doubt that many different forms of flexibility inherent in the transnational legal process for REDD+ have played a critical role in the global emergence and diffusion of REDD+ during the latest decade, whether or not flexibility has been helpful to the implementation of REDD+ remains in question. There is evidence that REDD+ has made it possible for developing countries to adapt REDD+ to their national circumstances, but whether jurisdictional REDD+ programmes actually tackle relevant drivers of deforestation and forest degradation remains uncertain. For example, a review of 43 countries’ REDD+ readiness plans concluded that most proposed interventions did not address the large-scale drivers of deforestation, and mostly seemed to avoid targeting major actors associated with commodity-driven deforestation, who are likely to have considerable political clout in domestic policy processes.105 Concerns have been raised that the transnational legal process for REDD+ has become fragmented in ways that have hindered the effectiveness of REDD+ and increased risks of adverse social and environmental impacts. As Corbera and Schroeder argue, REDD+ has evolved into ‘a slew of unorchestrated, multi-level, multi-purpose and multi-actor projects and initiatives’ that ‘permeates multiple spheres of decision-making and organisation, creates contested interests and claims, and translates into multiple implementation actions running ahead of policy processes and state-driven decisions’.106 The flexibility given to developing countries in the design of jurisdictional REDD+ programmes, the variety of tools that exist for guiding these programmes, and the multiple standards that apply to different types of climate finance have resulted in a growing heterogeneity in the legal norms that have been constructed for REDD+.107 Indeed, sites of law have most notably varied in terms of the following aspects of the operationalization of REDD+: the scope of eligible activities;108 the nature and scale of incentives;109 the methodologies for establishing reference levels;110 the modalities for the measurement, reporting, and verification of emissions reductions;111 the appropriateness and

E. Corbera and H. Schroeder, ‘Governing and Implementing REDD+’ (2011) 14 Environmental Science & Policy 89. 105 G. Salvini and others, ‘How Countries Link REDD+ Interventions to Drivers in Their Readiness Plans: Implications for Monitoring Systems’ (2014) 9 Environmental Research Letters 074004. 106 Corbera and Schroeder (n 104) 93. 107 McDermott and others (n 95) 65; C. Streck and J. Costenbader, Standards for Results Based REDD+ Finance (Climate Focus 2012); Corbera and Schroeder (n 104). 108 Streck and Costenbader (n 107). 109 Ibid. 110 T. Chagas and others, Reference Levels: Concepts, Functions, and Application in REDD + and Forest Carbon Standards (Climate Focus 2013). 111 A. Gupta and others, ‘In Pursuit of Carbon Accountability: The Politics of REDD+ Measuring, Reporting and Verification Systems’ (2012) 4 Current Opinion in Environmental Sustainability 726. 104

298  Research handbook on transnational environmental law configuration of different sources of funding;112 and the relative importance of social and environmental safeguards, benefit sharing, and non-carbon benefits.113 Perhaps the most powerful example of fragmentation in the field of REDD+ is provided by the development of transnational certification programmes for project-based REDD+ activities. While the decision making of the UNFCCC COP has focused on legal norms relating to jurisdictional REDD+ activities at the national level, private certification programmes have constructed legal norms for the verification and validation of project-based REDD+ activities at the local level. Even though these certification programmes represent a departure from the legal norms for REDD+ developed within the UNFCCC, they have been used by developing country governments to implement REDD+ pilot projects. Certification programmes could feed into jurisdictional readiness efforts as well as influence legal practices at the transnational and international levels. However, in practice, significant differences between the purposes and methodologies of jurisdictional and market-based REDD+ initiatives have limited the influence of REDD+ projects on the development of REDD+ strategies at the national level.114 The loose definition of what constitutes a REDD+ initiative has resulted in a great variety of interventions being labelled as REDD+, which creates difficulties in identifying programmes with mechanisms that may or may not be in operation to reduce deforestation across different periods of time and geographies. For instance, even though conditional payments were the original defining element of REDD+, very few existing initiatives have actually implemented this core mechanism.115 More commonly, REDD+ programmes include a bundle of diverse interventions aimed at reducing deforestation and forest degradation, such as information measures (e.g., capacity-building and awareness-raising activities for local communities), institution-focused interventions (e.g., land tenure clarification, strengthening and creating local governance institutions, regulating forest access and deforestation), and non-conditional livelihood enhancements.116 The heterogeneity of REDD+ on the ground makes it difficult to conduct rigorous impact evaluations117 and to reach definitive conclusions on its effectiveness in ameliorating deforestation and forest degradation. The classic argument in favour of the cost-effectiveness generated by flexibility has been undermined by the role of development aid in REDD+ finance.118 REDD+ was first envisioned by many of its supporters as a global scheme that could eventually be financed

G.P. Salles, D.T.P. Salinas and S.R. Paulino, ‘How Funding Source Influences the Form of REDD+ Initiatives: The Case of Market versus Public Funds in Brazil’ (2017) 139 Ecological Economics 91. 113 McDermott and others (n 95); Jodoin (n 7). 114 G. Cerbu, D. Sonwa and B. Pokorny, ‘Opportunities for and Capacity Barriers to the Implementation of REDD+ Projects with Smallholder Farmers: Case Study of Awae and Akok, Centre and South Regions, Cameroon’ (2013) 36 Forest Policy and Economics 60; F. Bernard and others, ‘REDD + Projects and National-Level Readiness Processes: A Case Study from Kenya’ (2014) 14 Climate Policy 788; W.D. Sunderlin and others, ‘REDD+ at a Critical Juncture: Assessing the Limits of Polycentric Governance for Achieving Climate Change Mitigation’ (2015) 17 International Forestry Review 400. 115 C. Martius, A. Angelsen, A. Larson, P. Thu Thuy, D. Sonwa and B. Belcher, ‘Is REDD+ a Viable Theory of Change?’ in A. Angelsen, C. Martius, V. De Sy, A. Duchelle, A. Larson and T. Thuy Pham (eds), Transforming REDD+: Lessons and New Directions (CIFOR 2018). 116 A. Duchelle and others, ‘What Is REDD+ Achieving on the Ground?’ (2018) 32 Current Opinion in Environmental Sustainability 134. 117 Ibid. 118 A. Angelsen, ‘REDD+ as Result-Based Aid: General Lessons and Bilateral Agreements of Norway’ (2016) 21 Review of Development Economics 237. 112

Vice or virtue? Flexibility in transnational environmental law  299 through compliance carbon markets established in industrialized countries, but its integration with national or regional ETSs has yet to be realized.119 In addition, voluntary carbon markets have not been able to absorb REDD+ credits to the extent that was hoped for by many proponents,120 a scenario likely to have been created by the overall supply of REDD+ emissions reductions at a time when there has been decreasing demand and prices for carbon credits overall.121 Financing for REDD+ at national and subnational levels has thus been provided primarily through multilateral and bilateral donors as results-based aid.122 Most of this funding has been made available by a very small number of country donors (Norway, Germany, the United Kingdom, the US, and Australia) and relied on public funds for official development assistance.123 A significant part of these funds has been managed by multilateral institutions such as the World Bank, the Global Environment Facility, and the Green Climate Fund. The strict requirements and high transaction costs involved in the procedures to access REDD+ finance have been an obstacle for recipients and a challenge to the notion that REDD+ would be a cost-effective option.124 Finally, the flexibility potentially afforded to developed countries to offset their emissions with REDD+ credits has raised concerns about the possibility that the mechanism would preserve the unsustainable practices and patterns of behaviour that led to the status quo. Arguments have been made against allowing rich countries to purchase cheap forest offsets from developing countries, since that could diminish the pressure to reduce developed countries’ domestic emissions from fossil fuels.125 This concern was one of the reasons why avoided deforestation and forest degradation were not included as mitigation options under the CDM, and it has continued to be raised during the UNFCCC REDD+ negotiations.126 Given that a global carbon compliance market that would allow these offsets to happen is unlikely to materialize in the near future, the concerns surrounding this flexibility device cannot be properly assessed. There are potential measures, however, that could be taken to address the issue, such as limiting the number of offsets that developed countries could make in general, and in particular, with REDD+ credits.

5 CONCLUSION We have shown in this chapter that the concept of flexibility is closely associated with multiple arrays of legal practices and intellectual currents that have influenced the field of transnational environmental law, including multilevel governance, the rational design of international

Duchelle and others (n 116), 134. Ibid. 121 K. Hamrick and M. Gallant, Fertile Ground: State of the Forest Carbon Finance 2017 (Forest Trends 2017), available at www​.forest​-trends​.org/​wp​-content/​uploads/​2018/​01/​doc​_5715​.pdf. 122 Angelsen (n 118). 123 Directorate-General for Climate Action (European Commission), Study on EU Financing of REDD+ Related Activities, and Results-Based Payments Pre and Post 2020: Sources, Cost-Effectiveness and Fair Allocation of Incentives (Final Report) (Publication Office of the European Union 2018). 124 S. Atmadja, S. Arwida, C. Martius and P. Thu Thuy, ‘A Transaction among Equals, or an Uneven Playing Field?’ in Angelsen and others (n 115). 125 Seymour and Busch (n 103). 126 Ibid. 119 120

300  Research handbook on transnational environmental law institutions, market-based and new governance arrangements. Flexibility can serve various purposes in influencing the form and substance of multilateral, bilateral, and private forms of transnational environmental governance. As our discussion of the role of flexibility in the transnational legal process for REDD+ demonstrates, it is reductive to think of flexibility as inherently virtuous or flawed. The flexible legal processes and practices through which REDD+ was first developed and launched undoubtedly facilitated the emergence of a shared consensus about the inclusion of forests in the climate regime and increased the uptake of REDD+ initiatives all over the world. In this sense, flexibility in the REDD+ transnational legal process has delivered the benefits of building legitimacy and allowing for experimentation and learning. However, the same flexibility that fostered general agreement and reflexivity potentially compromised the environmental effectiveness of REDD+ as a mechanism to reduce deforestation and forest degradation. The multitude of norms created across different sites of law to operationalize REDD+ have resulted in a wide array of initiatives falling under the umbrella of ‘REDD+’, which has made it difficult to verify tangible results. The purported cost-effectiveness of the mechanism has also been called into question due to the over-reliance on results-based aid to finance initiatives. The issue of offsets contributes to criticism that the flexibility found in REDD+ schemes preserves unsustainable practices and patterns of behaviour. For these reasons, the role of flexibility in the REDD+ transnational legal process has achieved mixed results, at times pushing the legal process forward, and at other times jeopardizing the mechanism’s effectiveness. The future of REDD+ and similar mechanisms likely lies in striking a better balance that allows actors to reap the potential benefits of flexibility, while avoiding its pitfalls. Considerable research has examined the emergence, evolution, and effectiveness of REDD+. Yet we still know very little about the impacts of flexibility in other fields of transnational environmental law. Rigorous research is needed to better understand the role that flexible legal mechanisms and practices can play in generating participation in transnational environmental initiatives, assess their contributions to addressing environmental problems, and to critically examine their implications for social equity and environmental justice.

18. Judicial transnationalization Geetanjali Ganguly

1 INTRODUCTION The proliferation of transboundary environmental problems has engendered unconventional modes of regulatory intervention by a range of actors beyond the nation state. The emergence of transnational environmental governance has also compelled national and sub-state actors to participate in governance, norm creation and standard-setting activities in collaboration with their analogues and counterparts in other countries. The global judicial community is no exception; environmental problems and existential threats like climate change have prompted courts to re-evaluate their role and become major players and stakeholders in transnational environmental governance. This chapter adopts a wider analytic gaze than existing legal scholarship on ‘judicial globalization’1 and considers both conventional courtroom adjudication from around the world and judicial networking initiatives on environmental law outside the courtroom. The alternative terminology of ‘judicial transnationalization’ is therefore employed here as it is pertinent for describing the expanded range of contemporary judicial interactions, activities and initiatives beyond traditional courtroom settings which may nevertheless have significant regulatory implications. This chapter contends that through their activities both within and beyond the courtroom, national courts and judges are co-producing a new and emergent body of transnational environmental law and jurisprudence. This is most apparent with respect to climate change, which has spurred litigation around the world.2 Judicial transnationalization is ultimately a response to transboundary environmental problems with planetary dimensions like climate change, biodiversity loss and water justice which cannot be addressed in isolation by individual states. Scholarly attention is increasingly being devoted to examining the role of courts with respect to climate change. Courts are already thought of as ‘battlefields in climate fights’3 and ‘have become a critical forum in which the future of greenhouse gas emission regulation and responsibility are debated’.4 Moreover, these new bodies of transnational environmental jurisprudence and judicially generated soft law are a hybrid by-product of transdisciplinary interactions and collaborations between science and law. Such judicially fostered knowledge A.-M. Slaughter, ‘A Global Community of Courts’ (2003) Harvard International Law Journal 41; A.-M. Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 4; C. Baudenbacher, ‘Judicial Globalization: New Development or Old Wine in New Bottles?’ (2003) 38 Texas International Law Journal 505; M. Flaherty, ‘Judicial Globalization in the Service of Self-Government’ (2006) 20 Ethics & International Affairs 4. 2 D. Markell and J.B. Ruhl, ‘An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?’ (2012) 64 Florida Law Review 15. 3 J. Schwartz, ‘Courts as Battlefields in Climate Fights’ (New York Times, 27 January 2010), www​ .nytimes​.com/​2010/​01/​27/​business/​energy​-environment/​27lawsuits​.html. 4 W.C.G. Burns and H. Osofsky (eds), Adjudicating Climate Change: State, National and International Approaches (Cambridge University Press 2009). 1

301

302  Research handbook on transnational environmental law practices and the resulting jurisprudence signify a shift away from a purely statist conception of environmental governance towards the transnationalization of environmental regulation and law writ large in recent years.5 Three major processes animate and evidence judicial transnationalization on environmental protection: (i) the growth of networks and alliances cohering around a newfound consciousness and motivation to address transboundary environmental problems by domestic courts and judges around the world; (ii) the judicial certification of Intergovernmental Panel on Climate Change (IPCC) assessments as a knowledge base for climate litigation; and (iii) the judicial revision, reinterpretation and application of existing constitutional doctrines to environmental issues in legal systems around the world. Section 2 defines judicial transnationalization and considers the ways in which domestic courts concurrently operate as transnational institutions when they adjudicate matters of global concern. The emphasis of the discussion is on the proliferation of transnational judicial networks on environmental law in recent years. Section 3 posits that recent climate adjudication provides strong evidence of judicial transnationalization in environmental law. Two principal processes indicate that national courts increasingly act in a transnational capacity: (i) the certification of IPCC assessments and the consolidation of a ‘global information commons’6 – a shared scientific knowledge base – for climate change governance; and (ii) the application of constitutional doctrines to enable environmental and climate change claims to be adjudicated. The cross-citation of foreign judgments by national courts is also considered in this context. Section 4 offers concluding observations and outlines prospects for future research on this nascent development.

2

THE GROWTH OF TRANSNATIONAL JUDICIAL NETWORKS

2.1

Transnational Networked Governance

Transnational governance in its widest sense is understood to encapsulate a plethora of activities beyond the state, performed by a range of actors. Many of these actors also act on behalf of states and exercise ‘state-like’ functions. Transnationalism is therefore a phenomenon in which the state itself acts transnationally through its institutions.7 Transnational governance occurs ‘when networks operating in the transnational sphere authoritatively steer constituents

V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 Transnational Environmental Law 2; H. Bulkeley and others, Transnational Climate Change Governance (Cambridge University Press 2014); O. Dilling and T. Markus, ‘The Transnationalisation of Environmental Law’ (2018) 30 Journal of Environmental Law 2. 6 Information commons is used to denote a shared knowledge base. For example, the concept of ‘intellectual commons’ refers to the ‘non-commercial spheres of intellectual production, distribution and consumption which are reproduced outside the circulation of intangible commodities and money’. See A. Broumas, ‘The Ontology of the Intellectual Commons’ (2017) 11 International Journal of Communication 1. 7 H. Bulkeley and others, Transnational Climate Change Governance (Cambridge University Press 2014) 7. The literature from the field of global administrative law is also pertinent in this regard. See B. Kingsbury, N. Krisch and R. Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68(3/4) Law and Contemporary Problems 1. 5

Judicial transnationalization  303 towards public goals’.8 These definitions of transnationalism in international relations scholarship also align with recent legal scholarship on ‘transnational regulation’ which is ‘a subset of transnational governance’,9 and is defined as: The deliberate exercise of influence on a target’s behaviour (designed either to stabilize or modify this behaviour), performed with a certain degree of authority and persistence … in the pursuit of public interest goals [including] environmental protection goals.10

Common to all these definitions is the recognition that transnationalism comprises the exercise of multiple and varying forms of authority beyond the state or within the state but with transboundary implications by actors of all different stripes including private, public, non-state and sub-state actors. Moreover, these exertions of authority are oriented towards the realization of public interest goals. Key functions of transnational governance networks include knowledge production, information diffusion and ‘the establishment of a set of norms, rules or standards outside of the intergovernmental arena’ that are geared towards ‘steering constituents’ and achieving regulatory objectives.11 A thesis of ‘transnationalization of environmental law’ posits that non-binding transnationally generated norms achieve binding force through their implementation and enforcement under domestic and international law.12 Such transnational norms tend to emerge where there is a gap or silence in the law and can be alternatively characterized as interstitial norms or soft law. In this nascent transnationalization paradigm of environmental law, the role of courts has received surprisingly little scholarly attention. Judicial power remains a relatively undertheorized component of transnational environmental law and governance. The above framing of transnational law and governance allows for an enlarged conceptualization of judicial power as simultaneously national and transnational in character. National courts are, after all, prominent sub-state actors that routinely preside over matters which inherently touch on foreign affairs and which have transboundary dimensions. Nowhere is this more apparent than in the field of environmental law, where national courts are increasingly called upon to adjudicate matters relating to climate change, air and water pollution, the transportation of hazardous waste, nature and biodiversity conservation, water justice and the management of oceans. This section makes a case for casting a special spotlight on judicial networks in the arena of environmental law and argues that the interactions between judges outside the courtroom merit scrutiny due to their enormous norm-generative and regulatory potential. 2.2

Judicial Networks on Environmental Law

Networks, assemblages, associations and communities of dialogue are all terms currently in circulation in the social sciences. They are commonly, and sometimes interchangeably, used to describe the units within which epistemological and regulatory activities are performed by various actors. Bruno Latour’s Actor Network Theory (ANT) has traditionally been employed 8 L. Andonova, M.M. Betsill and H. Bulkeley, ‘Transnational Climate Governance’ (2009) 9 Global Environmental Politics 2, 56. 9 Heyvaert (n 5) 208. 10 Ibid. 11 Andonova and others (n 8) 63–4. 12 Dilling and Markus (n 5) 180.

304  Research handbook on transnational environmental law by science studies scholars to derive a constructivist understanding of knowledge production within scientific networks – a methodology that has since been popularized in the social sciences and applied to many other fields of enquiry.13 A constructivist-ANT analytical framework is also employed here as it is pertinent for examining the role of judicial networks and their knowledge-based, standard-setting and norm-generative activities. This is undertaken to develop a richer understanding of how judges are involved in the authoring and diffusion of environmental and climate change norms in varied, less formal ways and in different capacities, including as environmental advocates and activists. Through their involvement in transnational governance networks, domestic courts and judges increasingly act in concert and cooperate with peers from other jurisdictions in relation to environmental law.14 The term ‘network’ is understood and applied here as an analytical tool and denotes a relatively stable set of relationships which are non-hierarchical and interdependent in nature linking a variety of actors, who share common interests with regard to a policy and who exchange resources to pursue these shared interests, acknowledging that cooperation is the best way to achieve common goals.15

Global judicial dialogues and networks are key constitutive components of transnational governance networks.16 Beyond the courtroom, judicial conferences and networking events constitute salient examples of judicial transnationalization. Judicial networks comprise ‘fora for the exchange of ideas about legal jurisprudence [and the development] of practical mechanisms for court management’.17 Furthermore, networked judicial interactions indicate that judges see themselves as part of a ‘common enterprise’18 as evidenced by the formation of judicial coalitions that often cohere around particular issues. Prime examples include the Global Judicial Institute on the Environment (GJIE), the European Union Forum of Judges for the Environment (EUFJE) Network and the Association of Southeast Asian Nations (ASEAN) Chief Justices’ Roundtable on the Environment. Common goals for judicial networks involve strengthening the environmental rule of law and developing jurisprudence.19 Any examination of judicial networks is incomplete without a consideration of individual judges, their motivations and the judicial politics behind such efforts. Judicial transnationalization is as much a governance response to real-world (environmental) problems and regulatory challenges as it is a product of individual and collective judicial agency and initiative. Free

13 B. Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (Oxford University Press 2007); B. Latour, Science in Action (Harvard University Press 1987). 14 Bulkeley and others (n 7) 7; Slaughter (n 1). 15 T. Börzel, ‘What’s So Special about Policy Networks? An Exploration of the Concept and Its Usefulness in Studying European Governance’ (1997) European Integration Online Papers No. 16, 1; and T. Börzel, ‘Organizing Babylon – On the Different Conceptions of Policy Networks’ (1998) Public Administration 76, 253, 254. 16 Slaughter (n 1). 17 R. Pepper, ‘The Role of Judicial Networking and Information Sharing in Promoting and Implementing Environmental Law’ (2016), www​.lec​.justice​.nsw​.gov​.au/​Documents/​Speeches​ %20and​%20Papers/​PepperJ/​PepperJ​%20Judicial​%20Networking​%20in​%20Promoting​%20Mutual​ %20Assistance​.pdf. 18 Slaughter (n 1) 1104. 19 Pepper (n 17).

Judicial transnationalization  305 from the separation of powers, which may circumscribe the exercise of judicial power in the courtroom, their participation in and membership of transnational judicial networks allows judges to take on a more activist role and engage in advocacy on certain causes outside the courtroom. Pioneers in transnational judicial networking in environmental law include judges from Australia, Brazil, the United Kingdom and Pakistan. The judges of the New South Wales (NSW) Land and Environment Court (LEC) in Australia are among the strongest proponents of transnational judicial networking on environmental law. The Chief Judge of the LEC, Justice Brian Preston, has written and spoken extensively at conferences about the important contribution of judges to climate litigation.20 He has also recently been involved in several notable judicial networking initiatives as both a founding member of the Global Judicial Institute on the Environment21 (discussed below) and a co-author of the ‘Climate Principles for Enterprises’ – a soft law instrument prescribing legal obligations for private enterprises in relation to climate change.22 Similarly, his colleague, Justice Rachel Pepper, has outlined the advantages of judicial networks on environmental law in the following emphatic terms: The utility of judicial networks resonates loudly in the field of environmental law. This is because environmental law remains a relatively new discipline compared to other more established legal fields, and because it is reactive to scientific and technological advancements (for example, the need to eliminate greenhouse gas emissions) and social and economic developments. These characteristics require environmental law to be dynamic and responsive, something which judicial and legal networks facilitate and encourage.23

Judges have long participated in global conferences on the environment, including the Rio World Summit in 1992. However, it was only a decade later, at the 2002 Global Judicial Symposium on Sustainable Development and the Role of Law in Johannesburg, that the global judicial community unequivocally acknowledged its important role in interpreting and enforcing environmental law, as embodied by the Johannesburg Principles on the Role of Law and Sustainable Development.24 The symposium was a watershed for transnational judicial networking as it led to the development of global training programmes in environmental law for judges and the 2004 United Nations Environment Programme (UNEP) Judicial Handbook on Environmental Law. Eminent jurists who have spearheaded such networking initiatives in environmental law include Antonio Benjamin and Mansoor Ali Shah, the Chief Justices of the Brazilian and Pakistani Supreme Courts, respectively, as well as the United Kingdom (UK) Supreme Court

B. Preston, ‘The Contribution of the Courts in Tackling Climate Change’ (2016) 28 Journal of Environmental Law 1, 11–17. 21 IUCN World Commission on Environmental Law, ‘Global Judicial Institute on the Environment’ (2016), www​.iucn​.org/​commissions/​world​-commission​-environmental​-law/​our​-work/​global​-judicial​ -institute​-environment. 22 Expert Group on Climate Obligations for Enterprises, ‘Climate Principles for Enterprises’ (2018), https://​climateprincipl​esforenterprises​.org/​. 23 Ibid. 24 Lord Carnwath, ‘Climate Justice and the Global Pact: Judicial Colloquium on Climate Change and Law in Lahore, Pakistan’ (UK Supreme Court, London, 26 February 2018), www​.supremecourt​.uk/​docs/​ speech​-180226​.pdf; UNEP, ‘Report of the Global Judges Symposium on Sustainable Development and the Role of Law’ (2002), https://​digitallibrary​.un​.org/​record/​484610/​files/​UNEP​_GC​_22​_INF​_24​-EN​ .pdf. 20

306  Research handbook on transnational environmental law Justice Lord Carnwath. These judges are also the founding members of the Global Judicial Institute for the Environment (GJIE), inaugurated in 2016 at the first International Union for Conservation of Nature (IUCN) World Environmental Law Congress in Rio. The GJIE is a fitting example of a transnational judicial network which specializes in environmental law. Its establishment provides a strong indication of the existence of a maturing and robust transnational judicial dialogue on environmental law, since it is an initiative that commands widespread support from courts and judges around the world, with countries like India, Brazil, Australia and China serving as key proponents and partners.25 Several judges have recognized that climate change is the most profound and urgent challenge for courts around the world. For instance, Justice Antonio Benjamin, Chair of the IUCN World Commission on Environmental Law and a founding member of the GJIE, has declared climate change to be ‘the single most important legal issue facing judges globally’.26 He has stated that a key objective of the GJIE is to educate judges on how to deal with climate change issues as well as building judicial capacity in this regard.27 It is therefore unsurprising that transnational judicial coordination has intensified in recent years in the sphere of climate change governance. The existence of constitutionalized environmental rights and specialist environmental courts in many Asian and Latin American states arguably has also contributed to the proliferation of judicial conferences on the environment in the Global South. These provide judges with the opportunity to learn directly from one another and collectively develop pathways and strategies for addressing identical or analogous environmental and climate change claims. Brazil has often taken on a de facto leadership role in developing pathways and strategies in environmental law and, in general, promoting transnational judicial dialogue on environmental issues. It has played host to many major environmental law conferences, dating back to the 1992 Rio World Summit. The Brazilian Association of Judges is also one of the key organizers of the IUCN World Environmental Law Congress, the first session of which Brazil also hosted. Taken together, these various interactions between judges outside the courtroom indicate that the impetus towards judicial transnationalization intensifies due to widely held concerns about how courts ought to confront and address planetary environmental challenges. Alongside climate change, judicial networking events and conferences also cast a spotlight on other major environmental issues such as biodiversity loss and water justice. Examples abound, with notable ones in recent years including the annual ASEAN Chief Justices’ Roundtable on the Environment (CJRE) and the 2017 Conference of Judges and Prosecutors on Water Justice. These networked judicial initiatives and interactions merit close attention as they may have significant regulatory implications and a norm-generative character, ultimately resulting in the production of soft law frameworks on environmental protection. 2.3

Judicially Generated Soft Law on Environmental Protection

Transnational judicial networking, particularly under the auspices of UNEP and the IUCN World Commission on Environmental Law, has provided a platform for the global judicial

IUCN (n 21). Justice A. Benjamin as quoted in Justice M. Wilson, ‘Global Judicial Institute for the Environment: Judicial Response to a Planet under Siege’ (2017), www​.iucn​.org/​sites/​dev/​files/​content/​documents/​ 2017/​wcel​_mike​_wilson​_pres​_judicial​_response​_to​_a​_planet​_under​_siege​.pdf. 27 Ibid. 25 26

Judicial transnationalization  307 community to undertake norm-generative and standard-setting initiatives. Judges from around the world have assumed a transnational role as co-authors of several notable environmental law declarations in recent years. Such soft law instruments include the GJIE Charter, the IUCN World Declaration on the Environmental Rule of Law, the Global Pact for the Environment and the Brasilia Declaration of Judges on Water Justice.28 Article II of the GJIE Charter outlines the GJIE’s mission ‘to support the role of courts and tribunals in applying and enforcing environmental laws and promoting the environmental rule of law’.29 Furthermore, the Charter envisages that this mission will be carried out through programmes on capacity-building, mutual exchange and knowledge-sharing, establishment of a database on environmental cases and judgments, technical assistance, and convening of conferences and symposia.30 Similarly, the IUCN World Declaration enshrines several important environmental principles, duties and rights, including ‘the obligation to protect nature, right to nature and rights of nature, right to environment, ecological sustainability and resilience, in dubio pro natura, intragenerational equity and intergenerational equity’.31 These principles are not new and derive from earlier instruments such as the Rio Declaration on Environment and Development. However, the recently launched 2017 Global Pact on the Environment seeks to succinctly summarize these key environmental law principles as the basis for a new binding international treaty to complement and sit alongside the Paris Agreement.32 Lord Justice Carnwath has observed that the Global Pact constitutes an up-to-date enumeration of universal principles of environmental law agreed at the highest level ‘like a Global Common Law of the Environment’.33 Although it is unclear whether the 2017 Global Pact will attain the status of hard law, it is nonetheless highly probable that such soft law instruments will guide and inform judicial thinking, interpretation and jurisprudence in environmental cases in the foreseeable future. As products of transnational judicial dialogue, such instruments already carry considerable weight in certain national courts and serve as adjudication manuals. The GJIE initiative and its outputs ultimately demonstrate that some contemporary environmental law is being generated through transnational judicial networks. At a minimum, these incipient environmental law frameworks can be considered to reflect opinio juris and constitute soft law. They also carry a significant potential to crystallize into hard law over time through recurrent judicial interpretation, application and enforcement under domestic law. This is aptly exemplified by the jurisprudence of Chief Justice Mansoor Ali Shah of the Supreme Court of Pakistan (one of the GJIE’s founding members), who recently incorporated key environmental 28 Ecolex, ‘World Declaration on the Environmental Rule of Law’ (2016), www​.ecolex​.org/​details/​ literature/​world​-declaration​-on​-the​-environmental​-rule​-of​-law​-mon​-091064/​; IUCN, ‘Global Pact for the Environment’ (2017), www​.iucn​.org/​sites/​dev/​files/​content/​documents/​draft​-project​-of​-the​-global​ -pact​ -for​ -the​ -environment​ .pdf; IUCN, ‘Brasilia Declaration of Judges on Water Justice’ (2018), www​.iucn​.org/​sites/​dev/​files/​content/​documents/​brasilia​_declaration​_of​_judges​_on​_water​_justice​_21​ _march​_2018​_final​_as​_approved​.pdf. 29 IUCN World Environmental Congress, ‘Charter of the Global Judicial Institute for the Environment’ (2016), www​.iucn​.org/​sites/​dev/​files/​content/​documents/​charter​-of​-the​-global​-judicial​-institute​-rio​-de​ -janeiro​-29​-april​-2016​-​_0​.pdf. 30 Ibid, Art. III. 31 World Declaration on the Environmental Rule of Law (n 28) Principles 1, 2, 3, 4, 5, 7, 8. 32 Global Pact for the Environment (n 28); Lord Carnwath (n 24). 33 Lord Carnwath, ‘Judges and the Common Laws of the Environment: At Home and Abroad’ (2014) 26 Journal of Environmental Law 2, 187.

308  Research handbook on transnational environmental law law principles into Pakistani law by applying them directly to a constitutional case concerning a survey of mining projects.34 More specifically, he transplanted the Latin American environmental law principle of in dubio pro natura, prescribing that ‘matters shall be resolved in a way most likely to favour the conservation and protection of the environment’,35 to Pakistani law. This exercise in judicial creativity indicates that soft law principles ‘can sometimes be given hard edges and so provide practical remedies within domestic courts’.36 2.3.1 Water justice The World Water Forum, the largest global summit on water, is a salient example of a transnational network involving judges, which is geared towards the coordination of water management practices and regulatory initiatives across states. Participating legal and policy professionals recognize that water governance is the subject of growing international concern, particularly as water crises begin to mount and existing water sources are threatened.37 Issues such as water scarcity and inequities pertaining to water access, use, management and control are just some of the factors contributing to global water crises.38 Climate change will exacerbate these crises and bring about new ones due to changes in global hydrological cycles.39 Furthermore, the increased privatization and commodification of water perpetuates global inequity by limiting access to clean water for the poorest and most vulnerable communities. While water crises take different forms, they affect both the Global North and the Global South, which provides common ground for international and transnational regulatory cooperation and coordination. In recent years, the global judicial community has spearheaded initiatives on water justice. The Conference of Judges and Prosecutors on Water Justice in March 2018 at the eighth World Water Forum culminated in the adoption of the Brasilia Declaration of Judges on Water Justice. This soft law instrument enshrines several fundamental environmental law principles in relation to water conservation and protection and the promotion of water justice. They include the principle of environmental stewardship, the prevention and precautionary principles, the intergenerational equity principle, in dubio pro aqua and the polluter pays principle.40 The Brasilia Declaration constitutes the clearest articulation of transnational judicial thinking on water justice to date. Indeed, as observed by Denise Hamu (the UNEP representative for Brazil), the Water Forum’s recent ‘inclusion of judges and prosecutors is an important step forward in understanding the role of the law in the conservation of freshwater [and] the Brasilia declaration will be fundamental in coalescing dialogue and action’.41

Maple Leaf Cement Factory v EPA WP No. 115949/2017. Note: Chief Justice Mansoor Ali Shah was also a presiding judge in the seminal climate change case of Leghari v Pakistan in which he issued the leading judgment. 35 See Principle 15 of the Rio Declaration, and Principle 3 of the IUCN World Declaration on the Environment. 36 Lord Carnwath (n 33). 37 F. Sultana, ‘Water Justice: Why It Matters and How to Achieve It’ (2018) 43 Water International 4, 483. 38 Ibid, 484. 39 Ibid. 40 Brasilia Declaration, Principles 5, 6, 7. 41 D. Hamu, ‘Brasilia Declaration of Judges on Water Justice’ (2018), www​.iucn​.org/​commissions/​ world​-commission​-environmental​-law/​wcel​-resources/​brasilia​-declaration​-judges​-water​-justice. 34

Judicial transnationalization  309 Such judicial initiatives have served as a springboard for transnationalization on this issue, as evidenced by the operationalization and enforcement of the Brasilia principles by the founding judges in their home jurisdictions. Courts in Australia and Brazil are leading the way with a maturing body of jurisprudence on water justice. In Australia, the justices of the NSW LEC routinely apply the precautionary principle in water cases. For example, in David Kettle Consulting Pty Ltd v Gosford City Council,42 the LEC refused to make permanent a development consent for the extraction of groundwater for bottling, limiting the consent period to three years. It ordered continual monitoring of groundwater extractions and the cumulative compilation of information to enable impact assessments to be conducted.43 Adopting a precautionary approach, the court acknowledged uncertainty in the existing data and in relation to climate change impacts on future water resources.44 In Brazil, which has a constitutional right to a healthy environment and grants the environment fundamental rights under its constitution, the Superior Court of Justice (STJ) has been pivotal to the development of jurisprudence and law on the protection and management of water sources. In its application and enforcement of environmental laws, the STJ is strongly guided by the principles of in dubio pro natura and in dubio pro aqua, meaning that the interpretation of a law that is most favourable to the protection of the environment (in this case, water sources) will always take precedence.45 Brazilian judges like Antonio Benjamin can be credited with fostering the inclusion of these principles in the Brasilia Declaration and encouraging their standardization and application on a transnational scale.

3

COURTS AS FACILITATORS OF TRANSNATIONAL ENVIRONMENTAL LITIGATION

Transboundary environmental problems like climate change and biodiversity loss have been a major catalyst for judicial transnationalization over the past decade. First, climate change is a threat multiplier with deleterious implications for many other environmental issues including biodiversity loss, nature conservation, fisheries management, deforestation, ocean acidification and transboundary air and water pollution. The complex interconnections and synergies between contemporary environmental problems have made it incumbent on courts to address environmental protection more holistically and cooperatively across borders. Climate change presents courts with unique challenges and opportunities to rethink and explicitly frame environmental protection as a transnational responsibility. Secondly, as the human cost of climate change mounts, courts are being called upon to adjudicate a range of claims pertaining to loss and damage, human rights violations and deficient climate change governance. The sheer complexity and increasing volume of climate litigation have compelled judges to enter into transnational dialogues with a view to developing coordinated responses and redefining

[2008] NSWLEC 1385; B. Preston, ‘The Judicial Contribution to Water Justice: The Australian Experience’ (2018) 48 Environmental Law Reporter 10580. 43 Ibid. 44 Ibid. 45 J.R.M. Leite and M. Demaria Venancio, ‘Environmental Protection in Brazil’s High Court: Safeguarding the Environment through a Rule of Law for Nature’ (2017) 77 Sequencia 1, 38–9; see Brasilit v State Public Prosecutor’s Office Rio de Janeiro (2013) (STJ). 42

310  Research handbook on transnational environmental law and adapting their own role to meet the challenge. It is argued here that courts have become facilitators of transnational climate litigation in two principal ways: (i) through the certification of IPCC assessments as a universal knowledge base or ‘global information commons’ for policymaking and litigation; and (ii) through the updating and revision of constitutional and legal doctrines to enable climate change claims to be adjudicated. 3.1

The Judicial Certification of IPCC Assessments

The distinctiveness of climate litigation relative to other types of environmental and public health litigation can be partly attributed to the unique character and status of IPCC assessments, which constitute the core evidentiary basis of many climate change lawsuits. A key difference between IPCC assessments and other scientific evidence submitted in environmental litigation is that the latter comprise studies that are generally subject to vigorous cross-examination in courts and ongoing contestation in the wider scientific community. In environmental and public health litigation on issues with respect to which there is greater scientific disagreement or uncertainty (e.g., epidemiological debates about cancer causes, air and water pollution sources, etc.) courts are likely to consider and evaluate multiple expert testimonies. In contrast, recent climate litigation indicates that the possibility for serious scientific disagreement and contestation in relation to IPCC assessments is minimized due to their near-universal acceptance as extensively peer-reviewed and high-consensus knowledge outputs.46 The report of IPCC Working Group I on the physical science basis of climate change is the product of universally validated methodologies within the climate science community, namely, global circulation models (GCMs).47 Many of the studies reviewed involve GCMs, which are widely used by climate scientists around the world and accredited by government scientific agencies like the United States’ (US) National Aeronautics and Space Administration (NASA) and National Oceanic and Atmospheric Administration (NOAA). As such, IPCC assessments can be considered to constitute sufficient evidence of the anthropogenic basis of climate change in a court of law. While the epistemic authority to initially evaluate and certify climate science reposes in the IPCC, an examination of high-profile climate adjudication reveals that courts are participating in secondary processes of sorting ‘good’ (or well-constructed) science from ‘bad’ (or poorly constructed) science. Massachusetts v Environmental Protection Agency (EPA) (2007)48 and Urgenda v The Netherlands (2015)49 constitute salient examples of the judicial evaluation and certification of IPCC climate science – processes that have achieved critical momentum through more recent waves of climate adjudication. Massachusetts v EPA typically has been hailed by

The IPCC’s Fifth Assessment Report (AR5) states with 95% confidence that human activities are the main cause of climate change in the past 100 years. AR5 constitutes a synthesis of all published and peer-reviewed climate science studies. See IPCC, Fifth Assessment Report (Cambridge University Press 2014), www​.ipcc​.ch/​assessment​-report/​ar5/​. 47 Also known as ‘global climate models’. Both terms are used interchangeably and acronymized as GCMs, which are the main methodological tools used in the detection, attribution and prediction of global climate change. W. Goodwin, ‘Global Climate Modeling as Applied Science’ (2015) 46 Journal for General Philosophy of Science 2, 339. 48 Massachusetts v EPA 127 S. Ct. 1438, 529. 49 Stichting Urgenda v Government of the Netherlands (Ministry of Infrastructure and the Environment), ECLI:​NL:​RBDHA:​2015:​7145, Rechtbank Den Haag, C/09/456689/HA ZA 13-1396. 46

Judicial transnationalization  311 legal scholars as a landmark case because it marked the first time an American federal court directly addressed climate change. The US Supreme Court famously ruled that greenhouse gases (GHGs) may ‘unambiguously … be regulated as an “air pollutant”’ by the EPA under the Clean Air Act (CAA).50 The case also marks the first time the Supreme Court declared American municipal courts as appropriate forums for adjudicating climate change matters and, by implication, for reviewing climate science underlying litigants’ claims. Perhaps most importantly, it is a watershed in the history of climate litigation and adjudication because it amounted to an epistemic victory for the climate science community due to the Supreme Court majority’s unequivocal acceptance and endorsement of IPCC assessments as sufficiently probative of the anthropogenic causes of climate change.51 The case is also a pertinent example of strong judicial signalling to regulators to act on existing scientific information showing evidence of harm to human health and the environment from anthropogenic GHGs. This culminated in the EPA’s endangerment finding on GHGs in 2009. In a similar vein, The Hague District Court’s 2015 ruling in Urgenda v The Netherlands reinforced the status of IPCC assessments as a core knowledge base for climate litigation and regulation. Based on the arguments presented by the parties and scientific evidence submitted by the plaintiff, Urgenda, namely IPCC assessments, The Hague District Court accepted that a ‘causal link can be assumed between Dutch greenhouse gas emissions, climate change and the effects (now and in the future) on the Dutch living climate’.52 Finding in favour of Urgenda (and the almost 900 Dutch citizens it represents) and accepting the state of climate science as established by IPCC assessments as fact, the court ordered the Dutch government to reduce the Netherlands’ GHG emissions by 25% below 1990 levels by 2020.53 The court’s decision was upheld on appeal on 9 October 2018.54 Notably, the appeal decision followed in the wake of the IPCC’s special report a week earlier emphasizing the urgency and importance of pursuing aggressive emissions reductions to avert a projected catastrophic 3°C warming scenario.55 It is therefore entirely plausible that The Hague Appeal Court was cognizant of the IPCC’s special declaration and its approach to the case may have been, at least partly, informed by it. The judicial certification of IPCC assessments in these high-profile climate change cases has had a profoundly mimetic transnational impact, serving to inspire recent waves of climate litigation around the world from Germany to New Zealand. The German case of Saul Luciano Lliuya v RWE again exemplifies the judicial acceptance of IPCC assessments as a minimum evidentiary baseline for establishing climate causation. Saul Lliuya, a Peruvian farmer, filed a lawsuit in Germany against the German coal company RWE for climate change damage in Peru. Lliuya alleges that RWE’s emitting activities have caused major climate change impacts,

Massachusetts v EPA (n 48). Ibid. 52 Urgenda v The Netherlands (n 49) [4.90]. 53 Ibid, [5.1]. 54 A. Neslen, ‘Dutch Appeals Court Upholds Landmark Climate Change Ruling’ (The Guardian, London, 9 October 2018), www​.theguardian​.com/​environment/​2018/​oct/​09/​dutch​-appeals​-court​-upholds​ -landmark​-climate​-change​-ruling. 55 In October 2018, the IPCC published a special report on the impacts of global warming at 1.5°C above pre-industrial levels, warning that drastic societal changes are required over the next 12 years to prevent the worst impacts of anthropogenic climate change, including stabilizing atmospheric warming between 1.5°C and 2°C. At current projections, the world is hurtling towards 3°C. IPCC, Special Report: Global Warming of 1.5°C (Cambridge University Press 2018), www​.ipcc​.ch/​report/​sr15/​. 50 51

312  Research handbook on transnational environmental law such as glacial melt, which are likely to result in the overflowing of the Palcacocha glacial lake above the Andean town of Huaraz, and which have placed both his home and town at high risk of flooding.56 The plaintiff is seeking a 17,000 euro/US$21,000 damages contribution from RWE towards the cost of a dam to protect the 120,000 people at risk. The plaintiff argues that RWE ought to bear such climate damage costs in light of its 0.47% historic contribution to global GHG emissions.57 The plaintiff’s case relies substantially on climate science, including a combination of IPCC assessments and studies which have, over several years, concretely documented specific climate change impacts, such as glacial melt, in the Peruvian Andes.58 The IPCC has exhibited ‘a very high degree of confidence’ in climate change-induced glacial retreat in the Andes.59 While the Essen District Court initially dismissed the plaintiff’s case, it succeeded on appeal at the Higher Regional Court in Hamm on 13 November 2017. This constitutes a landmark precedent for private climate litigation against large corporate emitters and increases the likelihood of analogous cases being filed across Europe and beyond. At the oral hearing, the Hamm court held the plaintiff’s appeal admissible and opined that his claims had merit and that the case is likely to proceed to the evidentiary stage.60 The court was satisfied that the plaintiff’s arguments on Andean glacial melt, as largely substantiated by IPCC assessments, demonstrated that the corporate defendant RWE could plausibly be considered at least partially responsible for contributing to the risk of flood damage to his hometown.61 Notably, the court considered GCMs to be an appropriate source of evidence and concluded that the question of whether RWE’s emissions are partially contributing to the endangerment of the plaintiff’s hometown is a scientific determination.62 In the New Zealand case of Thomson v Minister for Climate Change, the High Court also considered the IPCC’s Fifth Assessment Report (AR5) at length, noting that it ‘is the most comprehensive assessment of knowledge of climate change since its predecessor’ and the ‘best available synthesis of the literature and forms a sound body of evidence’.63 It concluded that the Minister for Climate Change ought to have reviewed AR5 when determining New Zealand’s Nationally Determined Contribution (NDC) under the Paris Agreement and its mitigation target.64 The court stressed that ‘IPCC Reports provide a factual basis on which [regulatory] decisions can be made’.65 It also heard and accepted evidence from several climate scientists including James Hansen, David Frame (a lead author on IPCC Working Group I) and James Renwick (a lead author of AR5 and AR4) which was submitted in support of the plaintiff’s claims. In their testimonies, these experts offered extended explanations of the

Saul Luciano Lliuya v RWE (2017) 20171130 Case No-2-O-28515. Ibid. 58 IPCC AR5 (n 46). 59 Ibid. 60 Agence France-Press, ‘Peruvian Farmer Sues German Energy Company for Contributing to Climate Change’ (The Guardian, 14 November 2017), www​.theguardian​.com/​world/​2017/​nov/​14/​ peruvian​-farmer​-sues​-german​-energy​-giant​-rwe​-climate​-change. 61 Germanwatch, ‘General Ruling of the Civil High Court in Hamm’ (14 November 2017), https://​ germanwatch​.org/​en/​huaraz. 62 Ibid. 63 Sarah Thomson v Minister for Climate Change [2017] NZHC 733, paras 9–18. 64 Ibid, para. 179. 65 Ibid. 56 57

Judicial transnationalization  313 conclusions drawn in AR5 pertaining to increased atmospheric warming, sea-ice melt and sea-level rise.66 Engaging in a transnationalist exercise of cross-citation, the court also drew upon several foreign climate change lawsuits including Massachusetts v EPA, Juliana et al. v USA,67 Friends of the Earth v Governor in Council et al. (Canada),68 ClientEarth v Secretary of State (UK)69 and Urgenda, to conclude that climate change questions are generally likely to be justiciable and that ‘it may be appropriate for domestic courts to play a role in government decision-making about climate change policy’.70 While the certification of IPCC assessments is not primarily contingent on national and subnational adjudication, national courts have nonetheless imbued IPCC assessments with an added layer of legitimacy and transformed them into a global information commons for climate regulation and policy. Critically, beyond their traditional fact-finding role and the legal certification of climate science, courts are transforming facts produced by the IPCC and climate scientists into what Latour calls ‘matters of fact’,71 or justiciable facts. The net result of such adjudication arguably has been the creation of a transnational legal environment that is now far more hospitable towards climate change claims. These cases demonstrate that a shared epistemic foundation in the form of IPCC assessments is a common thread that runs through climate change lawsuits around the world. This judicially fostered development, in turn, contributes to the transnationalization of law and jurisprudence on climate change, as evidenced by the fact that courts continue to issue mandatory orders requiring governments to integrate state of the art climate science (at a minimum, IPCC assessments) into governmental decision-making frameworks to fulfil their obligations under the Paris Agreement. Moreover, the IPCC’s forthcoming publication of its Sixth Assessment Report is likely to have a significant impact on newer generations of climate litigation and adjudication. Universally accredited scientific assessments are also increasingly likely to be relied upon in other areas of environmental litigation, particularly as scientific evidence mounts and becomes consolidated through global databases on issues such as biodiversity loss. The rapid and alarming rate of biodiversity loss has prompted scientists to recently declare this problem to be as detrimental as climate change.72 In a manner analogous to the IPCC, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) publishes global, regional and thematic reports which constitute ‘a knowledge base for global action on biodiversity’ and a potential basis for environmental litigation and adjudication on biodiversity loss.73 While transnational climate litigation has garnered significant international Thomson (n 63) paras 12–18. Kelsey Cascadia Rose Juliana et al. v United States of America et al. (Juliana et al. v USA) (2016) Case No. 6:15-cv-01517-TC, 4. 68 Friends of the Earth v Governor in Council et al., 2009 FCA 297. 69 ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740. 70 Thomson (n 63) paras 101–32, 133. 71 B. Latour, ‘Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern’ (2004) 30 Critical Inquiry 225. 72 J. Watts, ‘Destruction of Nature as Dangerous as Climate Change’ (The Guardian, London, 23 March 2018), www​.theguardian​.com/​environment/​2018/​mar/​23/​destruction​-of​-nature​-as​-dangerous​-as​ -climate​-change​-scientists​-warn. 73 IPBES, ‘Climate Change/Biodiversity Loss: Inseparable Threats to Humanity that Must Be Addressed Together’ (ScienceDaily, 15 November 2018), www​.sciencedaily​.com/​releases/​2018/​11/​ 181115144949​.htm. 66 67

314  Research handbook on transnational environmental law attention, litigation on biodiversity loss is also likely to grow in coming years. The intersection of both issues is inevitable since, as the IPBES puts it, climate change and biodiversity loss are ‘inseparable threats … that must be addressed together’.74 IPBES also encourages transnational judicial coordination to holistically address environmental protection. 3.2

The Emergence of a Transnational Climate Change Jurisprudence

Two recent developments in climate litigation are strongly indicative of judicial transnationalization on environmental protection. These include the ‘rights turn’75 and the proliferation of constitutional public trust claims, which are contributing to the development of a distinctive transnational climate change jurisprudence. Peel and Osofsky argue that, in the wake of landmark cases like Urgenda and Leghari, courts have grown receptive to a rights-based framing of climate change claims.76 Several such claims have been filed around the world including in the Philippines, South Africa, Austria and the US.77 They attribute this development to an emphasis on the linkages between human rights and climate change in recent international climate negotiations and their recognition in the preamble of the Paris Agreement.78 Thus, they plausibly predict that the success experienced by the plaintiffs in Urgenda and Leghari will continue to spur rights-based climate litigation in other countries and that this ‘emerging jurisprudence [marks] an important step forward for rights arguments in the climate change context’.79 Plaintiffs in these cases have commonly alleged violations of their fundamental rights to life, health, liberty, property, dignity of the person and family life as a result of inaction by their governments on climate change.80 Furthermore, rights-based claims form a key component of a growing new wave of private climate litigation against fossil fuel companies known as carbon majors.81 Courts in Germany and the Philippines have provided encouraging signs in pending cases, signifying their willingness to adjudicate climate change claims without summarily dismissing them despite their causal complexity. With respect to the petition filed by Greenpeace at the Philippines Human Rights Commission, which alleges climate change-related rights violations of Filipino citizens, the Commission declared that it had jurisdiction to investigate such violations and ordered the

Ibid. J. Peel and H. Osofsky, ‘A Rights Turn in Climate Change Litigation’ (2018) 7 Transnational Environmental Law 1; A. Richardson Oakes, ‘Judicial Resources and the Public Trust Doctrine: A Powerful Tool of Environmental Protection’ (2018) 7 Transnational Environmental Law 469. 76 Peel and Osofsky (n 75). 77 Ibid, 39. Peel and Osofsky argue that this right-based framing of climate change claims marks a new turn because it is a departure from statutory climate litigation against public bodies which is the dominant form. 78 Ibid. 79 Ibid, 40–41. 80 Urgenda v The Netherlands (n 49) para. 4.35; Ashgar Leghari v Federation of Pakistan (WP No. 25501/2015), Lahore High Court Green Bench, Orders of 4 and 14 September 2015. 81 The term ‘carbon majors’ was coined by Richard Heede to refer to 90 of the world’s largest corporations which are responsible for 30% of all industrial GHG emissions. R. Heede, ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122 Climatic Change 229; G. Ganguly, J. Setzer and V. Heyvaert, ‘If at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38 Oxford Journal of Legal Studies 4. 74 75

Judicial transnationalization  315 establishment of several fact-finding missions.82 Similarly, in the German case of Lliuya v RWE, the Hamm court found in favour of the plaintiff on appeal and accepted his claims based on climate science as preliminarily sufficient to establish causal links between the defendants’ emitting activities and his injuries.83 The fact that such developments transcend differences in legal systems and cultures attests to their transnational character. These cases not only have rights-based claims and argumentation as common denominators, but are also emblematic of an emergent transnational judicial consciousness about climate change as a materially significant ecological and human rights crisis that merits serious judicial engagement. They reveal that national courts are acutely aware of the rising human cost of unabated anthropogenic climate change. Therefore, in keeping with their intrinsic function as a rights-protecting arm of government (albeit predominantly in democratic states), courts are unlikely to maintain a non-interventionist stance in the long term. The idea of recasting judicial power to address climate change was highlighted by Judge Ann Aiken in Juliana et al. v USA, which has recently precipitated a wave of public trust climate litigation globally. In a call to action, Judge Aiken stressed that it was imperative for the American judiciary to develop substantive responses to climate change claims in the following terms: Federal courts have too often been cautious and overly deferential to [the elected branches of government] in the arena of environmental law, and the world has suffered for it … Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.84

The case was filed at the Oregon District Court by the non-governmental organization (NGO) Our Children’s Trust on behalf of 21 youth plaintiffs against the US government and federal agencies, alleging violations of their constitutional rights to life, liberty and property due to their inadequate regulation of climate change.85 While the plaintiffs adopted a rights-based model of argumentation, the lawsuit is also remarkable for their additional invocation of the public trust doctrine under US common law. This led Judge Aiken to characterize it as an ‘action [of a] different order than the typical environmental case’ because ‘it alleges that the defendants’ actions or inactions – whether or not they violate any statutory duty – have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty’.86 Judge Aiken ruled that the defendants were subject to the federal public trust doctrine and the plaintiffs’ claims alleging that the defendants violated their fiduciary duties as trustees to protect the environment and climate system for the benefit of future generations was justiciable in a federal court.87 Notably, her ruling shows that the gravity of the climate change threat represents a potential opportunity for courts to redefine their roles

Philippines Reconstruction Movement and Greenpeace v Carbon Majors Case No. CHR-NI-2016-0001 (2015), https://​climate​-laws​.org/​cclow/​litigation​_cases​?q​=​Philippines​%20Recon struction%20Movement%20and%20Greenpeace%20v%20Carbon%20Majors. 83 Lliuya v RWE (n 56). 84 Kelsey Cascadia Rose Juliana et al. v United States of America et al. (Juliana et al. v USA) (2016) Case No. 6:15-cv-01517-TC, 4 52-54. 85 Ibid. 86 Ibid, 52. 87 Juliana (n 67) 47. 82

316  Research handbook on transnational environmental law and, where necessary, to hold the executive and legislature accountable for their abdication of regulatory responsibilities on climate change. Indeed, there are signs that Juliana is already beginning to have a resonant and formative impact on climate litigation and adjudication elsewhere. Blumm and Guthrie have observed that the public trust doctrine has become ‘internationalized’ and ‘lives a vibrant and significant life abroad’ in countries including India, Pakistan, the Philippines, Kenya, Nigeria, South Africa, Brazil, Ecuador and Canada.88 Many of these countries also possess legal characteristics that may be favourable to climate change claims, such as specialist environmental courts, constitutionalized environmental rights and a substantial corpus of public trust jurisprudence on environmental protection.89 This appears to be at least partly borne out by the filing of analogous, Juliana-inspired lawsuits by youth plaintiffs in Pakistan,90 India91 and Colombia.92 Thus, public trust litigation is rapidly emerging as a prominent and discrete category of climate litigation with an overtly transnational dimension. Furthermore, courts in the Global South are highly likely to look at how their northern counterparts have treated IPCC assessments. Several judges from the Asia-Pacific region and Latin America have already taken notice of IPCC assessments and landmark climate litigation like Urgenda and Juliana at conferences and networking events. This strongly suggests that, at a minimum, they are likely to engage in cross-citation and integrate IPCC assessments into their own adjudication matrix. This incipient body of transnational climate change jurisprudence bears some of the hallmarks of what Lord Justice Carnwath of the UK Supreme Court has called the ‘Common Laws of the Environment’.93 Thus far, claims have been based on constitutionalized fundamental rights and the public trust doctrine, two salient common denominators of transnational climate litigation and adjudication. Both legal mechanisms concurrently exist and operate in different legal systems around the world and are increasingly subject to creative judicial interpretation and application in relation to environmental protection.

4 CONCLUSION Faced with growing litigation on transboundary environmental problems, particularly climate change, national courts have become major proponents and architects of the transnationalization of law and jurisprudence on environmental protection. This chapter has proposed that

M. Blumm and R. Guthrie, ‘Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision’ (2012) 45 UC Davis Law Review 3, 741–808. 89 Richardson Oakes (n 75) 13–14. 90 Rabab Ali v Federation of Pakistan; Our Children’s Trust, ‘Global Legal Actions: Pakistan’ (2019), www​.ourchildrenstrust​.org/​pakistan. 91 Pandey v Union of India; Sabin Center for Climate Change Law: Columbia University, ‘Climate Case Chart’ (2018), http://​climatecasechart​.com/​non​-us​-case/​pandey​-v​-india/​. 92 Future Generation v Ministry of the Environment and Others; Dejusticia, ‘In Historic Ruling, Colombian Court Protects Youth Suing National Government for Failing to Curb Deforestation’ (2018), www​.dejusticia​.org/​en/​en​-fallo​-historico​-corte​-suprema​-concede​-tutela​-de​-cambio​-climatico​-y​ -generaciones​-futuras/​. 93 Lord Carnwath (n 33) 184. 88

Judicial transnationalization  317 two recent developments make up the phenomenon of judicial transnationalization in the field of environmental law. First, networked interactions and initiatives beyond the courtroom, as embodied by the GJIE, evidence the maturation of a transnational judicial consciousness about the importance of coordination and knowledge-sharing on transboundary environmental problems. It is important to pay close attention to these interactions as they result in the production of some soft law frameworks on environmental protection. Furthermore, these judicially generated soft law frameworks can be considered constitutive elements of an incipient, albeit distinctive transnational environmental jurisprudence or ‘common law of the environment’. This impetus towards coordinated judicial action is aptly exemplified by initiatives on water justice and the recent adoption of the Brasilia Declaration. Secondly, this chapter has argued that some of the strongest evidence for judicial transnationalization can be found in the arena of climate litigation and adjudication. National courts exhibit an increased willingness to treat climate change issues as justiciable legal questions rather than summarily dismiss them. This judicial openness to climate change lawsuits is a relatively recent shift and is characterized by the certification of IPCC assessments by superior courts and higher levels of judicial responsiveness and receptiveness to rights-based and public trust claims. Some American federal courts have shown leadership in this area, with landmark climate change cases like Massachusetts and Juliana serving to inspire similar pro-regulatory climate litigation around the world. The certification of IPCC assessments by the US Supreme Court in Massachusetts and, more recently, The Hague District Court’s decision in Urgenda has since been emulated by courts around the world, with the effect that IPCC assessments constitute a judicially accredited evidentiary pillar in most climate litigation. Such climate change jurisprudence and transnational judicial conversations have also encouraged the standardization of evidence-based policymaking as best practice in domestic climate change governance. Ultimately, climate litigation and adjudication around the world have led to a transnational judicial consensus on IPCC assessments as a minimum baseline for sound climate change regulation. On one reading, judicial transnationalization can be regarded as a welcome and positive development because it provides an alternative pathway for addressing environmental problems bedevilled by profound political deadlock and regulatory stasis. Alternatively, such a development may be alarming since a transnational concentration of epistemic–regulatory power in judicial institutions appears to be an anti-democratic move with a latent danger of technocracy. However, the relatively unfettered growth of global administrative or executive power in recent decades is equally fraught with danger. The augmentation of judicial power on a transnational scale can plausibly serve as a counterweight to global executive power. Legal scholars have noted that such a development entails a transplantation or scaling-up of the separation of powers to the transnational sphere and therefore constitutes an important check on global executive power.94 While such debates are not the focus of this chapter, further research in this direction could help to illuminate the global governance implications of the transnational growth of judicial power with respect to environmental and human rights protection and theorize the relationship between national courts, global administrative regimes and other transnational regulatory networks.

Flaherty (n 1) 479.

94

19. Transnational litigation: what can we learn from Chevron–Ecuador? Robert V. Percival

1 INTRODUCTION For more than a quarter-century, residents of the Oriente region of north-eastern Ecuador have been seeking compensation for, and remediation of, massive oil pollution that began when a United States (US) company developed oilfields there. This chapter considers what lessons can be learned from the sad saga of the Chevron–Ecuador litigation. At the outset it is useful to preview the basic facts of the case. The US oil company Texaco, later acquired by Chevron, discovered oil in Ecuador in 1967 and began shipping it to the US in 1972. The company placed its drilling waste in unlined earthen pits and discharged its contaminated produced water into rivers, causing pollution that is still evident today. Residents of Ecuador who alleged that they were harmed by the pollution filed suit against Texaco in federal court in New York in 1993, the year after Texaco ceased its operations in Ecuador. Texaco argued that the case should be dismissed because the US was an inconvenient forum to hear the lawsuit since nearly all of the evidence was in Ecuador and the courts in Ecuador were fair. After nine years of legal proceedings and the acquisition of Texaco by Chevron, the case was dismissed by the US court in 2002, on the condition that the oil company submit to the jurisdiction of Ecuador’s judiciary and abide by its judgment. In 2003 the plaintiffs refiled their case in Ecuador. Chevron argued that it already had cleaned up pollution for which it was responsible, pursuant to an agreement approved by the government of Ecuador. After a regime less friendly to the oil company came to power in Ecuador in 2007, Chevron launched a ‘scorched earth’ strategy seeking to discredit the plaintiffs’ lawyers and Ecuador’s judiciary. This culminated in a lawsuit being filed in 2011 by Chevron against the plaintiffs and their lawyers in New York federal court under the Racketeer Influenced and Corrupt Organizations (RICO) Act, alleging that the proceedings in Ecuador were part of a corrupt conspiracy to extort money from the oil company. Thirteen days later the court in Ecuador issued a US$8.6 billion judgment against Chevron, which the company vowed never to pay. After a trial in which Chevron’s lawyers cross-examined the Ecuadorian judge who issued the judgment against it, the US judge hearing the RICO case ruled in 2014 that the judgment of the court in Ecuador had been procured by fraud. He barred any attempt to enforce the Ecuadorian judgment in the US and he ordered the plaintiffs’ lawyers to turn over to Chevron any money they may receive from enforcement of the judgment in other countries. This decision was affirmed on appeal in 2016. In 2018 Chevron also obtained a judgment from the Permanent Court of Arbitration (PCA) in The Hague finding that Ecuador had breached its obligations under its bilateral investment treaty with the US by allowing its courts to issue a judgment against Chevron that had been 318

Transnational litigation: what can we learn from Chevron–Ecuador?  319 procured by fraud. The arbitration panel ordered the government of Ecuador to take all measures necessary to suspend recognition and enforcement of the judgment anywhere in the world. The plaintiffs have sought to collect the Ecuadorian judgment in the courts of Argentina, Brazil and Canada. However, courts in all three countries have held that Chevron’s subsidiaries within their jurisdiction are not legally responsible for acts of the parent corporation. Thus, after more than a quarter-century of litigation before courts in several countries, the victims of oil pollution in Ecuador have received neither compensation nor remediation of the contamination. The Chevron–Ecuador litigation illustrates how difficult it is to hold large, multinational corporations accountable for environmental harm they cause in developing countries. The companies can devote immense resources to contesting litigation and to rendering judgments procured against them impossible to collect. Transnational environmental accountability remains an elusive goal in the courts of the world, despite its importance in the court of global public opinion.

2

HISTORY OF THE CHEVRON–ECUADOR LITIGATION

2.1

Texaco’s Oil Development Operations in Ecuador

In 1964 Texaco began oil exploration in the Oriente region of eastern Ecuador, pursuant to a concession agreement with the government of Ecuador. On 29 March 1967, Texaco discovered oil 20 miles south of the Colombian border near Lago Agrio, the base camp Texaco had established for its exploration efforts. The discovery of oil created a sensation in Ecuador and the country’s president soon visited Texaco’s production site. By the end of 1967 Texaco had drilled four wells that produced 8,000 barrels of oil per day.1 Texaco paid US$150 million to construct a pipeline from Lago Agrio to Ecuador’s Pacific coast. It also spent US$55 million to build roads and bridges to facilitate access to the drilling sites.2 The 312-mile Trans-Ecuadorian Pipeline began operating in 1972, enabling crude oil to reach the Pacific coast where it could be shipped by tanker to California for refining. During the time when Texaco operated the pipeline it spilled more than 19 million gallons of crude oil into the environment, nearly twice the amount released in the 1989 Exxon Valdez oil spill in Alaska.3 Ecuador became a member of the Organization of the Petroleum Exporting Countries (OPEC) just as crude oil prices skyrocketed in 1973 in the wake of the Arab oil embargo. Texaco’s oil production practices in the Oriente caused immense pollution. The company disposed of its drilling waste in hundreds of unlined earthen pits and discharged billions of gallons of polluted wastewater into rivers and streams.4 Texaco’s contract with the government of Ecuador required the company to take ‘measures for the protection of the flora, fauna, and other natural resources’ and to ‘avoid the contamination of waters, atmosphere, and land’, but

1 P. Barrett, Law of the Jungle: The $19 Billion Legal Battle over Oil in the Rainforest and the Lawyer Who’d Stop at Nothing to Win (Broadway Books 2014) 16–17. 2 Ibid, 24. 3 J. Kimerling, ‘Lessons from the Chevron Ecuador Litigation: The Proposed Intervenors Perspective’ (2013) 1 Stanford Journal of Complex Litigation 241, 243. 4 Ibid, 26–7.

320  Research handbook on transnational environmental law no government agencies were designated to enforce these provisions.5 In 1976 Texaco rejected a government request to drain and line its waste pits. Although this was required for oil operations in the US at the time, Texaco management rejected it because it would cost US$4 million. In 1972 R.C. Shields, supervisor of Texaco’s Latin American operations, directed company personnel in Ecuador not to keep records of pollution incidents and to destroy any previous reports concerning them.6 A military junta which took over the government of Ecuador in 1972 forced Texaco to transfer a 25% share of its operations to PetroEcuador, a newly created state oil company.7 In the subsequent two decades, Texaco is estimated to have drilled 400 oil wells in Ecuador, which produced 220,000 barrels of oil per day. The government of Ecuador increased taxes on oil income and borrowed heavily, but it did not invest the revenue wisely. After an earthquake in 1987 temporarily halted oil exports, the government defaulted on its foreign debts. In 1989 PetroEcuador took over operation of the Trans-Ecuadorian Pipeline and in July 1990 it took over all oil drilling operations in the country. In 1992 Texaco ceased its operations in Ecuador and relinquished the remaining share of its concession to PetroEcuador. Texaco offered to spend US$3 million to clean up pollution from its drilling operations and oil waste pits, but the government of Ecuador rejected this offer as inadequate.8 2.2

The Initial Lawsuit by the Ecuadorian Plaintiffs in New York Federal Court

On 3 November 1993, Maria Aguinda and 75 other residents of the Oriente region of Ecuador sued Texaco (the Aguinda litigation)9 in federal district court in New York. The plaintiffs filed the lawsuit in New York because Texaco’s headquarters at the time were located in White Plains, New York. Although the case was never certified as a class action, the lawsuit was brought on behalf of a class of 30,000 residents of the Oriente who plaintiffs alleged had been harmed by oil pollution caused by Texaco. The suit was filed pursuant to the Alien Tort Statute (ATS), enacted by the first US Congress in 1789, which authorizes civil suits in federal court by aliens for torts ‘committed in violation of the law of nations’.10 Citing the doctrine of forum non conveniens, Texaco argued that the case should be dismissed because the US was not a convenient venue to hear the case since nearly all of the evidence was in Ecuador. Texaco argued that Ecuador’s courts were fair and capable of handling the case. It also argued that the case should be dismissed because the plaintiffs had not named as defendants the government of Ecuador or PetroEcuador, the state-owned oil company that it blamed for much of the pollution. At the behest of Texaco, the government of Ecuador sent the US State Department a letter Texaco had drafted, which warned that a ruling against Texaco could discourage US companies from investing in Ecuador.11 The government of Ecuador also filed an amicus brief supporting Texaco’s efforts to have the lawsuits dismissed.

7 8 9

Ibid, 27–8. Ibid, 29–30. Ibid, 25. Ibid, 55. Aguinda v Texaco, Inc., 142 F. Supp. 2d 534 (2001). 10 The Alien Tort Statute 28 U.S.C. 1350 (US). 11 Ibid, 53. 5 6

Transnational litigation: what can we learn from Chevron–Ecuador?  321 In April 1994, federal district judge Vincent Broderick stated in a preliminary ruling that the case would not be dismissed on forum non conveniens grounds unless Texaco agreed to ‘a binding acceptance of personal jurisdiction over it in Ecuadorian courts’ or the filing of a bond adequate ‘to cover any liability imposed by the Ecuadorian courts’. He also stated that the ‘dispute is not necessarily best resolved by further litigation’ and suggested that the parties meet with a neutral third party to develop a remediation plan.12 Neither party followed up on this suggestion. Between May and August 1994, four municipalities in the Oriente brought lawsuits in Ecuador against TexPet, Texaco’s Ecuadorian subsidiary, seeking compensation for environmental harm and injury to their communities. These lawsuits asked the courts to order TexPet to remediate oil contamination in areas where it had operated. The various lawsuits helped convince Texaco to enter into settlement negotiations with the government of Ecuador, but not with the Aguinda plaintiffs. In May 1995 an agreement was reached between the government of Ecuador, PetroEcuador and TexPet concerning remediation of the oil contamination. The agreement specified that TexPet would investigate and clean up 37.5% of the waste pits. TexPet also agreed that it would negotiate settlements of the lawsuits filed against it in Ecuador by the municipalities. Unfortunately, the clean-up that TexPet agreed to perform was rather cursory, perhaps reflecting in part the lack of priority the government of Ecuador placed on protecting the environment. TexPet promised only to reduce oil contamination of soil to a level of 5,000 total petroleum hydrocarbons (TPH), a level 50 times more lax than clean-up standards then in effect in the US.13 The agreement specified that if TexPet successfully completed the remediation it would forever release ‘all the Government’s and Petroecuador’s claims against the Releasees for Environmental Impact arising from the Operations of the Consortium’. It was understood that PetroEcuador would be responsible for remediating the other sites, but apparently it never did so. In December 1994 a second class action (the Jota litigation) was filed against Texaco in the New York court hearing the Aguinda case on behalf of 25,000 residents of Peru, who alleged that they were harmed by pollution of rivers and streams that flowed into Peru from Ecuador. The Jota litigation also was assigned to Judge Broderick. Before he could issue a ruling, Judge Broderick was stricken with cancer and died on 3 March 1995. The cases then were reassigned to Judge Jed Rakoff. Following discovery, on 12 November 1996, Judge Rakoff dismissed the Aguinda case on grounds of international comity, forum non conveniens, and failure to join PetroEcuador and the government of Ecuador as indispensable parties.14 He noted that given that ‘the parties dispute whether the courts of Ecuador can provide them with an adequate remedy, it is patently clear that the courts of the United States cannot’.15 After a change in government, the new government of Ecuador and PetroEcuador moved to intervene in the case and, switching sides, to support the plaintiffs. Judge Rakoff denied the motion as untimely. He also dismissed the Jota class action.16 Both the Aguinda and Jota plaintiffs appealed the dismissals to the US Court of Appeals for the Second Circuit.

14 15 16 12 13

Aguinda v Texaco, Inc., WL 142006 (SDNY 11 Apr. 1994). Ibid, 58. Aguinda (n 9). Ibid, 628. 175 F.R.D. 20 (1997).

322  Research handbook on transnational environmental law Between May and September 1996 TexPet agreed to pay US$5 million to settle the lawsuits brought by the four municipalities in the Oriente. These settlements were approved by the courts of Ecuador. TexPet also created a US$1 million fund to buy peace with an indigenous group known as FCUNAE.17 On 30 September 1998, officials from yet another new government of Ecuador signed a final release certifying that TexPet had performed the clean-up it had promised. TexPet reported that it had investigated 250 pits and seven spills at 133 well sites pursuant to the remedial action plan. In 168 of these locations TexPet took remedial action; in the other 89 it determined that remedial action was not required.18 Although TexPet claimed it had spent US$40 million on remediation, an independent expert who reviewed what had been done reported ‘they really did not do much’.19 On 5 October 1998, the US Court of Appeals for the Second Circuit reversed Judge Rakoff’s dismissal of the Aguinda and Jota cases. The court noted that because Chevron had pulled out of Ecuador, it would not be subject to suit there. Thus, it ruled that it was erroneous for Judge Rakoff to dismiss the cases ‘at least absent a commitment by Texaco to submit to the jurisdiction of the Ecuadorian courts’.20 In 1999, the Aguinda plaintiffs offered to settle their case against Texaco for US$140 million. Texaco rejected the proposal and did not make any counteroffer.21 On remand from the Second Circuit, Judge Rakoff in January 2000 asked for more briefing on the quality of the judiciary in Ecuador, noting that there had been an abortive military coup attempt the week before and that the State Department did not believe the Ecuadorian judiciary was impartial.22 Texaco presented an expert witness who testified: ‘Despite isolated problems that may have occurred in individual criminal proceedings, Ecuador’s judicial system is neither corrupt nor unfair. Such isolated problems are not characteristic of Ecuador’s judicial system, as a whole.’23 After undertaking further discovery and then completing briefing, the plaintiffs’ attorneys learned that Judge Rakoff had attended an environmental seminar sponsored by a libertarian group at which a former chairman of Texaco had spoken. They then asked Judge Rakoff to recuse himself, but he refused to do so, finding that the seminar had not affected his impartiality.24 Judge Rakoff’s decision not to recuse was affirmed on appeal by the Second Circuit.25 On 15 October 2000, Chevron announced that it was acquiring Texaco for US$45 billion, creating the second largest oil company in the US and the fourth-largest publicly traded oil FCUNAE is the acronym for the Federación de Comunas Unión de Nativos de la Amazonía Ecuatoriana (Federation of Native Communes of the Ecuadorian Amazon). Ibid, 56–7. 18 In the Matter of an Arbitration before a Tribunal Constituted in Accordance with the Treaty between the United States of America and the Republic of Ecuador Concerning the Encouragement and Reciprocal Protection of Investment, Signed 27 August 1993 and the UNCITRAL Arbitration Rules between Chevron Corporation, Texaco Petroleum Company and the Republic of Ecuador, Second Partial Award on Track II, August 30, 2018, at IV-50-51. 19 Barrett (n 1) 58. 20 Jota v Texaco, Inc., 157 F.3d 153, 159 (2d Cir. 1998). 21 Ibid, 71. 22 2000 WL 122143 (S.D.N.Y. 2000). 23 Arbitration Tribunal, Chevron Corp. v Republic of Ecuador, Second Partial Award on Track II, 30 August 2018, at IV-26. 24 139 F. Supp. 2d 438 (S.D.N.Y. 2000). 25 Aguinda v Texaco, Inc., 241 F.3d 194 (2d Cir. 2001). 17

Transnational litigation: what can we learn from Chevron–Ecuador?  323 company in the world. After approval by shareholders, the merger closed on 9 October 2001. The new company was initially known as ChevronTexaco, but in 2005 it dropped Texaco from its name and returned to being known as Chevron. On 30 May 2001, Judge Rakoff again dismissed the suits on forum non conveniens grounds after Texaco agreed to consent to be sued in both Ecuador and Peru.26 In his decision, Judge Rakoff found that Ecuador was an adequate alternate forum, as Texaco had argued. He noted that several municipalities already had obtained settlements in lawsuits against TexPet, which had been approved by the courts in Ecuador, as discussed above. Judge Rakoff observed that ‘While no one claims the Ecuadorian judiciary is wholly immune to corruption, inefficiency, or outside pressure, the present Government of Ecuador, headed by a former law school dean, has taken vigorous steps to further the independence and impartiality of the judiciary.’27 Noting the high level of public scrutiny the case was receiving in Ecuador, Judge Rakoff concluded that ‘even the possibility that corruption or undue influence might be brought to bear if this litigation were pursued in Ecuador seems exceedingly remote’.28 Although it did not specifically appear in Judge Rakoff’s decision, in its briefs Texaco had also promised to satisfy any Ecuadorian judgments in plaintiffs’ favour, reserving only its rights to contest such judgments in the limited circumstances permitted by New York’s Recognition of Foreign Country Money Judgments Act. This Act provides that a New York court has the discretion not to recognize a foreign judgment if a defendant shows that ‘the judgment was obtained by fraud’.29 Judge Rakoff’s dismissal of the cases was appealed to the Second Circuit and unanimously affirmed by a three-judge panel that included future US Supreme Court Justice Sonia Sotomayor. In a decision written by Judge Pierre Leval, which was issued on 16 August 2002, the court made one modification to Judge Rakoff’s decision. It conditioned dismissal on Texaco waiving any statute of limitation defences in Ecuador.30 2.3

Lawsuit Refiled in Ecuador in 2003, Resulting in $8.6 Billion Judgment against Chevron in 2011

On 7 May 2003, the Aguinda plaintiffs refiled their litigation in Lago Agrio, Ecuador. Although Ecuador’s justice system had initially not permitted class actions, in 1999 Ecuador had enacted the Environmental Management Act, which authorizes private actions for remediation of environmental harm. Citing this law, the plaintiffs asked the Ecuadorian court to require Chevron to pay US$6 billion to clean up oil contamination in the Oriente. Chevron argued that it had already cleaned up any pollution for which it was responsible and that any remaining pollution was the responsibility of PetroEcuador. Chevron argued that everything it did in Ecuador was legal. It claimed that it spent US$40 million on environmental clean-up and was released from further liability by the government of Ecuador. The plaintiffs responded that any settlement with the government of Ecuador did not absolve Chevron of responsibility for harm the oil company caused to the individual plaintiffs.

Aguinda (n 9). Ibid, 545. 28 Ibid. 29 § 5304(b)(3), N.Y. Civil Practice Law & Rules. 30 Aguinda v Texaco, Inc., 303 F.3d 470 (2d Cir. 2002). 26 27

324  Research handbook on transnational environmental law Lawyers for the plaintiffs and Chevron engaged in bitter disputes over court-ordered site inspections. As early as October 2005, Chevron took out full-page advertisements in newspapers in Ecuador denouncing the litigation as fraudulent. Chevron engaged in a massive fishing expedition to obtain information even from people who had only casual contact with the plaintiffs or their lawyers.31 Using a rarely invoked provision of US law permitting discovery in the US to assist litigants ‘in a proceeding in a foreign or international tribunal’,32 Chevron filed 23 actions in federal courts throughout the United States. These ‘Section 1782 actions’ sought information from people who had been in contact with the Ecuadorian plaintiffs’ lawyers, including non-profits who had filed amicus briefs in support of the plaintiffs and even people who had just blogged about the litigation.33 Chevron’s complaints included assertions that privileged information should be released because the plaintiffs’ lawyers were engaged in fraudulent conduct. Some courts accepted and others rejected this assertion, which seems ironic in light of the company’s initial insistence that the case be dismissed from the US courts because of the fairness of the judiciary in Ecuador.34 This enabled Chevron to obtain ‘all manner of information, including the plaintiffs’ lawyers’ and experts’ internal files’, as a Chevron lawyer subsequently bragged.35 Steven Donziger, a flamboyant US lawyer for the plaintiffs, who became a lightning rod for Chevron, sought to build public support for the plaintiffs by publicizing the oil pollution in the Oriente. He sought out filmmaker Joseph Berlinger to make a documentary film about the pollution. Berlinger visited Ecuador, where he began filming in November 2005. Donziger arranged for celebrities, including the singer Sting and the actor Darryl Hannah, to visit sites of the oil contamination while Berlinger was filming. When a preliminary version of his documentary film, called Crude, was shown at the Sundance Film Festival in January 2009, it included intemperate remarks by Donziger that later were edited out of the film. Chevron’s lawyers learned about this and sought a court order requiring the filmmaker to turn over to them all 600 hours of his raw footage. Berlinger claimed this violated an investigative journal In re Application of Chevron Corp., 762 F. Supp. 2d 242, 248 (D. Mass. 2010). 28 U.S.C. 1782. 33 See, e.g., K.J. Heller, ‘My Encounter with a Chevron Subpoena – and the ACLU’s Assistance’ (Opinio Juris, 28 September 2012), http://​opiniojuris​.org/​2012/​09/​28/​my​-encounter​-with​-a​-chevron​ -subpoena​-and​-the​-aclus​-assistance/​; see also In re Chevron Corp., 753 F. Supp. 2d 536, 538, 541 (D.M.D. 2010) (granting discovery request to compel documents from experts who suggested US$113 billion in damages was a more appropriate amount than the previous amount of US$27 billion). The ‘Chevron–Ecuador line of [§ 1782] cases’ has been described as ‘extremely troubling from a jurisprudential perspective’ in S.I. Strong, ‘Discovery under 28 U.S.C. 1782: Distinguishing International Commercial Arbitration and International Investment Arbitration’ (2013) 1 Stanford Journal of Complex Litigation 295, 315. 34 Compare Chevron Corp. v Camp, Nos. 1:10mc27, 1:10mc28, 2010 WL 3418394, 6, (W.D.N.C. Aug. 28, 2010) (finding that privileged information could be compelled for discovery), with Chevron Corp., 762 F. Supp. 2d at 254 (finding that Chevron had not met the ‘heavy burden in establishing that narrow exception’), and Chevron Corp. v Stratus Consulting, Inc., No. 10-cv- 00047-MSK-MEH, 2010 WL 3923092, 11 (D. Colo. 1 Oct. 2010) (declining to decide the crime-fraud allegation and leaving it ‘to the discretion and jurisdiction of the Ecuadorian court’), and In re Veiga, 746 F. Supp. 2d 27, 46 (D.D.C. 2010) (declining to decide on the crime-fraud exception), appeal dismissed, No. 10-7145, 2010 WL 5140467 (D.C. Cir. 17 Dec. 2010), and appeal dismissed, No. 10-7144, 2011 WL 1765213 (D.C. Cir. 18 Apr. 2011). 35 T. Boutrous, Jr, ‘Ten Lessons from the Chevron Litigation: The Defense Perspective’ (2013) Stanford Journal of Complex Litigation 219, 234. 31 32

Transnational litigation: what can we learn from Chevron–Ecuador?  325 ism privilege protected by the Constitution’s guarantee of freedom of the press. But he lost on appeal because the court found that any privilege was overcome because ‘the making of the film was solicited by the plaintiffs in the Lago Agrio litigation for the purpose of telling their story, and that changes to the film were made at their instance’.36 When the out-takes were turned over to Chevron on 15 July 2010, they included segments where Donziger denigrated the honesty of the Ecuadorian court and vowed to win the case at all costs. Claiming fraud, Chevron lawyers obtained an order requiring Donziger to turn over all his emails, including normally privileged communications. Based on this material, Chevron claimed that Donziger had orchestrated the Ecuadorian court’s selection of a supposedly independent expert and secretly paid consultants to ghostwrite the expert’s report recommending that the court impose a US$16 billion judgment against Chevron. In August 2009, Chevron sent the first of a series of letters to Ecuador’s Prosecutor General, seeking criminal investigations of Donziger and other representatives of the Lago Agrio plaintiffs. By July 2009, Chevron officials were convinced that the company was likely to lose the lawsuit in Ecuador and face an enormous judgment. Company officials vowed that Chevron would not pay any judgment and that it would fight in the courts of both Ecuador and the US for decades if necessary. While some shareholders urged the company to settle, Chevron spokesperson Don Campbell told the Wall Street Journal that ‘We’re not going to be bullied into a settlement’ because the company ‘has done nothing wrong’.37 Chevron aggressively sought to obtain any information it might use to discredit the plaintiffs’ attorneys. The company later admitted that it had paid US$15 million to private investigators to conduct surveillance on Steven Donziger and other attorneys for the Lago Agrio plaintiffs. The company reportedly tried to hire a freelance journalist to spy on the plaintiffs’ legal team, but she backed out at the last minute.38 In September 2009, Judge Juan Núñez, the Ecuadorian judge presiding over the trial, recused himself from the case after Chevron released a video that the company claimed showed that the judge was committed to ruling against the oil company. In the heavily edited video, which was posted on Chevron’s website, the judge reportedly refuses to reveal the verdict several times but then responds ‘yes, sir’ to a question Chevron claims was an inquiry as to whether Chevron would lose the lawsuit.39 There was also reportedly a discussion of how remediation funds Chevron would be ordered to pay would be spent and a suggestion that some could be used to pay off government officials. The video was covertly filmed by an Ecuadorian former contractor for Chevron who the oil company claims was acting entirely independently. While denying that he was corrupt, Judge Núñez stepped down at the request of Washington Pezantes, the Attorney General of Ecuador. He was replaced by Judge Nicolas Augusto Zambrano, further delaying the proceedings. On 23 September 2009, Chevron announced that it had filed an international arbitration claim against the government of Ecuador in the Permanent Court of Arbitration in The Hague. This institution is a vehicle for private investor–state dispute resolution through arbitration.

Chevron Corp. v Berlinger, 629 F.3d 297, 300 (2d Cir. 2011) (emphasis in the original). B. Casselman, ‘Chevron Expects to Fight Ecuador Lawsuit in U.S. as Largest Environmental Judgment on Record Looms, the Oil Company Reassures Shareholders It Won’t Pay’ (Wall Street Journal, 21 July 2009) B3. 38 Barrett (n 1) 309. 39 D. Baker, ‘Judge Recuses Himself in Suit against Chevron’ (SFGate, 5 September 2009), www​ .sfgate​.com/​business/​article/​Judge​-recuses​-himself​-in​-suit​-against​-Chevron​-3219606​.php. 36 37

326  Research handbook on transnational environmental law Chevron based its claim on what it called the government of Ecuador’s ‘exploitation’ of the lawsuit.40 Chevron asked an arbitration panel (the tribunal) to enforce its settlement agreement with PetroEcuador and it charged the government of Ecuador with violating a bilateral US– Ecuador investment treaty. The treaty, agreed to by the two countries in 1993, took effect on 11 May 1997. While Chevron’s move was widely expected, most observers thought it would not occur until after the litigation against the company was concluded in Ecuador’s courts. But Chevron claimed that it had no choice because ‘Ecuador's judicial system is incapable of functioning independently of political influence’, an ironic claim in light of Texaco’s prior insistence that the courts in Ecuador provided a fair forum. Ecuador’s Attorney General decried Chevron’s effort to impugn the integrity of the country’s judiciary. He noted that the plaintiffs in the lawsuit in Ecuador were not parties to the arbitration proceeding Chevron had initiated in The Hague. The government of Ecuador brought suit in the Southern District of New York to join the arbitration. However, the Southern District recognized the ‘arbitrability’ of Chevron’s claim and denied the Republic of Ecuador’s request for an injunction and summary judgment against Chevron’s arbitration claim. The Second Circuit affirmed this judgment on appeal in 2011, noting that any conflict between the arbitration and a future judgment by a court in Ecuador was purely hypothetical at this point.41 On 21 May 2010, Chevron asked the court in Lago Agrio to dismiss a court-appointed expert and reject the expert’s assessment that oil pollution in the Oriente region had caused US$27 billion in damage. Chevron claimed that the appointee, Richard Cabrera, worked directly with the plaintiffs and their consultants, who provided him with materials. Plaintiffs argued that Cabrera sought materials from both parties, but Chevron did not participate. Chevron claimed that Cabrera’s estimates exceeded the scope of his mandate and contained inconsistencies. The evidentiary phase of the case in Ecuador ended in December 2010, and final arguments were submitted to the court at the end of January 2011. Believing that Chevron was about to lose the case in Ecuador, on 1 February 2011 the company’s lawyers took an audacious step. They filed suit against 56 of the plaintiffs, their lawyers and their experts in federal district court in New York, the very court in which the plaintiffs had first sought relief. Chevron’s lawsuit was filed under the Racketeer Influenced and Corrupt Organizations (RICO) Act, a federal law designed to combat organized crime. The RICO suit alleged that the lawsuit in Ecuador was part of a corrupt conspiracy by the plaintiffs and their lawyers to extort money from Chevron. Chevron’s lawsuit asked for US$60 billion in damages, but it later dropped that demand in order to prevent the case from being heard before a jury. The case was assigned to Judge Lewis Kaplan, a judge who could not contain his contempt for Steven Donziger, a lawyer for the Ecuador plaintiffs. Less than two weeks later, on 14 February 2011, the court in Lago Agrio, Ecuador issued a US$8.646 billion judgment against Chevron.42 Its 188-page, single-spaced opinion contained 40 Chevron Corp., ‘Chevron Files International Arbitration against the Government of Ecuador over Violations of the United States–Ecuador Bilateral Investment Treaty’ (Press Release) (23 September 2009), www​.chevron​.com/​news/​press/​release/​?id​=​2009​-09​-23; A. Gonzalez and B. Casselman, ‘Chevron Plaintiffs Ask U.S. Court for Action’ (Wall Street Journal 15 January 2010) B3, http://​online​.wsj​.com/​ article/​SB10001424​05274870436350​4575003153443151606​.html. 41 Republic of Ecuador v Chevron Corp., 638 F.3d 384 (2d Cir. 2011). 42 Maria Aguinda y Otros v Chevron Corp., No. 002-2003 (Provincial Court of Justice of Sucumbios 2011).

Transnational litigation: what can we learn from Chevron–Ecuador?  327 extensive findings of fact and conclusions of law holding that Chevron was responsible for widespread environmental contamination in the Oriente. Mindful of Chevron’s claim of fraud, the court stated that in reaching its judgment it did not consider the challenged expert’s report. The court required Chevron to pay US$5.4 billion for remediation of contaminated soil, US$1.4 billion to implement a ‘health improvement plan’, US$800 million to treat cancers caused by the contamination, US$600 million to clean up contaminated groundwater, US$200 million ‘to recover the native flora, fauna, and the aquatic life of the zone’, US$150 million to construct a potable water system, and US$100 million to redress ‘cultural harm’. The judgment also included a bizarre provision, later struck down by the National Court of Justice of Ecuador, that the judgment would double to more than US$17.3 billion if Chevron did not apologize to the people of Ecuador within ten days. On 16 February 2011, the Wall Street Journal’s editors denounced the Lago Agrio court’s judgment in an editorial entitled ‘Shakedown in Ecuador’.43 Without mentioning that the case had been litigated in Ecuador only because of the oil company’s insistence that the US was an inconvenient forum, the editorial claimed that ‘The Ecuador suit is a form of global forum shopping, with U.S. trial lawyers and NGOs (non-governmental organizations) trying to hold American companies hostage in the world’s least accountable and transparent legal systems.’ The Journal warned that ‘If the plaintiffs prevail, the result could be a global free-for-all against U.S. multinationals in foreign jurisdictions.’ 2.4

Chevron’s RICO Suit

Three days after filing its RICO lawsuit and ten days before the court in Ecuador issued its judgment, on 4 February 2011 Chevron moved for a temporary restraining order and a preliminary injunction to bar any efforts to enforce any judgment from the court in Ecuador. Chevron cited New York’s Uniform Foreign Country Money-Judgment Recognition Act, which allows enforcement of foreign judgments in New York Courts. On 11 March 2011, just three weeks after the court in Ecuador issued its judgment, Judge Kaplan issued a preliminary injunction purporting to bar enforcement of the Lago Agrio judgment in any court in the world. Although he did not even hold an evidentiary hearing, Judge Kaplan issued a 70-page opinion with its own table of contents finding that Chevron was likely to succeed on its claim that Ecuador did not provide impartial tribunals and due process.44 He ruled that there was ‘ample evidence of fraud in the Ecuadorean proceedings’ and ‘abundant evidence’ that ‘Ecuador has not provided impartial tribunals or procedures compatible with due process of law’. Kaplan cited a report from a legal expert commissioned by Chevron that the judiciary in Ecuador is subject to political pressure and that the country ranks among the lowest nations in assessment of the strength of its rule of law. Luis Gallegos, Ecuador’s ambassador to the US, defended his country’s judiciary and expressed ‘consternation that a US court has elected to pass judgment on Ecuador’s courts’.45 Wall Street Journal Opinions, ‘Shakedown in Ecuador: The Comedy of Legal Errors against Chevron’ (Wall Street Journal, 16 February 2011), www​ .wsj​ .com/​ articles/​ SB100014240​ 52748703652104​576121941625806096. 44 Chevron Corp. v Donziger, 768 F. Supp. 2d 581 (SDNY 2011). 45 Lawrence Hurley, ‘Ecuador’s US Ambassador Speaks Out on Chevron Case’ (The New York Times, 10 March 2011), https://​archive​.nytimes​.com/​www​.nytimes​.com/​gwire/​2011/​03/​10/​10greenwire​ -ecuadors​-us​-ambassador​-speaks​-out​-on​-chevron​-c​-86771​.html. 43

328  Research handbook on transnational environmental law Judge Kaplan summarily dismissed the notion that Texaco’s prior commitment to accept the judgment of Ecuador’s courts meant that Texaco was estopped from now challenging the judgment. First, he concluded that even though Chevron had acquired Texaco, ‘there is no evidence in the record that, if accepted, could justify disregarding Texaco’s separate corporate existence’.46 Secondly, he noted that Texaco’s prior representations about the fairness of the Ecuadorian judiciary were made between 1998 and 2001 and ‘there is no inconsistency between saying that Ecuador was an adequate forum in 1998–2001 and maintaining that it is not so today and has not been during the entire period since the Lago Agrio litigation began in 2003’.47 Donziger and the Ecuadorian plaintiffs appealed the preliminary injunction to the Second Circuit. Oral argument was held on 16 September 2011. Three days later the court announced that it was vacating the injunction and staying proceedings in Judge Kaplan’s court pending the release of its opinion. The court found that the New York Recognition Act ‘nowhere authorizes a court to declare a foreign judgment unenforceable on the preemptive suit of a putative judgment debtor’. It concluded that ‘Chevron will have its opportunity to challenge the judgment’s enforcement under the Act at such time, if any, as judgment-creditors seek to enforce the judgment in New York’.48 The court concluded that the plaintiffs ‘may seek to enforce [the Ecuadorian] judgment in any country in the world where Chevron has assets’.49 After the Ecuadorian plaintiffs failed in their efforts to have Judge Kaplan removed from the case for bias, the RICO trial commenced. The trial lasted for seven weeks with the court hearing testimony from 31 witnesses. The star witness for Chevron was Alberto Guerra, a former Ecuadorian judge who claimed to have witnessed Donziger approving a US$500,000 bribe to Judge Zambrano and to have corruptly ghostwritten Judge Zambrano’s decision. Donziger denounced the testimony as false and noted that Chevron had paid Guerra US$2 million and relocated his entire extended family to the US, which put his credibility into question. Judge Zambrano also was called by Chevron and cross-examined about how he could possibly have written such a lengthy decision. On 12 November 2013, while the RICO trial was underway in New York, Ecuador’s highest court, the National Court of Justice, affirmed the trial court’s judgment, while cutting it in half to US$8.646 billion by striking the provision that the judgment doubled because of Chevron’s failure to apologize. Chevron then filed an ‘extraordinary action for protection’ with the Constitutional Court of Ecuador, arguing that the legal proceedings had infringed on its constitutional rights. On 20 March 2014, the court agreed to hear this action. The Constitutional Court held hearings on 16 July 2015 and 22 May 2018, before rejecting Chevron’s claim in a judgment issued on 27 June 2018. On March 4, 2014, Judge Kaplan issued a devastating ruling against the plaintiffs in the RICO case. In an opinion that spans 485 pages, not counting its lengthy appendices, he found that the judgment of the court in Ecuador had been procured by fraud and thus was unenforceable.50 Relying largely on Guerra’s testimony, Judge Kaplan found that the plaintiffs bribed Judge Zambrano, in whose name the Lago Agrio judgment was issued, to permit them to write

Ibid, 649. Ibid. 48 Chevron Corp. v Naranjo, 2011 WL 4375022 (2d Cir. 2011), 667 F.3d 232 (2d Cir. 2012). 49 Ibid, 246. 50 Chevron Corp. v Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014). 46 47

Transnational litigation: what can we learn from Chevron–Ecuador?  329 his judgment. Judge Kaplan explained why he did not find Judge Zambrano’s testimony to be credible: Zambrano neither could recall nor explain key aspects of the 188 page opinion despite his claim that he alone wrote it. He was a new judge with very little civil experience, so much so that he admittedly had another former judge ghostwrite orders for him in civil cases. He was unfamiliar with – and on occasion bewildered by – certain of the most important concepts and evidence with which the opinion dealt. His testimony was internally inconsistent and at odds with other evidence in the record. He was an evasive witness. Finally, Zambrano had economic and other motives to testify as he did.51

Judge Kaplan concluded: The saga of the Lago Agrio case is sad. It is distressing that the course of justice was perverted. The LAP [Lago Agrio Plaintiffs] received the zealous representation they wanted, but it is sad that it was not always characterised by honor and honesty as well. It is troubling that … what happened here probably means that ‘we’ll never know whether or not there was a case to be made against Chevron’ …52

With respect to Texaco’s prior assertions that the courts in Ecuador were fair, the premise of the forum non conveniens dismissal in 2001, Judge Kaplan found that they ‘pertained to an entirely different time period and entirely different circumstances and thus could not be controlling here’.53 He also held that because its acquisition of Texaco had been executed through ‘a reverse triangular merger’, Chevron was not responsible for any statements made by Texaco in the initial Aguinda litigation.54 Finally Judge Kaplan noted that Texaco’s commitment to satisfy any judgment appeared only in briefs in Aguinda and reserved the right to assert defences under New York’s Recognition of Foreign Country Money Judgments Act, which would permit contesting a judgment on the grounds that it had been obtained fraudulently.55 Judge Kaplan issued an injunction prohibiting Donziger and two other representatives of the plaintiffs from taking any action to enforce the Ecuadorian judgment in the United States, and he required them to turn over to Chevron any money they receive from enforcement of the judgment in any foreign country. On 8 August 2016 Judge Kaplan’s decision was affirmed by the Second Circuit on appeal.56 The court rejected the notion that judicial estoppel barred Chevron from challenging the Lago Agrio judgment. The court noted that the company’s commitment to abide by judgments from Ecuador’s judiciary expressly reserved the right to challenge judgments obtained by fraud. The Second Circuit panel also rejected the notion that Judge Kaplan’s RICO judgment interfered with judicial comity. The court noted that the relief granted to Chevron ‘does not invalidate the Lago Agrio Judgment’ and ‘it does not prohibit any of the judgment creditors … from taking action to enforce the Judgment outside of the United States’.57 Instead, ‘What it does is prohibit Donziger and [two plaintiffs’] Representatives from profiting from the corrupt conduct that

53 54 55 56 57 51 52

Ibid, 482. Ibid, 644. Ibid, 629. Ibid, 630. Ibid, 631. Chevron Corp. v Donziger, 833 F.3d 74 (2d Cir. 2016). Ibid, 144.

330  Research handbook on transnational environmental law led to the entry of the Judgment against Chevron, by imposing on them a constructive trust for the benefit of Chevron.’58 The US Supreme Court denied review of the Second Circuit’s decision on 17 June 2017. Although Chevron had asked Judge Kaplan to require Donziger to pay it US$32 million in costs, on 28 February 2018 the judge ordered Donziger to pay only US$944,000. 2.5

Attempts to Enforce the Ecuadorian Judgment in Other Countries

Because Chevron had pulled all of its assets out of Ecuador, the plaintiffs sought to collect the judgment in the courts of Argentina, Brazil and Canada. Chevron vowed not to pay a penny of the judgment. A Chevron official famously was quoted as saying, ‘We’re going to fight this until hell freezes over. And then we’ll fight it on the ice.’ Legal proceedings to enforce the judgment were commenced in Canada on 30 May 2012, in Brazil on 27 June 2012, and in Argentina on 12 November 2012. Courts in all three countries ultimately held that the judgment cannot be collected against Chevron’s subsidiaries in their countries because they are not responsible for the acts of the parent corporation. Canadian courts were initially more sympathetic to enforcement of the Lago Agrio judgment. A 1 May 2013 decision by a motions judge in Ontario not to hear the enforcement action was reversed on appeal. Citing Chevron’s ‘hell freezes over’ vow, the Ontario Court of Appeal on 17 December 2013 concluded: ‘Chevron’s wish is granted. After all these years, the Ecuadorian plaintiffs deserve to have the recognition and enforcement of the Ecuadorian judgment heard on the merits in an appropriate jurisdiction. At this juncture, Ontario is that jurisdiction.’59 On 4 September 2015, the Supreme Court of Canada by a 7–0 vote held that it would be an error to dismiss the action to enforce the judgment without first hearing evidence. Writing for the Court, Justice Clément Gascon stated: ‘In a world in which businesses, assets and people cross borders with ease, courts are increasingly called upon to recognize and enforce judgments from other jurisdictions. Sometimes, successful recognition and enforcement in another forum is the only means by which a foreign judgment creditor can obtain its due.’60 On remand, Justice Hainey of the Ontario Superior Court of Justice ruled in January 2017 that the assets of Chevron Canada Ltd could not be seized to satisfy the Ecuadorian judgment because they were not an asset of the parent corporation. He concluded that there was insufficient evidence to ‘pierce the corporate veil’ because Chevron Canada had not been incorporated for purposes that were illegal, fraudulent or improper. Chevron then asked the court to order the Lago Agrio plaintiffs to post more than $1 million as security for the costs of an appeal. After a motions judge ordered the plaintiffs to provide $942,951, his order was reversed on appeal. The Ontario Court of Appeal concluded that ‘the unique factual circumstances of this case compel the conclusion that the interests of justice require that no order for security for costs be made’. The court noted that: the appellants are seeking to enforce a judgment in which they have no direct economic interest. Funds collected on the judgment will be paid into a trust and net funds are to be used for environ-

Ibid, 151. Yaiguaje v Chevron Corporation, 2013 ONCA 758, per MacPherson J.A., para. 75. 60 Chevron Corp. v Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69. 58 59

Transnational litigation: what can we learn from Chevron–Ecuador?  331 mental rehabilitation or health care purposes. This is public interest litigation. … In contrast to the position of the appellants, Chevron Corporation and Chevron Canada have annual gross revenues in the billions of dollars. It is difficult to believe that either of these two corporations, which form part of a global conglomerate with approximately 1,500 subsidiaries, require protection for cost awards that amount or could amount to a miniscule fraction of their annual revenues.61

The Ontario Court of Appeal heard oral argument on 17 and 18 April 2018. On 23 May 2018 the court affirmed Justice Hainey’s decision. It stated that ‘it is clear that the difficulties the appellants are encountering in collecting the judgment are not related to Chevron Corporation’s structuring of its subsidiaries’. It concluded that ‘What we are really being invited to do is to assist the appellants in doing an end-run around the United States court order by breaking with well-established jurisprudence and creating an exception to the principle of corporate separateness that is both ill-defined and will be unnecessary for similarly situated judgment creditors.’62 On 4 April 2019, the Supreme Court of Canada declined to review the judgment of the Ontario Court of Appeal. 2.6

Chevron’s Investor–State Dispute Arbitration Claim against Ecuador

As noted above, Chevron sought a judgment from the Permanent Court of Arbitration in The Hague that the government of Ecuador had breached its obligations under the Treaty on Encouraging and Reciprocal Protection of Investment, a bilateral investment treaty Ecuador had entered into with the US. Chevron claimed that the courts of Ecuador breached their obligations under the treaty by allowing the Lago Agrio litigation to proceed to a final judgment tainted by fraud. This arbitration did not involve the plaintiffs in the Lago Agrio litigation; it was between Chevron and the government of Ecuador. As Burt Neuborne describes the proceedings: ‘The private arbitrators permitted Chevron to attack the legitimacy of Ecuadorian courts, the integrity of the victims’ lawyers, and the moral integrity of the Ecuadorian trial judge without permitting the affected victims, the accused lawyers, or the accused judges an opportunity to defend themselves in person.’63 More than two years before the RICO judgment in the US, the arbitration tribunal issued an interim order on 25 January 2012, directing the government of Ecuador and its courts to suspend enforcement of the judgment of the court in Lago Agrio. After Ecuador failed to comply with the tribunal’s order, on 17 September 2012 Chevron petitioned the Office of the US Trade Representative (USTR) to punish Ecuador by withdrawing or suspending trade preferences the country enjoyed under US law.64 The government of Ecuador responded that it has ‘no power to order the courts to interfere in private-party litigation any more than the Government of the United States can order its courts to do so’.65 The USTR did not act on Yaiguaje v Chevron Corp., 2017 ONCA 827 (CanLII), 138 OR (3d) 1 (31 Oct. 2017). Yaiguaje v Chevron Corp., 2018 ONCA 472 (CanLII), 423 DLR (4th) 687 (2018). 63 B. Neuborne, ‘A Plague on Both Their Houses: A Modest Proposal for Ending the Ecuadorean Rainforest Wars’ (2013) 1 Stanford Journal of Complex Litigation 509, 520. 64 Letter from Edward B. Scott, Vice President and General Counsel, Chevron Corp. to Bennett Harman, Chairman, Andean Subcomm., Trade Pol’y Staff Comm., Office of the United States Trade Rep. (17 September 2012), http://​lettersblogatory​.com/​wp​- content/uploads/2012/09/Chevron-comment. pdf. 65 Letter from Nathalie Cely, Ambassador of the Republic of Ecuador, Washington DC, to Douglas Bell, Assistant US Trade Rep. for Trade Pol’y and Econ., Office of the US Trade Rep. (17 September 2012) 4, http://​lettersblogatory​.com/​wp​- content/uploads/2012/09/Ecuador-comments.pdf. 61 62

332  Research handbook on transnational environmental law Chevron’s petition, but the tribunal found in February 2013 that Ecuador was in violation of the tribunal’s interim award.66 The tribunal’s order stands in sharp contrast to the opinion of the US Court of Appeals for the Second Circuit, issued the day after the tribunal’s order, which explained why the court had reversed Judge Kaplan’s global injunction barring enforcement of the Lago Agrio judgment. Addressing international comity concerns, the Second Circuit stated that ‘it is a particularly weighty matter for a court in one country to declare that another country’s legal system is so corrupt or unfair that its judgments are entitled to no respect from the courts of other nations’. But it noted that ‘when a court in one country attempts to preclude the courts of every other nation from ever considering the effects of that foreign judgment, the comity concerns become far graver’. In such a case, ‘the court risks disrespecting the legal system not only of the country in which the judgment was issued, but also those of other countries, who are inherently assumed insufficiently trustworthy to recognize what is asserted to be the extreme incapacity of the legal system from which the judgment emanates’. Such a court would set ‘itself up as the definitive international arbiter of the fairness and integrity of the world’s legal systems’.67 On 30 August 2018, the arbitration tribunal concluded that the Lago Agrio court’s judgment was the product of fraud and that Ecuador had breached its obligation to treat Chevron fairly under the US–Ecuador bilateral investment treaty.68 In a 521-page decision the tribunal concluded that the Lago Agrio judgment was ‘“clearly improper and discreditable” with the result that the Claimants’ investments have “been subjected to unfair and inequitable treatment”’. The panel found that because ‘the Lago Agrio judgment was left unremedied by [Ecuador]’s own legal system, including the judgments of the Lago Agrio Appellate, Cassation and Constitutional Courts and the Respondent’s prosecutorial authorities’, this ‘conduct amounted to a failure of [Ecuador’s] national system as a whole to satisfy minimum standards required under international law’.69 The panel ordered Ecuador to nullify the judgment and to inform any country where its enforcement was sought that it was the product of fraud. Moreover, the panel concluded that ‘any injury to [Chevron] caused by the recognition or enforcement of any part of the Lago Agrio Judgment within or without Ecuador … shall be injuries for which the Respondent is liable to make reparation under international law’.70 The tribunal did find that the government of Ecuador’s 1998 release of Chevron from liability did not extinguish individual claims, brought against Chevron by the Lago Agrio plaintiffs, which rested on personal rights under the law of Ecuador. It also refused to decide whether Texaco’s representations during the Aguinda litigation, about accepting the judgment of the judiciary in Ecuador, bound Chevron. In April 2019 the Supreme Court of the Netherlands denied Ecuador’s request to overturn the arbitration panel’s rulings in favour of Chevron.

Fourth Interim Award on Interim Measures, Chevron Corp. and Texaco Petrol. Co. v Republic of Ecuador, PCA Case No. 2009-23, 25–26 (7 February 2013), www​.asil​.org/​ilib130215​.cfm​#j2. 67 Chevron Corp. v Naranjo (n 48). 68 Arbitration Tribunal, Chevron Corp. v Republic of Ecuador, Second Partial Award on Track II, 30 August 2018, IV-26. 69 Ibid, VIII-17-18. 70 Ibid, IX-8. 66

Transnational litigation: what can we learn from Chevron–Ecuador?  333

LESSONS FROM THE CHEVRON–ECUADOR LITIGATION

3

The Chevron–Ecuador litigation is now more than a quarter-century old. It brings to mind the fictional lawsuit of Jarndyce v Jarndyce from Charles Dickens’ Bleak House.71 Dickens described the lawsuit as one that has become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises … Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit.72

The Chevron–Ecuador litigation is such a uniquely catastrophic morass that some even question whether important lessons can be learned from it.73 But one outcome is indisputable: the litigation has neither produced remediation of the massive oil contamination in Ecuador nor compensation for its victims. The following are some thoughts on the implications of this sad saga for future efforts to promote transnational environmental accountability. 3.1

Holding Large Corporations Legally Accountable for Harm in the Developing World Is Difficult because of the Enormous Resources They Can Devote to their Defence

The Chevron–Ecuador saga demonstrates how difficult it is to hold enormously wealthy multinational corporations accountable for harm they cause in developing countries. In its decades of fighting the lawsuits, Chevron hired more than 60 law firms and more than 2,000 legal professionals, spending hundreds of millions of dollars, an amount well in excess of the $140 million settlement that an attorney for the Lagio Agrio plaintiffs proposed in 1999. Yet Chevron officials apparently believe that they are on a larger mission to deter future lawsuits by environmental plaintiffs hoping for generous settlements from a company that now generates $160 billion a year in annual revenue. Chevron’s scorched earth litigation strategy sought to exploit the corporation’s wealth to overwhelm the plaintiffs. Initially, the plaintiffs were able to attract substantial funding for the litigation because Chevron is one of the few entities that can afford to pay a multi-billion dollar judgment without it having any material effect on its finances. Prior to the issuance of the judgment in Ecuador, Morgan Stanley predicted that Chevron ultimately would have to settle the case for between $2 billion and $3 billion. This enabled the plaintiffs to obtain financing from

71 The author is one of many making this analogy. See J. Ku, ‘Chevron–Ecuador: The Jarndyce v. Jarndyce of the Twentieth Century’ (Opinio Juris, 2 April 2012), http://​opiniojuris​.org/​2012/​04/​02/​ chevron​-ecuador​-the​-jarndyce​-v​-jarndyce​-of​-the​-21st​-century/​; see also B. Neuborne, ‘A Plague on Both Their Houses: A Modest Proposal for Ending the Ecuadorean Rainforest War’ (2013) 1 Stanford Journal of Complex Litigation 509, 511. 72 C. Dickens, Bleak House. 73 C. Whytock argues that Chevron–Ecuador ‘is not representative of transnational litigation in general, and therefore by itself does not provide an adequate basis for reform’. He cautions against ‘Chevronizing’ the law of transnational litigation. C. Whytock, ‘Some Cautionary Notes on the “Chevronization” of Transnational Litigation’ (2013) 1 Stanford Journal of Complex Litigation 467, 468.

334  Research handbook on transnational environmental law hedge funds and to hire a major Washington law firm to assist with enforcement litigation.74 Chevron responded by suing both the hedge funds and the law firm for facilitating a fraud, bludgeoning them into settlements in which they ultimately were forced to disavow the Lago Agrio plaintiffs and their attorneys. John Keker, a highly respected attorney who briefly represented Donziger in defending against the RICO action, withdrew from the case in May 2013 because Donziger owed him $1.4 million that he had been unable to pay. Keker stated: ‘Through scorched-earth litigation, executed by its army of hundreds of lawyers, Chevron is using its limitless resources to crush defendants and win this case through might rather than merit. … Encouraged by this court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the court will use it to hurt Donziger.’ Chevron officials once described their strategy in the case to be ‘to demonize Donziger’. Based on the RICO judgment against him, Donziger was suspended from the practice of law in New York in July 2018, without the benefit of a hearing, on grounds of professional misconduct. With the enormous resources at their disposal, Chevron’s lawyers were able to weaponize legal processes and focus them on destroying their opponents. 3.2

Judges and Defendants Should Be More Reluctant to Invoke Forum Non Conveniens to Seek Dismissal of Cases Filed in US Courts

After the plaintiffs refiled their litigation against Chevron in the court in Lago Agrio, I predicted, in an article forecasting the future of environmental law, that as other nations upgrade their judicial systems, US corporations eventually would prefer to be sued in US courts rather than in foreign jurisdictions.75 The basis for this prediction was the fact that forum non conveniens dismissals no longer guaranteed that US defendants would escape all liability. A quarter-century ago such a dismissal was almost invariably the end of the company’s legal jeopardy as few plaintiffs pursued the inferior remedies offered by foreign jurisdictions, particularly in countries when defendant corporations had cosy relationships with the government.76 As Burt Neuborne explains, ‘While Texaco/Chevron’s lawyers assured the Second Circuit that Ecuador’s courts were fully capable of managing the huge environmental litigation fairly and efficiently, I suspect that the company’s executives expected that the massive environmental case would founder in an underfunded, unsophisticated Ecuadorean court system R. Gabino, ‘¿Como Pagan Los Ecuatorianos el Juicio Contra Chevron?’ (BBC Mundo, 18 February 2011), www​.bbc​.co​.uk/​mundo/​noticias/​2011/​02/​110218​_ecuador​_chevron​_financiamiento​_rg​ .shtml; see also S. Tong, ‘A Long, Long Legal Bet’ (Marketplace, 15 February 2011), http://​marketplace​ .publicradio​.org/​display/​web/​2011/​02/​15/​pm​-a​-long​-long​-legal​-bet; B. Casselman and others, ‘Chevron Hit with Record Judgment’ (Wall Street Journal, 15 February 2011), at A1, www​.wsj​.com/​articles/​ SB100014240​52748703584804​576144464044068664. 75 R. Percival, ‘Environmental Law in the Twenty-First Century’ (2007) 25 Virginia Environmental Law Journal 1. One observer noted that Chevron’s ‘great blunder in this dispute was to ship it to Ecuador in the name of forum non conveniens’. He argued that the overriding lesson of this litigation was ‘that business defendants should stop invoking FNC’. M. Goldhaber, ‘Kindergarten Lessons from Chevron in Ecuador’ (Corporate Counsel, 21 March 2013), www​.law​.com/​corporatecounsel/​PubArticleCC​.jsp​?id​=​ 1363538256567​&​Kindergarten​_Lessons​_from​_Chevron​_in​_Ecuador. 76 See P. Bookman, ‘Once and Future U.S. Litigation’ in P. Stephan (ed.), Foreign Court Judgments and the United States Legal System (Sokol Colloquim 2014) 35, 40 (describing the conventional wisdom that once dismissed from US courts, cases would go away or be settled for a pittance). 74

Transnational litigation: what can we learn from Chevron–Ecuador?  335 with neither experience in, nor legal structure for, managing a huge aggregate environmental litigation.’77 Despite the Lago Agrio plaintiffs’ failure to enforce the Ecuadorian judgment, this litigation is likely to shape future norms governing the operation of extractive industries in the developing world. No major oil company today would dare adopt the waste disposal practices Texaco used in Ecuador. Companies are now well aware that their environmental failings, even in remote corners of the globe, will swiftly be brought to the attention of their shareholders. Today NGOs increasingly fight extractive industries both in actual courts and in the court of global public opinion. Even cases that do not succeed in court can help shine the glare of international publicity on environmental practices that fall short of those required in the developed world. In the Ecuador litigation, both Chevron and the plaintiffs aggressively used all means available to influence public opinion. Recent academic commentary has suggested that US courts should think twice before dismissing cases on forum non conveniens grounds.78 Professor Bookman argues that it is important that the court ensure that at least one forum exists where plaintiffs have an opportunity to vindicate their rights. A lawyer for Chevron maintains that ‘There is nothing inconsistent about seeking to litigate a foreign dispute in a foreign country, while still expecting to be treated fairly and accorded due process of law.’ He notes that a fraudulent foreign judgment does not become ‘more enforceable than any other fraudulent judgment simply because the litigation began with a forum non conveniens dismissal’.79 Although the US Supreme Court has restricted access to US courts by foreigners in recent years,80 some US courts are scrutinizing more carefully claims that foreign courts provide an adequate alternative forum. In March 2019 the US Court of Appeals for the Third Circuit reversed the forum non conveniens dismissal of a lawsuit brought by Peruvian farmers in federal district court in Delaware against a multinational mining enterprise.81 The plaintiffs allege that the mining company used violence to evict them from their farm located atop a gold deposit the company wants to mine. Although plaintiffs claimed that the mining company had exerted improper influence over judges, prosecutors, and other government officials in Peru, the district court relied on the fact that the key witnesses were located in Peru to support its dismissal of the action on 11 April 2018. However, the appellate court reversed, noting that subsequent to the dismissal, the Peruvian judiciary had become engulfed in a corruption scandal that forced the country’s top judicial official to resign, led the Peruvian Congress to declare a state of emergency, and the country’s president to declare that the ‘system for administering justice has collapsed’. The court ordered the district court to reconsider its dismissal decision.

B. Neuborne, ‘A Plague on Both Their Houses: A Modest Proposal for Ending the Ecuadorean Rainforest War’ (2013) 1 Stanford Journal of Complex Litigation 509, 518. 78 See, e.g., P. Bookman, ‘Litigation Isolationism’ (2015) 67 Stanford Law Review 1081; P. Bookman, ‘The Unsung Virtues of Global Forum Shopping’ (2016) 92 Notre Dame Law Review 579. 79 T. Boutrous, ‘Ten Lessons from the Chevron Litigation: The Defense Perspective’ (2013) 1 Stanford Journal of Complex Litigation 219, 235. 80 See Kiobel v Royal Dutch Petroleum Co., 569 U.S. 108 (2013). 81 Acuna-Atalaya v Newmont Mining Corporation, No. 18-2042, US Court of Appeals for the Third Circuit, March 20, 2019, unpublished opinion. 77

336  Research handbook on transnational environmental law 3.3

As US Courts Become Less Receptive to Transnational Litigation, Developing Countries Should Upgrade the Capacity of their Judicial Systems While Resisting Measures That Facilitate Fraud

Chevron’s legal strategy seems to have been driven by the assumption that the risk of a foreign court effectively holding it liable was miniscule. Yet as transnational environmental law flourishes, countries throughout the world now are upgrading their judicial systems, making such assumptions increasingly questionable. Even as the US Supreme Court discourages US courts from hearing transnational litigation, some developing countries have responded to forum non conveniens dismissals by amending their laws to facilitate class actions. For example, when lawsuits over the deadly 1984 toxic chemical leak in Bhopal, India, were dismissed in the US, India responded by adopting legislation to facilitate class actions, as the US court dismissing the case had noted was a possibility.82 In 1999 Ecuador adopted its Environmental Management Act while Texaco’s motion for a forum non conveniens dismissal was pending in federal court in New York. This established a private right of action to recover damages for the cost of remediating environmental harms. It authorized representational litigation and a kind of pretrial discovery previously unknown in Ecuadorian courts.83 Some countries, however, have gone too far. Nicaragua adopted procedures that enabled the employees of banana growers to obtain virtually automatic judgments against foreign companies which used the dangerous pesticide 1,2-Dibromo-3-chloropropane (DBCP). This allowed many people who had neither suffered injuries nor even been exposed to the pesticide to obtain Nicaraguan judgments that ultimately were declared unenforceable in US courts.84 Ironically, had the case against Chevron remained in US courts, it might be vulnerable to dismissal today in light of the US Supreme Court’s Kiobel decision. As noted above, the initial lawsuit filed against Texaco in New York was brought under the ATS, a law enacted by the first US Congress in 1789 that authorizes civil suits by aliens in US federal court for torts ‘committed in violation of the law of nations’. In 2013 the US Supreme Court sharply narrowed the reach of the ATS by applying the presumption against extraterritorial application of US law to it. The Court held that the Kiobel litigation could not be brought because it alleged torts occurring entirely outside the US (the killing of environmental activists in Nigeria by the Nigerian military allegedly with the complicity of Royal Dutch Shell).85 The Kiobel decision has been described as ‘a mortal blow’ to the ATS, but transnational tort litigation still remains an option.86 The US judiciary has never been particularly welcoming to foreign plaintiffs, as the Chevron–Ecuador case illustrates. In fact, no environmental plaintiff ever has successfully litigated an ATS case to judgment, though some cases have been settled on terms favourable to plaintiffs. The Kiobel decision may mean that Chevron would have prevailed in the litigation In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India 634 F. Supp. 842, 851 (S.D.N.Y. 1986). 83 C. Rogers, ‘When Bad Guys Are Wearing White Hats’ (2013) 2 Stanford Journal of Complex Litigation 487, 503. 84 See Osario v Dole Food Co., 635 F.3d 1277 (11th Cir. 2011). 85 Kiobel v Royal Dutch Petroleum Co., 569 U.S. 108 (2013). 86 R. Alford, ‘Kiobel Insta-Symposium: The Death of the ATS and the Rise of Transnational Tort Litigation’ (Opinio Juris, 17 April 2014), http://​opiniojuris​.org/​2013/​04/​17/​kiobel​-instthe​-death​-of​-the​ -ats​-and​-the​-rise​-of​-transnational​-tort​-litigation/​. 82

Transnational litigation: what can we learn from Chevron–Ecuador?  337 against it for polluting Ecuador had it not fought and won dismissal from the US courts on the grounds that Ecuador was a more convenient forum. Transnational environmental accountability remains an elusive goal because few developing countries have effective regulatory systems to control risky activities or to hold foreign corporations accountable after harm has been caused. The United Nations Human Rights Council has begun negotiations toward drafting ‘an international legally binding instrument on transnational corporations and other business entities with respect to human rights’,87 but few are optimistic that this effort will produce enforceable international norms for transnational accountability. For now, prospects for improving accountability depend largely on developing countries improving their own legal systems. 3.4

The Breathtaking Reach of International Investor–State Arbitration Is in Tension with the Application of Domestic Legal Norms to Transnational Corporations

By taking its case to the Permanent Court of Arbitration, Chevron created a new vehicle for effectuating an end run around the courts of Ecuador in which it had lost. Chevron was allowed to attack the judgment of the Ecuadorian courts in both the RICO action in New York and the international arbitration in The Hague, even as independent representatives of the victims of the oil pollution were denied intervention in both venues. The arbitral tribunal established under the bilateral US–Ecuador investment treaty conducted its own inquiry and ordered the government of Ecuador to annul the judgment of its courts. In this respect the tribunal asserted greater power over foreign courts than US judges ever would do. Even as the Second Circuit declared that a US judge could not dictate to foreign courts, the arbitral tribunal ordered the government of Ecuador to annul the judgment of its courts. Concerns have been expressed about the extraordinary power that arbitrators purport to wield in investor–state dispute resolution, as illustrated by the Chevron–Ecuador case.88 At a minimum it seems not too much to ask that the exercise of such extraordinary power by arbitral tribunals should be accompanied by the full transparency that would accompany proceedings in courts.89 As Burt Neuborne observes: ‘The spectacle of private [bilateral investment treaty] arbitrators solemnly condemning Ecuadorean courts as procedurally unjust while sitting as closed, ex parte accusatory tribunals would be funny if so much were not at stake.’90

Elements for the Draft Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Chairmanship of the OEIGWG established by HRC Res. A/HRC/RES/26/9 (29 September 2017), www​.ohchr​.org/​Documents/​HRBodies/​HRCouncil/​ WGTransCorp/​Session3/​LegallyBindingInstrumentTNCs​_OBEs​.pdf. 88 See M. Goldhaber, ‘The Rise of Arbitral Power over Domestic Courts’ (2013) 1 Stanford Journal of Complex Litigation 373. 89 M. Goldhaber, ‘Chevron and the Rise of Arbitral Power’ (Opinio Juris, 28 October 2013), http://​ opiniojuris​.org/​2013/​10/​28/​chevron​-rise​-arbitral​-power​-introduction​-michael​-d​-goldhaber/​. 90 Neuborne (n 77). 87

338  Research handbook on transnational environmental law 3.5

Chevron/Ecuador Illustrates the Difficulty of Enforcing Foreign Judgments against Parent Companies when Their Assets Are Held by Subsidiaries in Other Countries

Despite the RICO judgment against the Lago Agrio plaintiffs and their lawyers, the courts in Brazil, Argentina and Canada that have refused to enforce the Ecuadorian judgment have done so not on the ground that it was procured by fraud, but rather because they found that Chevron’s subsidiaries in their countries were not liable for the acts of their parent corporation. Absent some indication that Chevron’s subsidiaries in these countries were established for fraudulent purposes, courts have refused to pierce the corporate veil. Thus, even one of the largest multinational oil companies has been able to escape enforcement of a judgment by arguing that its subsidiaries in other countries are not liable for debts of their parents. The US is not a party to any international treaties on the reciprocal recognition and enforcement of foreign judgments. These matters are largely governed by general principles of comity and state law, including the Uniform Foreign Money-Judgments Recognition Act,91 which has been adopted by more than 30 US states and territories.92 For a final foreign judgment to be enforced in the US, the foreign court must have been an impartial tribunal using principles that afford due process of law with personal jurisdiction over the defendant and subject matter jurisdiction over the controversy.93 The Hague Commission is currently drafting a new Convention on the Enforcement of Foreign Judgments, but it is unlikely that it will have much impact on the various states.94 Most states and the US Uniform Act favour a pro-enforcement policy for foreign judgments that requires a showing that the foreign country’s judicial system as a whole is unfair in order to deny enforcement.95 But in light of the RICO judgment against the Lago Agrio plaintiffs and their lawyers, efforts to enforce the judgment in the US would be futile.

4 CONCLUSION The residents of Ecuador’s Oriente who have had to cope with the consequences of enormous oil contamination for decades are the largest losers in the Chevron–Ecuador story. As the Tribunal of the Permanent Court of Arbitration concluded, ‘it is deeply regrettable that individual claims for personal harm caused by such damage were not amicably settled long ago, without the massive costs expended on the multiple lawsuits and arbitrations (including

Uniform Foreign Money-Judgments Recognition Act, 13 Pt. II U.L.A. 39 (2002). M. Moedritzer, K. Whittaker and A. Ye, ‘Judgments “Made in China” but Enforceable in the United States?: Obtaining Recognition and Enforcement in the United States of Monetary Judgments Entered in China against U.S. Companies Doing Business Abroad’ (2010) 44 International Law 817, 819. 93 Ibid, 822. 94 See Hague Commission on Private International Law, The Judgments Project, 22nd Diplomatic Session, www​.hcch​.net/​en/​projects/​legislative​-projects/​judgments. 95 See C. Whytock and C. Burke Robertson, ‘Forum Non Conveniens and the Enforcement of Foreign Judgments’ (2011) 111 Columbia Law Review 1444. 91 92

Transnational litigation: what can we learn from Chevron–Ecuador?  339 this arbitration)’.96 The clearest lesson from this sad saga is that the litigation utterly failed to compensate the plaintiffs or to remediate massive oil pollution in the Oriente. Looking back on a quarter-century of one of the most bizarre and complex sagas in legal history, one central fact stands out above all others. The plaintiffs initially sued the oil company in the US, but the case was dismissed in favour of the courts of Ecuador at the behest of the oil company and over the objections of the plaintiffs. No matter what reprehensible acts the plaintiffs’ attorneys subsequently committed, these facts make it simply impossible to accept the oil company’s claim that the litigation was fraudulent from the start. Chevron’s lawyers ultimately returned to the very court in New York in which the plaintiffs wanted their case tried to attack the Ecuadorian court’s judgment, despite their previous claims that the judiciary in Ecuador was fair and impartial. The Chevron–Ecuador case illustrates how difficult it is to use transnational litigation to hold multinational corporations accountable for environmental harm in developing countries. Multinational oil companies have far greater resources to devote to defending such litigation than pollution victims have for prosecuting it. Transnational environmental accountability is more important than ever, but for now such accountability must depend largely on the court of global public opinion.

Chevron Corp. v Donziger (n 50) VIII-22.

96

20. Human rights in a changing environment Ole W. Pedersen

1 INTRODUCTION This chapter considers the relationship between human rights and environmental law against the backdrop of the emerging paradigm of transnational environmental law. The arrival of the environmental human rights agenda as a self-standing legal doctrine, situated between established disciplines of international law, human rights law and environmental law, is at least in part explained through the prism of transnational movements. In the account put forward here, the environmental human rights doctrine embodies the characteristics of a transnational movement of law by virtue of it exhibiting a strong sense of norm migration across traditional legal boundaries. Moreover, traditional lawmakers have, to a point, played a minor role in developing and strengthening the environmental human rights doctrine. Instead, courts and tribunals, primarily in regional human rights regimes, have filled this power vacuum through their eagerness to progress the environmental human rights doctrine, and they have done so by taking inspiration from extrinsic sources of law. With this eagerness, however, come challenges and responsibility. Most notably this responsibility includes the need to appreciate the potential risks associated with readily applying rules and norms external to the jurisdiction. At present, it is not clear that human rights courts and tribunals are alert to this.

2

TRANSNATIONAL ENVIRONMENTAL HUMAN RIGHTS

Before examining the engagement of human rights law with environmental claims, it is worth considering the extent to which the emergence of environmental rights maps onto ideas and definitions of transnational environmental law. Considering that one of the main characteristics of transnational environmental law is the process of norm migration across legal boundaries, the emergence of environmental human rights in international and domestic law comes across, at first sight, as inherently transnational.1 The merging of two otherwise self-standing disciplines and practices of law (human rights law and environmental law) represents a paradigmatic example of migration of rules and norms from one legal discipline and setting to another. This transnational dynamic manifests itself in the environmental rights discourse in two ways: first, in the express adoption of environmental rights provisions in a subset of regional human rights systems and in domestic constitutions and, secondly, in their adjudication primarily before international human rights tribunals. Traditionally, environmental law can be defined as an area of law heavily influenced by scientific and technological impulses, responding to a complex set of interactions between

1 E.g., G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) Transnational Environmental Law 31, 31–4.

340

Human rights in a changing environment  341 human activities and environmental elements.2 Typically, the legal responses to these impacts coalesce into a discipline which is heavily influenced by scientific consideration (for example, how much of a given substance can be emitted into a particular resource), produced and implemented through technocratic decision-making processes (involving, for example, administrative agencies, and international and supranational agencies in the standard setting), and often anchored in procedures of cost–benefit analysis and impact assessment. Against these scientific and technocratic impulses stands the discipline of human rights law which, in general terms, embodies norms and values that are judged to be inalienable, universal and able to ‘trump’ other types of norms.3 The emergence of a common ground between these two disciplines, however simplistic this outline may be, arguably represents a merging of two different regimes, whose foundations and conceptual cores are entirely distinct from one another. The often technocratic and scientific ethos of environmental law stands in sharp contrast to the strongly normative and often unqualified nature of human rights. A further distinction of the emergence of the environmental human rights agenda is that the forces most prominently promoting this agenda are not necessarily the norm-creating actors traditionally encountered in international law. To date, there is no express recognition in international law of a ‘right to environment’ and there is little to suggest that the adoption of such a right is forthcoming (thought there are examples of regional human rights treaties recognizing such a right).4 The lack of express recognition in international law does not, naturally, detract from the important yet distinct increase in the recognition of environmental rights at the domestic level, where this often manifests itself in constitutional provisions.5 In the absence of express state recognition of such a right in international law, the norm-creating endeavours have been left to non-state actors, international organizations and, most prominently, international tribunals. In this context of non-traditional norm creation, important work has been undertaken by the Independent Expert and Special Rapporteurs on human rights and the environment appointed by the United Nations (UN) Human Rights Council in terms of clarifying and synthesizing the conceptual and legal obligations arising from the emergence of human rights and environmental law.6 More importantly, a serious and sustained effort to recognize the links between human rights law and the environment has played out before human rights tribunals and courts across a range of jurisdictions. Sometimes this effort has been undertaken under the auspices of regional human rights systems that expressly recognize a right to environment, such as the E.g., Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), OJ L 334, 17 December 2010, pp. 17–119. 3 O. Pedersen, ‘Environmental Law and Constitutional and Public Law’ in E. Lees and J.E Viñuales (eds), The Oxford Handbook on Comparative Environmental Law (Oxford University Press 2019) 1073–90. 4 See e.g., essays in J. Knox and R. Pejan, The Human Right to a Healthy Environment (Cambridge University Press 2018). 5 See e.g., J. Gellers, The Global Emergence of Constitutional Environmental Rights (Routledge 2017). 6 See e.g., Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, Mapping Report, UN Doc. A/HRC/25/53 and Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, Compilation of good practices, UN Doc. A/HRC/28/61. 2

342  Research handbook on transnational environmental law American Convention on Human Rights7 and the African Charter of Human and Peoples’ Rights.8 However, in other instances, such as in the case law of the European Court of Human Rights (ECtHR), which incorporates environmental concerns into the European Convention on Human Rights (ECHR),9 environmental rights norms are created in the absence of express state endorsement, in a striking example of judicial ‘vacuum filling’.10 Over time, the ECtHR has gone on to develop a rich body of case law which engages with the intersection between environmental issues and human rights law.11 Ironically, the European human rights system – which does not expressly incorporate a right to environment – has proven a much more fertile ground for environmental claims than certain human rights systems that expressly include a right to environment.12 Two reasons underpin the decision to highlight the human rights system of the European Convention in the context of the transnational emergence of environmental rights. First, the ECtHR has over the years developed a rich case law on environmental rights. In the absence of an express recognition of any link between human rights and the environment in the Convention itself, it has been forced to look to different contexts, cultures and sources in order to respond to the many environmental claims before it. Secondly, the ECtHR’s case law provides the most comprehensive one-stop case study of environmental rights adjudication, which contributes to a better understanding of the relationship between environmental rights and transnational environmental norms. The earliest examples of the emergence of a nexus between human rights and environmental concerns are commonly traced to international environmental law and the Stockholm Declaration on the Human Environment (‘Stockholm Declaration’)13 which makes what now seems the rather obvious point that basic environmental conditions are central to the enjoyment of human rights.14 The positivistic origin of the link between human rights and the environment in the Stockholm Declaration does not in itself, however, suggest a specifically transnational emergence of environmental human rights. The Stockholm Declaration is, after all, an international document agreed to and endorsed by states. Notwithstanding its non-binding nature, the Declaration is therefore a quite traditional document of international environmental law, created and endorsed by states with the view to capture predominant

American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Cultural and Social Rights, 1989 28 ILM 1561. 8 African Charter of Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217, Art. 24. See also L. Chenwi, ‘The Right to a Satisfactory, Healthy, and Sustainable Environment in the African Regional Human Rights System’ in Knox and Pejan (n 4) 59–85. 9 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221. 10 Shaffer and Bodansky (n 1). 11 See e.g., Council of Europe, Manual on Human Rights and the Environment (2012), www​.echr​ .coe​.int/​LibraryDocs/​DH​_DEV​_Manual​_Environment​_Eng​.pdf. 12 The number of environmental cases (widely defined) heard by the ECtHR presently stands at over 250 cases, which is in sharp contrast to the number of cases heard by the African Court of Human Rights and the Inter American Court of Human Rights. O. Pedersen, ‘Of Successes and Failures: Greening the European Convention of Human Rights’ (‘Human Rights in the Anthropocene’ conference presentation, Raoul Wallenberg Institute of Human Rights, Lund University, 16–17 October 2019). 13 Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972) 11 ILM 1416. 14 Ibid, Principle 1. 7

Human rights in a changing environment  343 understandings of the law. The real rise of environmental human rights as a transnational force has, however, emerged slowly through a combination of judicial endorsement and express recognition in international legal documents. Examples of this include the forceful separate opinion by Judge Weeramantry in the decision of the International Court of Justice (ICJ) in Gabčíkovo–Nagymaros in which he famously observed, in tune with the Stockholm Declaration, that environmental protection is a fundamental prerequisite for the enjoyment of basic human rights.15 Real progress towards recognizing the synergies between human rights law and environmental issues has, however, been confined to regional and domestic arenas. The standout examples of this include the adoption of the African Charter on Human and Peoples’ Rights, which came into force in 1986 and includes a right to a ‘satisfactory environment favorable to their development’.16 Though sparse compared to that of the European Court of Human Rights, the case law emerging from the African Court of Human and Peoples’ Rights, as well as that of the Commission on Human and Peoples’ Rights, indicates that the right to environment imposes a due diligence obligation on states to take reasonable steps to prevent pollution and ecological degradation.17 Similarly, in a recent advisory opinion, the Inter-American Court of Human Rights has interpreted the right to environment in the American Convention on Human Rights as being owed not just to present generations but also to future generations and, importantly, as being applicable extraterritorially.18 Significantly, the rights in the Protocol to the American Convention are backed by specifically adopted indicators for assessing the progress made by contracting states in implementing the Protocol.19 In parallel, progress towards positive recognition of environmental human rights was made with the adoption of the Aarhus Convention on access to environmental information, public participation and access to justice in environmental matters in 1998 (‘Aarhus Convention’).20 The Convention is the first multilateral environmental agreement (MEA) specifically dedicated to environmental rights. Though the Convention is a regional agreement, it has a strong transnational character. The rights to access to environmental information, public participation and access to justice in environmental matters implicitly give force to the non-binding content of Principle 10 of the 1992 Rio Declaration on Environment and Development (‘Rio Declaration’) which itself, much like the Stockholm Declaration before it, highlights the link between effective environmental protection and rights, albeit through the focal point of procedural rights. On this reading, the Aarhus Convention – a regional MEA – provides a legally binding regime on the back of a non-binding international declaration. This development

Gabčíkovo–Nagymaros Project (Hungary v Slovakia) 1997 ICJ 7, 88 (separate opinion of Vice-President Weeramantry). 16 African Charter of Human and Peoples’ Rights, Art. 24. 17 E.g., SERAC v Nigeria Comm. 155/96 ACHPR Doc. Comm/A044/1 and African Commission on Human and People’s Rights v Republic of Kenya (Application No. 006/2012) (decision of 26 May 2017). See also Chenwi (n 8). 18 Inter-American Court of Human Rights, Advisory Opinion, OC-23/17 of November 15, 2017, 79–80. 19 Organization of American States, Progress Indicators for Measuring Rights under the Protocol of San Salvador, second edition, available at www​.oas​.org/​en/​sedi/​pub/​progress​_indicators​.pdf. 20 Aarhus Convention on access to environmental information, public participation and access to justice in environmental matters (adopted 25 June 1998, entered into force from 30 October 2001) 2161 UNTS 450. 15

344  Research handbook on transnational environmental law highlights that non-binding environmental norms may over time (indeed, a relatively short time span) migrate into formal legally binding rules, but also how such norms migrate across legal boundaries; from the international to the regional. The most recent initiative to highlight the transnational migration of environmental rights is the Escazú Agreement on access to information, public participation and access to justice in environmental matters by Latin American and Caribbean States.21 The adoption of regional MEAs specifically providing for environmental rights across two regions which otherwise differ significantly in level of development and legal culture is a significant indicator of the importance attached to environmental rights and the ability of the rights terminology to migrate across traditional legal boundaries. This point is all the more relevant when considering that the inclusion of Principle 10 in the Rio Declaration was primarily a result of the work undertaken by developing states, even though the origin of the underlying ideals is most commonly traced back to domestic environmental law provisions found in developed countries.22 A commonly cited origin for the underlying objective in Principle 10 of the Rio Declaration is that of the obligations in the National Environmental Policy Act adopted by the United States (US) Congress in 1972.23 To the extent that this is the case, and to the extent it is possible to verify this potential migration in detail, the movement from domestic law to international environmental law further strengthens the argument that environmental rights are inherently migratory and transnational. Beyond the recognition of the link between human rights law and the environment in regional environmental rights regimes and non-binding international environmental law instruments, a significant development which further underlines the migratory and transnational character of the environmental rights discourse is the speed with which domestic legal systems have embraced the environmental rights agenda. The endorsement of environmental rights provisions is particularly prominent in the context of domestic constitutional documents across the world.24 Provisions on environmental rights are consequently found in dozens of constitutions across a wide range of developed, developing, post-Communist countries and emerging democracies. Though the exact definition, meaning and scope of each constitutional environmental rights provision varies from context to context and jurisdiction to jurisdiction, the inclusion of environmental rights provisions in domestic constitutional documents stands as one of the more prominent examples of the rights revolution in modern times.25 Many of the constitutional environmental right movements thus resemble the developments that have taken place on the international plane and, in addition to provisions establishing rights to a 21 Escazú Agreement on access to information, public participation and access to justice in environmental matters by Latin American and Caribbean States (adopted 4 March 2018, not yet in force), available at www​.cepal​.org/​en/​subsidiary​-bodies/​regional​-agreement​-access​-information​-public​-participation​ -and​-justice/​text​-regional​-agreement. See also E. Barritt, ‘Global Values, Transnational Expression: From Aarhus to Escazú’ in this book. 22 E.g., OECD, Decision-Recommendation of the Council concerning Provision of Information to the Public and Public Participation in Decision-Making Processes related to the Prevention of, and Response to, Accidents Involving Hazardous Substances, C(88)85/Final, 8 July 1988. 23 Section 102 of 42 US Code 4321. 24 E.g., J. May and E. Daly, Global Environmental Constitutionalism (Cambridge University Press 2015). 25 See H. Sik Cho and O. Pedersen, ‘Environmental Rights and Future Generations’ in M. Tushnet and others (eds), Routledge Handbook of Constitutional Law (Routledge 2013) 401–12. See also L. Kotze, ‘The Transnationalization of Environmental Constitutionalism’ in this book.

Human rights in a changing environment  345 ‘healthy’, ‘sustainable’, or ‘favourable’ environment, include provisions providing for rights of public participation, access to environmental information and access to independent review procedures.26 The narrative which emerges in the context of environmental rights is consequently best summed up as an example of migration and cross-fertilization of norms from one jurisdiction to another. This migration is not, however, one-directional but criss-crosses domestic, regional and international jurisdictions. Examples of migration consequently include norm migration from domestic legal systems and cultures, making their way into international instruments and documents framed in the vocabulary of rights (procedural as well as substantive). Similarly, this migration manifests itself in the non-binding international instruments of the Stockholm and Rio Declarations, which ultimately anchor themselves in treaty law, creating binding obligations on states, and finally find expression in domestic law (including in national constitutions). This emergence and solidification ultimately results in adjudication before courts and tribunals, including human rights tribunals.

3

FROM DISCOURSE TO ADJUDICATION

In order to substantiate the claim that the emergence of environmental human rights is essentially a transnational development, the case law of the European Court of Human Rights needs to be scrutinized in further detail. Further analysis will show that the ECtHR makes use of a series of different interpretive mechanisms and tools in order to fit environmental claims within the Convention system. The main rule to surface from the Court’s case law is that where environmental conditions in a responding state become sufficiently severe to threaten the enjoyment of an applicant’s home and family life, or where the environmental conditions pose material risks to an applicant’s life and well-being, the state is under a positive obligation to put in place a regulatory response.27 The case law of the ECtHR is thus rich with examples of a state being found in violation of the Convention as a result of its failure to provide sufficient protection against environmental harm. Examples include heavy industrial activities which cause immediate and severe harm to the applicant’s family,28 mining activities which cause immediate risks to the life and well-being of neighbouring families,29 and the nuisance caused by heavy traffic30 and noisy nightlife activities.31 Ordinarily, however, in order for a claim to arise under the Convention, the Court has repeatedly stressed that, among other things, the material nuisance must attain a minimum level of severity (namely, exceed what is ordinarily expected as part of normal life).32 Similarly, a central theme to emerge from the Court’s case law is the fact that the ECtHR will take into account whether a responding state has allowed applicants the right Pedersen (n 3). For an overview see O. Pedersen, ‘The Ties that Bind: The Environment, the European Convention on Human Rights and the Rule of Law’ (2010) 16 European Public Law 571. 28 López Ostra v Spain, (1995) 20 EHRR 277; and Fadeyeva v Russia, (2007) 45 EHRR 10. 29 Taşkin and others v Turkey, (2006) 42 EHRR 50; Tătar v Romania, decision of 27 January 2009 (Application No. 67021/01). 30 Dees v Hungary, decision of 9 November 2010 (Application No. 2345/06). 31 Moreno Gómez v Spain, (2005) 41 EHRR 40. 32 Fadeyeva v Russia (n 28). 26 27

346  Research handbook on transnational environmental law to respond to and influence the decision making against which a complaint arises.33 In Hatton v United Kingdom, the Court specifically held that the fact that the applicants had had the chance to make representations against the government decision which they sought to impugn suggested that no violation had taken place.34 This move represents a significant development as the ECtHR effectively read provisions of a procedural nature into the substantive rules. In developing its environmental rights-based jurisprudence, the main interpretive instrument of the Court has of course been the assumption that the Convention is not a static instrument but is a text which must be interpreted in light of the present-day conditions.35 When keeping this in mind it becomes evident how the Court has been able to develop environmental rights from the Convention which is otherwise silent on the issue. So much so, that it is now accepted by responding states that ‘the protection of the environment is an increasingly important consideration’36 in the context of human rights instruments. One driver behind this practice is of course that, once the ECtHR has accepted that environmental conditions are relevant in the context of the Convention, it is in practical terms forced to look beyond the Convention itself towards developments in other areas and disciplines of law in order to develop a doctrine. In other words, the Convention does not provide much interpretive guidance when the Court needs to substantiate the legal obligations in the context of a claim touching on environmental conditions. In doing so, the Court is increasingly willing to draw inspiration from, and in some instances rely directly on, other sources of environmental law, including international environmental law and European Union environmental law, as well as domestic legal regimes. Examples of this include the Court relying expressly on the Rio Declaration in response to environmental claims. In Taşkin v Turkey, the Court referred extensively to the Declaration (as well as the right in the Turkish constitution to a healthy environment) when substantiating the Convention’s obligations on public participation in environmental matters and underlining the importance of independent review mechanisms of environmental decision making.37 Similarly, in justifying its interpretation of the Convention to include procedural-type environmental rights, the Court has relied extensively on the Aarhus Convention.38 Elsewhere, when hearing claims raising questions of environmental harms and risks, the ECtHR has found support in other external sources such as European Union (EU) environmental law. Thus in Giacomelli v Italy,39 the Court held that the failure of the domestic authorities to effectively apply national legislation on environmental assessment, giving force to the EU’s directive on environmental impact assessment,40 constituted a violation in the context of the operation of a large waste plant operating in proximity to the applicant’s home. In Tatar v Romania,41 when seeking to apply the precautionary principle in the context of the Convention, the ECtHR found support in the EU Commission’s communication of 2000 on the principle, as well as then-Article 174 of the Treaty of the European Community (TEC; Hatton and others v United Kingdom, (2003) 37 EHRR 28. Ibid, para. 128. 35 Tyrer v United Kingdom, (1978) 2 EHRR 1, 26. 36 Fredin v Sweden, No. 12033/86 (European Court of Human Rights, 1991). 37 Taşkin and others v Turkey (n 29). 38 Ibid; Ivan Atanasov v Bulgaria, case of 2 December 2010 (Application No. 12853/03). 39 Giacomelli v Italy, (2006) 5 EHRR 871. 40 Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment OJ L 175, 5 July 1985, 40–48. 41 Tătar v Romania, decision of 27 January 2009 (Application No. 67021/01). 33 34

Human rights in a changing environment  347 now 191 of the Treaty on the Functioning of the European Union (TFEU)).42 More explicitly, in Di Sarno v Italy,43 relating to the failure of the Italian government to effectively deal with waste in southern Italy, the Court found against the Italian government on the basis of EU law, including the Waste Directive44 and the Landfill Directive,45 as well as primary EU legislation in the form of Article 174 TEC, and decisions by the Court of Justice of the European Union (CJEU). In particular, the ECtHR found support for its findings of non-compliance in the CJEU’s decision holding that the Italian government had failed to meet its obligations under the 2006 Waste Directive, which was delivered two years prior to the ECtHR decision.46 External sources of law become relevant to the ECtHR not only in order to furnish an interpretive basis and argument for accommodating environmental claims, but also in the context of applying specific standards. In a series of cases, the Court has applied standards developed by other international organizations in order to substantiate its environmental jurisprudence. In Fagerskjöld v Sweden, the ECtHR readily applied standards promulgated by the World Health Organization (WHO) on community noise when considering whether the noise from wind turbines constituted a violation of Article 8 ECHR. The Court ultimately found that it did not.47 Moreover, in dismissing the claim of the Italian government that the non-compliance was justified as a result of force majeure, the ECtHR ‘simply reiterate[d] the terms of Article 23 of the Articles of the United Nations International Law Commission on State Responsibility for internationally wrongful acts’, highlighting further the Court’s willingness to look to other legal regimes for inspiration when interpreting the Convention.48 From this it becomes clear that a central force in the ECtHR’s interpretation of environmental claims is the borrowing and application of rules and norms from non-ECHR regimes (be they treaty law, primary and secondary sources of EU law or non-binding international documents).49 In fact, without the application of and reliance on external norms it is arguable that the Court would not have been able to expand the Convention to include environmental rights. The evolution of, in particular, Articles 2 and 8 of the Convention, under certain circumstances, to include environmental claims consequently stands as a central example of the transnational development of environmental rights. Importantly, however, the emergence of environmental rights through the borrowing and reliance on external sources of law is not unique to the European human rights system of the ECHR.50 In its advisory opinion on the extraterritorial application of the environmental rights provisions of the San Salvador Protocol, the Inter-American Court of Human Rights relied extensively on sources from outside the American Convention.51 Strikingly, and much like

Communication from the Commission on the Precautionary Principle, COM/2000/1 final and Art. 174 TEC now found in Art. 191 TFEU. 43 Di Sarno v Italy, decision of 10 January 2012 (Application No. 30765/08), para. 111. 44 Directive 2006/12/EC on waste OJ L 114, 27 April 2006, 9–21. 45 Directive 1999/31/EC on the landfill of waste OJ L 182, 16 July 1999, 1–19. 46 Commission of the European Communities v Italy, Case C135-05. 47 Fagerskjöld v Sweden, decision of 26 February 2008 (Application No. 37664/04). 48 Di Sarno v Italy, para. 111. 49 M. Forowicz, The Reception of International Law in the European Court of Human Rights (Oxford University Press 2010). 50 For a wider discussion see J. Wiener, ‘Something Borrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law’ (2001) 27 Ecology Law Quarterly 1295. 51 Inter-American Court of Human Rights, Advisory Opinion (n 18). 42

348  Research handbook on transnational environmental law the ECtHR, the Inter-American Court found support in the Aarhus Convention. This is even more remarkable than in the case of the ECtHR, considering the specific European scope of the Aarhus Convention.52 The Convention was not, however, the only European source of inspiration utilized by the Inter-American Court, as it also found support in the many cases decided by the ECtHR.53 Again, scrutiny of the case law from the most established human rights tribunals and their engagement with environmental claims reveals a readiness to rely extensively on decisions and sources of law from other legal systems and human rights regimes in the attempt to respond to environmental claims.

4

TRANSNATIONAL CHALLENGES AND LIMITATIONS

One point to consider in light of the transnationalization of environmental rights and norms is whether human rights courts and tribunals are suited for such norm-entrepreneurship around environmental rights. In the case of the ECtHR, this entails shoehorning environmental rights into a legal regime which is deliberately silent on the issue, notwithstanding several attempts by the Council of Europe’s Parliamentary Assembly to adopt a protocol to the Convention on environmental rights.54 On the one hand, the doctrine of interpreting the European Convention in light of present-day conditions is well established and has been applied across a range of issues, including issues which the framers of the Convention had expressly excluded from Convention protection (for example in the context of the Court’s case law on the right not to join a trade union).55 As Letsas argues, the Court has developed Convention rights not just with regard to issues which the framers of the Convention could not reasonably have foreseen (such as the environment), but also to issues which the framers sought to exclude.56 In principle, this extension of Convention protection might well be justified on the moral imperative inherent in human rights doctrines that seek to protect minorities from the prevailing impulses of majority decision makers.57 In the case of environmental claims, however, it might be argued that this need for counter-majoritarian correction is not as strong as it might be elsewhere. Many of the claims before the ECtHR do not argue that the responding state ought to take positive steps to enact and put in place regulatory regimes to protect individuals (though there is a subset of cases in which that line of argument is pursued),58 but instead advance the claim that the responding state has failed to effectively apply existing regimes and rules of environmental law already in place in the responding state. On this reading, the legal landscape of the

52 The Aarhus Convention was moreover relied upon by the ECtHR in the Taşkin and others v Turkey decision, notwithstanding Turkey not being a party to the Convention (the Convention though remains open to signature for non-UNECE parties). 53 Including the ECtHR’s López Ostra decision, the Guerra v Italy decision, the Hatton decision, and the Öneryildiz decision, e.g., in para. 5 of the decision. 54 E.g., see Council of Europe, Parliamentary Assembly, Environment and Human Rights, Doc. 9791, 16 April 2003. 55 Matthews v United Kingdom, decision of 18 February 1999 (Application No. 24833/94). 56 George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Its Legitimacy’ (2012), available at https://​papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​2021836. 57 Ibid. 58 Hardy and Maile v United Kingdom, (2012) 55 EHRR 28.

Human rights in a changing environment  349 responding states arguably already reflects present-day conditions, and recognizes the need for environmental protection. As noted above, however, the central theme in many of the environmental cases before the ECtHR relates to the situation where a government has failed to give effective force to its statutory framework of environmental law. Often, when finding that a responding state has not fully discharged its positive duty under the Convention to minimize environmental risks, the ECHR expressly points out that the state has failed to strike a fair balance between interests of the state in, say, maintaining economically valuable activities which cause environmental harm, and the risks to which these activities expose the individual claimant. In such cases, there is scope to conceptualize the ECtHR’s willingness to include environmental claims under the Convention as fitting within the general impetus to protect individual claimants from counter-majoritarian decisions. A theme that consequently emerges, in many of the cases in which the ECtHR decided to expand the scope of the Convention to include environmental claims, is one akin to traditional ideas of environmental justice. The focus on justice, here, is in support of attempts to redress situations where certain individuals bear a disproportionate burden of environmental harms.59 That is, where the failure of the responding state to effectively apply and implement its own regulatory regime of environmental law gives rise to a situation where a subset of individuals are exposed to a significantly higher level of environmental risk, the ECHR implies a positive duty on the state. This line of reasoning sits well within traditional conceptions of human rights doctrines as having a purpose of providing protection to minorities. Similarly, in the ECHR environmental rights case law, where the majority of the claims before the ECtHR centre on the argument that the responding state has failed to effectively apply domestic environmental law already in place, the Court is not so much acting as a norm-entrepreneur as it is simply enforcing the law.60 From this perspective, the central focus of the environmental claims before the ECtHR is not so much on expanding the reach of the Convention as it is on securing respect for the rule of law through the enforcement of already enacted domestic law.61 The standout example of this rule of law emphasis is the Taşkin decision, where the Court expressly emphasized the important failure of the Turkish government to shut down polluting activities, operating in clear contravention of domestic legal obligations.62 Similarly, in Kyrtatos v Greece the Court expressly pointed out that general environmental harm does not necessarily trigger application of the Convention.63 Where breaches of domestic law are involved, the extension of the reach of human rights obligations to cover environmental issues is not expansionary at all. In fact, the environmental element of a given claim might even be seen as peripheral to the case, since the main argument in many such claims focuses on the fundamental need to respect positively enacted rules in the domestic legal order. It does not necessarily require the Court to develop a new doctrine of law. On this assumption, human rights tribunals act simply as enforcers of the law, providing legal authority where domestic 59 E.g., Jugheli and others v Georgia, decision of 13 July 2017 (Application No. 38342/05); and Fadeyeva (n 28). See also O. Pedersen, ‘Environmental Justice in the UK: Uncertainty, Ambiguity and the Law’ (2011) 31(2) Legal Studies 279. 60 See J. Scott and S. Sturm, ‘Courts as Catalysts: Re-Thinking the Judicial Role in New Governance’ (2007) 13 Columbia Journal of European Law 565, for an enlightening discussion. 61 Pedersen (n 27). 62 Taşkin and others v Turkey, paras 135-138. 63 Kyrtatos v Greece, (2005) 40 EHRR 16.

350  Research handbook on transnational environmental law governments have failed in doing so and the application of environmental claims to established human rights systems is arguably less radical than it might otherwise appear. Against this, one problem associated with the adjudication of environmental claims before human rights tribunals and the transnational response adopted by these tribunals is the readiness with which tribunals draw on external sources of law. A challenge arising from this is coping with the inherent diversity between legal systems when it comes to purpose, design of rules and interpretive doctrines. The meaning, definition and role played by, for example, the precautionary principle, is likely to vary from one legal context to another.64 The conceptualization of the precautionary principle in the TFEU, in the European Commission’s Communication from 2000 and in associated CJEU case law is a reflection of the EU’s legal order with its emphasis on, amongst other things, the creation of a common market which respects a high level of environmental protection. It is also influenced by the particular legislative process through which EU environmental law is adopted.65 By the same token, the definition of the precautionary principle in the Rio Declaration arguably reflects a very different decision-making process and understanding of the role and purpose of, in this case, a non-binding legal instrument adopted by states in international law. Similarly, it does not necessarily follow as a matter of course that the ECtHR ought to assume that decisions by, for example, the CJEU, responding to a particular set of infringement procedures brought by the European Commission following a Member State’s failure to implement the Waste Directive, are instructive when it comes to determining whether a contracting party fulfils its positive obligations under a human rights treaty.66 The same might be said of the reliance by the ECtHR on the findings of the International Law Commission in the Di Sarno decision. While these different decisions and norms are no doubt highly persuasive, the Court’s willingness to so readily apply them in the context of the ECHR arguably overlooks the distinctive nature of the legal systems and legal cultures in which the rules and norms were developed. The point here is not so much that human rights tribunals are an inappropriate forum for the adjudication of environmental claims. Nor is it an attempt to suggest that human rights tribunals ought not to involve themselves with adjudication on issues that raise questions of resource allocation, as environmental law often does. The point is simply that, when entertaining environmental claims, human rights tribunals ought to do so bearing in mind the importance of context. In the field of transnational environmental law scholarship, Fisher has highlighted the need for scholars to be alert to ‘the finer details of legal culture’.67 This proposition arguably applies with equal force to courts and tribunals. This means that, when hearing environmental claims which raise novel questions of law and which invite courts to consider aspects of legal regimes that are external to the system in which the claim is heard, the relevant court ought to be alert to the fact that taking inspiration from and borrowing of legal rules, principles and concepts is done with caution. At the very least, the phenomenon See E. Fisher, ‘Precaution, Precaution Everywhere: Developing a “Common Understanding” of the Precautionary Principle in the European Community’ (2002) 9 Maastricht Journal of European & Competition Law 7; O. Pedersen, ‘From Abundance to Indeterminacy: The Precautionary Principles and Its Two Camps of Custom’ (2014) Transnational Environmental Law 323. 65 For one standout example, see B. Lange, Implementing Pollution Control (Cambridge University Press 2008). 66 See also O. Pedersen in Knox and Pejan (n 4) 86–96. 67 E. Fisher, ‘The Rise of Transnational Environmental Law and the Expertise of Environmental Lawyers’ (2012) Transnational Environmental Law 43, 48. 64

Human rights in a changing environment  351 of judicial borrowing ought to take place with the appreciation that the meaning, purpose and role of a given rule, principle or concept is very likely to vary from context to context. It is not clear that human rights tribunals are presently alert to this.

5 CONCLUSION The successful emergence of environmental human rights as a legal discipline and self-contained doctrine is clearly transnational. The account put forward in this chapter has explained how the emergence of environmental human rights as a concept criss-crosses domestic environmental law, international and regional human rights law and general international law. Often this criss-crossing is, in the absence of express state support, driven by judicial ingenuity and a willingness to take inspiration from a wide range of backgrounds and sources. On the one hand, the emergence of environmental human rights has been hugely successful. It provides individuals facing particularly poor environmental conditions with an additional option of enforcement against their own state and, in the future, perhaps also extraterritorially. Where this is the case, the willingness by human rights tribunals to develop environmental rights doctrines serves an important purpose of delivering environmental justice and the rule of law to individuals. On the other hand, in delivering these important goals, human rights tribunals are arguably somewhat careless in the way in which they so readily develop new doctrines from scratch by importing extrinsic norms and sources into their respective treaty regimes. Notwithstanding these challenges, the intervention by human rights tribunals nevertheless shows that human rights tribunals are remarkably adept at responding to the modern human challenges facing the human rights system, including the urging of claimants to expand the application of human rights into new territories of law.

21. Intersections between climate change and the World Trade Organization Shawkat Alam

1 INTRODUCTION The need to balance economic growth and sustainable development remains a shared goal within the international community. One of the ways to achieve this balance is to promote a green economy, whereby states can continue to pursue economic growth whilst reducing their environmental and social footprint. Providing financial incentives for cleaner energy production, promoting a local green technology industry and introducing a cost for carbon pollution are some of the policy measures that states have implemented to combat climate change. Economies do not operate in isolation in a global marketplace. To remain competitive, states must enable the free flow of goods and services between borders and maintain a system of free trade. The World Trade Organization (WTO), the General Agreement on Trade and Tariffs (GATT) and other multilateral trade agreements including the Subsidies and Counter Measures (SCM), Technical Barriers to Trade (TBT) and Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreements, play a central role in maintaining a system of open international trade to ensure that states do not unjustifiably discriminate between foreign and locally produced goods and services. However, climate change policy and international trade law give rise to novel legal issues: does climate change policy create trade-distorting impacts that undermine the system of open international trade? How have specific climate change measures been treated by the WTO and dispute resolution bodies? Can the WTO distinguish legitimate climate change policies from other policies that unjustifiably restrict trade in foreign goods? Also, a question of great importance, how has the WTO responded to fundamental shifts in the conceptualization of tomorrow’s economy, namely, from trade liberalization to sustainable development? States are increasingly aware that effective climate change action requires policies which address unsustainable economic and trade practices. The push for states to create economically viable, locally produced green energy as part of a sustainable development strategy brings up novel issues for international trade. Section 2 of this chapter will take an introductory look at early climate-related and environmental disputes before the WTO. These disputes, which are primarily concerned with specific product measures, provide important context to how the WTO has interpreted WTO instruments in light of environmental concerns through the application of GATT Article XX(b) and XX(g) exemptions and the case law concerning ‘like products’. Section 3 will explore the shift from specific green product measures to climate change policies that fundamentally alter systematic economic processes. Feed-in tariffs to promote renewable energy, environmental subsidies and carbon taxes will be explored to examine this issue. As this section will highlight, the WTO has continued to traverse a delicate balance between limiting the use and impact of trade-distorting measures contained within climate change 352

Intersections between climate change and the WTO  353 policies on the one hand, whilst demonstrating restraint to ensure states have sufficient policy space to implement domestic climate change strategies on the other hand. Unfortunately, this has resulted in uncertainty in WTO law, as it struggles to deal with entirely new markets brought about by the new green economy. Finally, Section 4 of this chapter will explore different reform strategies that are available to the WTO to clarify the position of international trade law vis-à-vis climate change policy measures. The reform strategies presented in Section 4 will create greater consistency between transnational environmental law and trade, and secure greater certainty for the industry sector so that there is confidence in the existing policy measures to promote green energy, whilst limiting the trade-distorting impacts that may arise from subsidizing domestic green energy producers.

2

THE ‘GREENING’ OF THE WTO AND THE USE OF ARTICLE XX ENVIRONMENTAL EXEMPTIONS IN TRADE POLICY

The relationship between trade and environment, and in particular the relationship between the WTO framework and multilateral environmental agreements (MEAs), was prioritized in the Doha round of negotiations.1 The WTO has defined the linkages between climate change and trade liberalization as comprising three effects: (i) the scale effect; (ii) the composition effect; and (iii) the technique effect.2 The scale effect describes the relationship between liberalization, increased economic activity, and energy use. The composition effect defines the relationship between liberalization and specialization in the production of goods and/or services on the basis of comparative advantage. The technique effect represents the relationship between liberalization and decreased emissions by reason of the increased uptake of climate friendly goods and services. In so far as trade-related measures to mitigate climate change (unilateral or otherwise) will affect export and/or import conditions and competitive dynamics between domestic and foreign industry or goods, they will be subject to the rules and procedures of the WTO. Under the GATT, two core obligations are used to promote free trade amongst its members: GATT Articles I and III. Under Article I, states must treat goods from any other member states in the same way as those from the most favoured nations (the ‘most favoured nation’ obligation), while under Article III, member states may not impose taxes on imported goods greater than those levied on domestic goods (the ‘national treatment’ rule). These non-discrimination principles apply to products that cannot be differentiated from each other, or, ‘like products’. The issue of ‘like products’ is pertinent in climate change policy as products are increasingly differentiated according to their environmental performance. For instance, products that are ‘environmentally friendly’ are increasingly sold to consumers at a premium rate with the

The Doha Development Agenda was a round of negotiations that dealt with 21 trade liberalization topics including trade barriers to environmental goods and services, fisheries and agriculture subsidies and creating the agenda for the WTO Trade and Environment Committee (TEC). An overview of the negotiation round, including its topics, can be found at World Trade Organization, ‘The Doha Declaration Explained’ (WTO 2019), wto​.org/​english/​tratop​_e/​dda​_e/​dohaexplained​_e​.htm. 2 World Trade Organization, ‘The Multilateral Trading System and Climate Change’, www​.wto​ .org/​english/​tratop​_e/​envir​_e/​climate​_change​_e​.pdf, 2–3. 1

354  Research handbook on transnational environmental law promise of a reduced carbon footprint in their process and production methods (PPMs). For compliance with WTO obligations, the real questions are: (a) can states discriminate between ‘green’ products and conventional counterparts as they are not ‘like products’, and (b) if such products are like products, can a state be exempt from the non-discrimination requirement on the basis of the environmental exemptions contained under the GATT? The WTO case law has identified four key criteria to determine the ‘likeness’ of products: (a) the products’ properties, nature and quality, (b) the end uses of the products, (c) consumers’ tastes and preferences, and (d) the tariff classification of the products.3 For this reason, to determine whether a product’s environmental performance in its PPMs has fundamentally altered the likeness of the product, this analysis must be performed on a case-by-case basis. In the case of EC – Asbestos, the Appellate Body overruled the Panel’s decision and determined that the health impacts associated with asbestos distinguish the product from asbestos substitutes.4 In this regard, the Appellate Body took into account a product’s PPMs to determine that it was distinguishable and not a ‘like product’. Conversely, in US – Shrimp, a complaint was made against the United States (US), when it banned shrimp that was not harvested with the use of a turtle excluder device (TED). TEDs are an important innovation to reduce the incidental killing of turtles as a result of by-catch. In this case, although the Panel determined that the US had applied the ban in a discriminatory way, the Panel followed the line drawn earlier in the US – Tuna dispute to hold that the method of harvest does not fundamentally affect the nature of the product. Shrimp caught with a TED was ‘like’ shrimp caught using conventional methods for the purposes of the WTO in evaluating a discriminatory measure. Since they were ‘like products’, the Panel turned to consider whether this discrimination was permitted under Article XX(g), to preserve exhaustible natural resources. Despite the US eventually losing on the ground that it had applied its trade measure with discrimination between other WTO members, the Panel did accept that the legal ban achieved an aim of preserving exhaustible natural resources.5 US – Shrimp thus presented a landmark decision as it demonstrated that the WTO is sensitive to products’ PPMs when evaluating a trade-distorting measure. US – Shrimp further demonstrated the importance of the two non-discrimination exemptions contained under Articles XX(b) and (g) of the GATT. Article XX(b) provides an exemption to the non-discrimination principles in order to implement measures that are necessary for the protection of ‘human, animal or plant life or health’. Conversely, Article XX(g) permits a discriminatory trade measure in order to conserve exhaustible natural resources. These exemptions are premised on the fulfilment of the chapeau of Article XX, namely, that such measures are non-arbitrary, and for Article XX(g), the measure must be primarily aimed at the conservation of exhaustible resources.6

See Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos Containing Products (EC – Asbestos), WT/DS135/AB/R (12 March 2001), para. 101. 4 Ibid. 5 See Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 October 1998). 6 Canada – Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268 (20 November 1987) para. 4.6. 3

Intersections between climate change and the WTO  355 The intersection between climate change law and the Article XX(b) and (g) exemptions was at the heart of the dispute contained in US – Gasoline. In US – Gasoline, domestic producers were required to meet an emissions standard based on a 1990 gasoline standards baseline; however, foreign producers were required to meet a higher statutory threshold.7 The Panel found that this requirement breached the national treatment rule under GATT Article III:4, and although the US Clean Air Act related to an exhaustible natural resource (and thus fell within the scope of the Article XX exemptions), this requirement constituted an unjustifiable discrimination and a disguised restriction on international trade under the chapeau of Article XX. Article XX cases such as US – Gasoline and US – Shrimp established a tone for the WTO to allow states to have sufficient policy space to create climate change policy solutions. However, in doing so, they must take a non-arbitrary measure that is necessary to achieve such aims. The Appellate Body reiterated this in US – Shrimp: What we have decided in this appeal is simply this: although the measure of the United States in dispute in this appeal serves an environmental objective that is recognized as legitimate under paragraph (g) of Article XX of the GATT 1994, this measure has been applied by the United States in a manner which constitutes arbitrary and unjustifiable discrimination between Members of the WTO, contrary to the requirements of the chapeau of Article XX … As we emphasized in United States – Gasoline [adopted 20 May 1996, WT/DS2/AB/R, p. 30], WTO Members are free to adopt their own policies aimed at protecting the environment as long as, in so doing, they fulfil their obligations and respect the rights of other Members under the WTO Agreement.8

This approach has since been reaffirmed in subsequent WTO decisions. Brazil – Retreaded Tyres involved a measure that restricted the importation of retreaded tyres into Brazil except for tyres that were (a) produced in the MERCOSUR trade area or (b) exempt by court injunction. The Appellate Body determined that Article XX(b) measures include measures combating climate change.9 Specifically, the Appellate Body found that measures adopted in order to attenuate global warming and climate change … may manifest themselves only after a certain period of time, … so no matter how small its contribution, the WTO does not second-guess the Member’s chosen level of protection.10

However, the measure was still found to be inconsistent with the GATT as the proposed exemptions provided to MERCOSUR tyres or tyres subject to a court injunction demonstrated an arbitrary and unjustifiable discriminatory approach to trade and were thus inconsistent with the chapeau of GATT Article XX. These cases again demonstrate the balance between trade compliance and measures purporting to combat climate change, and the relative importance of ensuring that proposed Article XX exceptions comply with its chapeau.

7 Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 April 1996). 8 United States – Import Prohibition of Certain Shrimp (n 5) paras 185–6. 9 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/ AB/R (17 December 2007) para. 151. 10 Ibid.

356  Research handbook on transnational environmental law 2.1

Other WTO Agreements Relating to Climate Change

An important aspect of the WTO is the TBT Agreement, which governs technical standards and ensures that such standards are not used to unjustifiably restrict trade. Importantly, the TBT Agreement does provide states with the policy space and regulatory discretion to prescribe technical standards in so far as they are necessary for the protection of human health or safety, animal or plant life or health or the environment, and in so far as such trade-restrictive measures are necessary.11 This necessity test replicates the necessity test from GATT Article XX, in that it analyses whether the trade-restrictive measure is effective in reaching its objective, the importance of meeting its objective and whether it is the least trade-restrictive measure that can be implemented to meet this objective. To date, the WTO has been notified of TBT Agreement breaches in relation to technical standards for energy efficiency and emissions standards. Policies such as fuel efficiency12 and emissions standards in cars13 have been referred to the WTO. One of the most significant cases in this area, albeit a complaint for alleged breaches under GATT Article III:4, was the US – Gasoline case, involving the US Clean Air Act, which stipulated technical requirements for the emission effects of gasoline products. Technical regulations also include packaging, marking or labelling requirements as they apply to the products’ process and production methods.14 However, there is an increasing use of private labels indicating a product’s environmental performance, or marketing the product as environmentally friendly. These voluntary labels, which are not mandated by states, fall outside the jurisdiction of the WTO yet have a significant impact through their influence on consumer choices in the marketplace; a potentially significant trade-distorting effect. Going forward, a slow but progressing trend indicates that such labelling may undermine WTO rules that govern technical requirements whilst playing an increasingly important role in providing information to consumers regarding the climate change impacts of particular products. Whilst the GATT and TBT Agreements have served the WTO admirably in considering measures concerning specific products, the rise of climate change as the pre-eminent environmental issue of the 21st century has brought about fundamental shifts in what a future economy should look like. Sustainable development is becoming an increasingly important consideration in global trade, as evidenced by the mandate and creation of the WTO Trade and Environment Committee (TEC). As the next section will examine, the WTO has struggled to provide clear guidance for international trade law when faced with these questions. Conventional analytical methods, such as comparing products and markets to determine trade discrimination, become ineffective in a new order whereby a green economy, new forms of manufacturing and new markets are quickly opening up to respond to, and profit from, the challenges associated with climate change.

Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995) 1868 UNTS 120, Art. 2.2. 12 See Panel Report, United States – Taxes on Automobiles, WTO Doc No DS31/R (30 September 1994). 13 See Appellate Body Report, United States--Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (20 April 1996). 14 See EC – Asbestos (n 3) para. 67. 11

Intersections between climate change and the WTO  357

3

FROM SPECIFIC MEASURES TO A NEW GREEN ECONOMY: WTO AND CLIMATE CHANGE

With the rise of climate change as the leading environmental issue of the 21st century, there has been a significant shift in attention towards limiting anthropogenic global warming and restraining the levels of carbon dioxide emitted and caused by economic activity. The political will to combat climate change has received renewed impetus through the Paris Agreement with a global consensus being reached to limit global warming to less than 2°C above pre-industrial levels.15 The Intergovernmental Panel on Climate Change (IPCC) has indicated that supporting renewable energy through subsidies is one of the most effective incentives for fostering greenhouse gas (GHG) emissions reductions. The use of subsidies has been identified as an important policy in order for renewable energy to remain competitive against the fossil fuel industry, which already enjoys significant cost advantages with carbon pollution remaining a cost externality.16 The importance of using subsidies to promote renewable energy is reflected by the fact that subsidies, such as feed-in tariffs, have been successfully used in Organisation for Economic Co-operation and Development (OECD) countries.17 In 2012, the renewable energy sector alone was worth US$244 billion, with over US$88 billion being contributed as government subsidies to promote the industry.18 In addition to the importance of such subsidies in promoting renewable energy and the associated environmental and social benefits that accrue, subsidies also play a major role in funding unsustainable fossil fuel practices. In 2015, the same year in which the Paris Agreement was reached, governments paid a combined total of US$373 billion in subsidies to allow fossil fuels to be purchased at a cheaper rate than under market conditions.19 Subsidizing fossil fuels crowds out important funds for a cleaner, renewable energy sector and is an ineffective way to assist the world’s poor who remain vulnerable to the effects of climate change.20 The successful negotiation of the Paris Agreement has, however, played an important role in reducing the level of subsidies offered to the unsustainable fossil fuel industry. Parties to the Paris Agreement have pledged significant reforms to their domestic subsidies for the fossil fuel industry as part of their nationally determined contributions (NDCs).21 This is no easy task and, as highlighted by the World Bank, subsidy reform to move away from fossil fuels towards funding renewable energy as part of Paris Agreement compliance is politically challenging

Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740, Art. 2(1)(a). 16 See D. Coady, I. Parry, L. Sears and B. Shang, How Large Are Global Energy Subsidies? (IMF, WP/15/105, 2015), www​.imf​.org/​external/​pubs/​ft/​wp/​2015/​wp15105​.pdf. 17 P. D. Farah and E. Cima, ‘World Trade Organization, Renewable Energy Subsidies and the Case of Feed-In Tariffs: Time for Reform Toward Sustainable Development?’ (2015) 27 Georgetown International Environmental Law Review 515. 18 International Energy Agency, World Energy Outlook 2012 (IEA 2012), www​.iea​.org/​publications/​ freepublications/​publication/​English​.pdf, 6. 19 OECD, Companion to the Inventory of Support Measures for Fossil Fuels 2018 (OECD 2018), www​.oecd​.org/​environment/​oecd​-companion​-to​-the​-inventory​-of​-support​-measures​-for​-fossil​-fuels​ -2018​-9789264286061​-en​.htm. 20 World Bank, ‘Reforming Fossil Fuel Subsidies for a Cleaner Future’ (21 November 2017), www​ .worldbank​.org/​en/​news/​feature/​2017/​11/​21/​reforming​-fossil​-fuel​-subsidies​-for​-a​-cleaner​-future. 21 Ibid. 15

358  Research handbook on transnational environmental law and largely achieved through price reductions to crude oil prices which allow the removal of subsidized fuel prices to be domestically expedient.22 In addition, the Paris Agreement itself remains subject to considerable criticism when faced with challenges of international trade law compliance. Being an instrument with ‘soft’ obligations, the Paris Agreement lacks the ability to judicially enforce compliance and leaves it up to states to determine their own targets through the system of NDCs. States have utilized the NDCs to impose trade measures which are primarily aimed at combating climate change; approximately 45% of all NDCs contain direct trade measures, with 22% of NDCs containing trade measures specifically targeting GHG mitigation.23 The Paris Agreement emphasizes the intrinsic relationship between climate change and the need for equitable access to sustainable development and poverty eradication. It is thus clear that it allows and encourages renewable energy subsidies as a legitimate policy tool to achieve the goal of the Agreement to achieve sustainable development through climate action. Nevertheless, competition with fossil fuel subsidies, the disguising of protectionist measures and the rising number of WTO disputes in this sector are just some of the challenges that renewable energy programmes face. Following the Paris Agreement negotiations it was recognized that a more systemic approach is needed to address anthropogenic climate change. As such, states have implemented a range of measures to promote a carbon-constrained economy, build the capacity to reduce fossil fuel reliance, and promote a diversity of energy sources in the energy mix. Placing a cost on carbon pollution, promoting renewable energy, modernizing the fixed electrical grid and creating domestic green manufacturing opportunities are but some of the measures that have been employed worldwide to limit climate change and create green domestic economies. Feed-in tariffs are one measure used by states as their centrepiece climate change policy. Generally, feed-in tariffs are part of a policy whereby the state pays a premium price for renewable energy generated by programme participants. Participants may also enjoy a minimum cost to access the grid in order to feed energy back into the grid. Feed-in tariffs present a sound policy solution to regulate supply-side constraints for energy usage, especially for grids that are operating at near capacity and are increasingly used in conjunction with energy demand-side management. Although feed-in tariffs are very effective in diversifying the energy mix and encourage the deployment of alternative power generation, a key issue is determining both the right level of tariffs that should be awarded to renewable energy producers and the criteria that renewable energy producers must comply with in order to obtain the tariffs. Such was the issue at the heart of the Canada – Feed-In Tariffs / Renewable Energy dispute. 3.1

The Ontario FIT and MicroFIT Programme and Non-compliance with WTO Obligations

In Canada – Feed-In Tariffs / Renewable Energy, the Ontario government introduced a feed-in tariff scheme (the FIT and microFIT programmes) on a fixed term contract with minimum cost to access the grid for renewable energy producers. To be eligible, participants were required to produce energy from sources such as onshore wind, solar photovoltaics (PV), bioenergy or Ibid. A. Marcu, Issues for Discussion to Operationalise Article 6 of the Paris Agreement (International Centre for Trade and Sustainable Development 2017). 22 23

Intersections between climate change and the WTO  359 water power. They were required to comply with local content requirements which specified that a certain percentage of renewable energy generation equipment had to be sourced from local equipment manufacturers. The European Union (EU) claimed that the domestic content requirements were inconsistent with GATT Articles III:1, III:4 and IIII:5, as they accorded less favourable treatment for renewable energy generation equipment from foreign manufacturers. The EU also claimed that the measures were inconsistent with Article 2.1 of the Agreement on Trade-Related Investment Measures as they constituted an investment that was in breach of GATT Article III. Japan further argued that the FIT and microFIT programmes constituted a prohibited subsidy under Articles 3.1(b) and 3.2 of the SCM Agreement, as participants were required to use domestically sourced energy generation equipment to be eligible for the benefit. In defending these claims, Canada argued that the FIT and microFIT programmes were permissible under the GATT due to GATT Article III:8(a) allowing states to derogate from the national treatment rule if they are procuring products for ‘governmental purposes and not with a view to commercial resale or use with a view to use in the production of goods for commercial sale’.24 In essence, GATT Article III:8(a) allows states to procure products only from domestic sources if they are discharging ‘public functions’25 and there is a rational relationship between the product that is being procured and the function being discharged.26 After examining the scope of Article III:8(a), the Appellate Body found that the derogation claimed by Canada was not applicable in this case as the product of foreign origin (i.e., foreign renewable energy equipment) was not in a ‘competitive relationship’ with the product being purchased by the state (i.e., energy purchased from the Ontario government). As the trade-restrictive measure was applied with respect to domestic energy producing equipment and not the electricity itself, the trade-restrictive measure was unjustified and could not constitute a procurement under Article III:8(a). The Appellate Body has since reaffirmed the competitive relationship standard used to evaluate Article III:8(a) claims. In India – Solar Cells, the US brought a claim against India’s Jawaharlal Nehru National Solar Mission (NSM) Phase II Programme, which stipulated a minimum domestic content requirement for solar cells and modules.27 In India – Solar Cells, India asserted that an alternative standard should be used to determine whether Article III:8(a) applies, namely, that the Appellate Body should consider the inputs and processes of production that are used to determine whether a state can discriminate in favour of procuring domestic goods. The Appellate Body disagreed with India’s submission, noting: This question arises only after the product subject to discrimination has been found to be like, directly competitive with, or substitutable for – in other words, in a competitive relationship with – the product purchased. In respect of the latter issue, although a consideration of inputs and processes of production may inform the question of whether the product purchased is in a competitive relationship with the product being discriminated against, it does not displace the competitive relationship standard.

GATT, Art. III:8(a). Appellate Body, Canada – Certain Measures Relating to the Feed-In Tariff Program / Canada – Certain Measures Affecting the Renewable Energy Generation Sector, WT/DS412/AB/R and WT/ DS426/AB/R (6 May 2013) paras 5.61–5.63. 26 Ibid, paras 5.61–5.63, 5.68. 27 Appellate Body Report, India – Certain Measures Relating to Solar Cells and Solar Modules, WT/ DS456/AB/R (16 September 2016). 24 25

360  Research handbook on transnational environmental law Under Article III:8(a) of the GATT 1994, the foreign product being discriminated against must necessarily be in a competitive relationship with the product being purchased by way of procurement.28

3.2

The Competitive Relationship Standard and Its Impact on Climate Change Policy

The requirement to demonstrate a competitive relationship to qualify for the Article III:8(a) derogation is profound for policymakers wishing to promote a domestic renewable energy sector. Although the application of a feed-in tariff is a useful policy tool to create demand for renewable energy products more generally, states which take the next step and legally require participants to source renewable energy equipment from local firms may fall foul of WTO requirements. Following Canada – Feed-In Tariffs / Renewable Energy and India – Solar Cells, local firms must compete in the global marketplace but could struggle against established renewable energy manufacturers who enjoy economies of scale.29 It may be necessary for policymakers to pivot their domestic renewable energy sectors to focus on downstream economic activities (namely, trades to install or maintain renewable energy infrastructure) or incremental innovation in order to support a domestic renewable energy sector. In many renewable energy sub-sectors, there is stronger employment growth in operations and maintenance: over three-quarters of hydropower employees are involved in operations and maintenance and over half of all solar PV jobs in the US are involved in the installation segment of the industry.30 In this context, the TRIPS Agreement under the WTO provides an important incentive mechanism for states to encourage innovation in renewable energy technology, including process innovation or the discovery of new installation or maintenance practices. With the TRIPS Agreement providing a systematic approach for patent protection to encourage the dissemination and local adaptation of technology, firms are continually encouraged to find improvements and create patents to establish, keep and maintain their profit margins. The strategy of promoting incremental innovation also allows policymakers in developing countries to enter into the innovation race, rather than rely on the large-scale energy revolutions that are associated with ‘blue-sky’ research. Already, developing countries have historically pushed incremental approaches to technology advances,31 in part due to the limitations to their scientific capacity and the lower entry costs associated with incremental innovation. However, with the slow progression towards ubiquitous renewable energy technology, the challenge will be to adapt such technology to local conditions and to encourage the effective dissemination and diffusion of technology in these countries through transfers.

Ibid, paras 5.24–5.25. There are a limited number of countries undertaking new renewable energy research, with 43% of all research and extension jobs located in China: see International Renewable Energy Agency, Renewable Energy and Jobs: Annual Review 2018 (IRENA 2018) 2. 30 Ibid, 3, 16. 31 D. Puga and D. Trefler, ‘Wake up and Smell the Ginseng: International Trade and the Rise of Incremental Innovation in Low-Wage Countries’ (2010) 91 Journal of Development Economics 64. 28 29

Intersections between climate change and the WTO  361 3.3

The Subsidy Problem – What Now for the WTO and Its Analytical Approach?

Under the WTO and SCM Agreement, states are prohibited from providing subsidies that are contingent on the use of domestic goods over imported goods.32 One of the key questions resulting from the Canada – Feed-In Tariffs / Renewable Energy case is whether Ontario’s feed-in tariffs constituted a subsidy that is prohibited under Article 1 of the SCM Agreement. To establish that a prohibited subsidy has been implemented, it must meet three tests, pursuant to the text of Article 1: it must (a) be a ‘financial contribution’, (b) from a ‘government or any public body’, (c) that confers a ‘benefit’. The WTO’s position on this question has drawn criticism for its lack of clear guidance for future renewable energy subsidy programmes. After establishing that the Ontario’s FIT and microFIT programmes provided a ‘financial contribution’ to domestic energy suppliers, the Appellate Body was split on whether the programmes conferred a ‘benefit’. To confer a benefit, the measure must be ‘provided on terms that are more advantageous than those that would have been available to the recipient on the market’.33 This analysis requires the Appellate Body to compare with a benchmark or relevant market in order to evaluate whether the measure is more advantageous. Here lies the central issue: does the WTO compare against all energy producers (including conventional fossil fuel energy providers), or is there some recognition that the renewable energy sector has special considerations (such as cost structures) meaning that premium energy prices or reduced access costs to the grid do not result in a more advantageous position for renewable energy producers? The majority of Appellate Body members determined the latter, finding that no benefit had accrued to renewable energy suppliers. According to the Appellate Body, supply-side factors suggest that wind power and solar PV producers of electricity cannot compete with other electricity producers because of differences in cost structures and operating costs and characteristics … [therefore the benchmark analysis should not have been conducted] within the competitive wholesale electricity market as a whole, but within competitive markets for wind and solar PV generated electricity, which are created by the government definition of energy supply mix.34

The determination of the Appellate Body in Canada – Feed-In Tariffs / Renewable Energy has received extensive criticism from international trade law scholars. A key criticism is that the Appellate Body worked backwards and attempted to find the minimum content requirement as inconsistent with WTO rules, while finding the FIT and microFIT programmes to be compliant with trade law obligations.35 Whilst some have called this ‘gap filling’ and ‘activist constructions of the concept of benefit’,36 it is clear that the Appellate Body attempted to pursue a delicate compromise by ensuring that states possess sufficient policy space to combat 32 Agreement on Subsidies and Countervailing Measures (adopted 15 April 1994, entered into force 1 January 1995) (SCM Agreement), Art. 3.1(b). 33 Appellate Body, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R (20 August 1999) para. 157. 34 Canada – Certain Measures Relating to the Feed-In Tariff Program (n 25) paras 5.175–5.178. 35 A. Cosbey and P. Mavroidis, ‘A Turquoise Mess: Green Subsidies, Blue Industrial Policy and Renewable Energy: The Case for Redrafting the Subsidies Agreement of the WTO’ (2014) 17 Journal of International Economic Law 11, 31. 36 L. Rubini, ‘What Does the Recent WTO Litigation on Renewable Energy Subsidies Tell Us about Methodology in Legal Analysis’ (2014) 48 Journal of World Trade 895, 917.

362  Research handbook on transnational environmental law climate change and promote green technology, whilst drawing a line on using minimum domestic content requirements that have trade-distorting effects. However, in doing so, the WTO has demonstrated that it will continue to face the question of whether to apply a conventional comparative analysis against emerging markets or those that have no real comparator. Given that climate change encompasses a range of policy and regulatory approaches, each with their own unique market conditions, an obvious comparative market to assess a detriment resulting from a subsidy will remain elusive. 3.4

Carbon Taxes and Other Similar Measures

Another climate change policy strategy is to ‘internalize externalities’ and affix a cost for carbon pollution. There are many different mechanisms through which this is achieved, including a consumption-based carbon tax or ‘cap and trade’ systems. A consumption-based carbon tax presents potential issues for determining WTO compliance. Foreign producers are required to transport their goods to market, and hence have a structural disadvantage over domestic competitors, which arguably represents a direct challenge to the essence of open international trade that is advocated by the WTO. Although a tax measure can be neutral on its face, previous WTO jurisprudence has rejected seemingly neutral taxes for their disproportionate impact on foreign imports. In United States – Automobiles, a surcharge on vehicles priced more than US$30,000 was found to be discriminatory – despite being neutral on its face – given the disproportionate impact on European manufacturers.37 Secondly, a key issue is whether a consumption-based tax could be exempt from WTO rules under Article XX of the GATT. Article XX not only allows discriminatory measures based on the necessary protection of human, animal and plant life and health, but also for the protection of exhaustible natural resources. In US – Gasoline, the Panel determined that clean air is such a resource.38 However, according to MacAusland and Najjar, and Hillman, any reliance on GATT Article XX exemptions to justify a consumption-based carbon tax may need to take into consideration the common but differentiated responsibilities (CBDR) of developing countries.39 Although the GATT does not explicitly reference CBDR, many of the actions to operationalize CBDR can also be applied when implementing special and differentiated treatment (SDT) under Part IV of the GATT, such as the obligations for developed countries to explore all possibilities to implement ‘constructive remedies’ before applying permitted trade measures.40 This presents an important cross-pollination of concepts between the different regimes to the extent that both CBDR and SDT recognize the inequitable levels of development between countries and propose action to ameliorate such inequality. Although both regimes have very different core Appellate Body, United States – Taxes on Automobiles, WT/DS31/R (11 October 1994). Appellate Body, United States – Standards for Reformulated and Conventional Gasoline, WT/ DS2/AB/R (20 April 1996), para. 6.37. 39 C. MacAusland and N. Najjar, ‘The WTO Consistency of Carbon Footprint Taxes’ (2015) 46 Georgetown Journal of International Law 765, 787; see also J. Hillman, ‘Climate Change for Carbon Taxes: Who’s Afraid of the WTO? (German Marshall Fund of the US 2013), www​.gmfus​.org/​archives/​ changing​-climate​-for​-carbon​-taxes​-whos​-afraidof​-the​-wto/​; F. Morosini, ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from WTO Agreements’ (2010) 42 George Washington International Law Review 713. 40 GATT, Art. XXXVII:3. 37 38

Intersections between climate change and the WTO  363 principles of environmental conservation and trade liberalization respectively,41 the imposition of a carbon tax, which fails to consider the development status of LDCs, does at the very least present a missed opportunity for developed countries to achieve adherence to both CBDR and SDT under the umbrella of climate change policy. In addition, the way in which revenue is raised from a consumption-based tax or through a cap and trade system may impact on the assessment of whether the measure relates to the protection of an exhaustible natural resource or is necessary for the protection of human, animal and plant life and health. As Meltzer opined with regard to the EU Aviation Directive,42 which brought all long-haul flights departing and arriving from the EU into its cap and trade system, the way in which the revenue is being spent may provide cogent evidence on whether the measure relates to the protection of an exhaustible resource.43 Extending a cap and trade system to extraterritorial actors, such as the measures imposed under the EU ETS Directive, will also require justification as to why the measure remains necessary if there are viable alternative measures to reduce carbon emissions (such as using a biofuels content requirement) if Article XX(b) applies.44

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CONSOLIDATING TRADE LIBERALIZATION WITH CLIMATE CHANGE LAW? REFORM STRATEGIES FOR STRONGER COHERENCE

For policymakers, the Canada – Feed-in Tariffs / Renewable Energy ruling presents a warning that close attention must be paid to the cumulative impact of domestic laws and policy tools that are used to combat climate change. Should a state implement a cost for carbon, which is absorbed by conventional energy producers, a future settlement body may find that conventional energy producers no longer enjoy the cost structures that make renewable energy distinguishable for benchmarking analysis. According to Kulovesi, future complaints can be expected to take guidance from Canada – Feed-in Tariffs / Renewable Energy. It will be consequently more difficult to blame the absence of a relative or comparative market when determining that a benefit has accrued.45 India – Solar Panels is testimony that this is indeed

41 P. Larbprasertporn, ‘The Interaction between WTO Law and the Principle of Common but Differentiated Responsibilities in the Case of Climate Related Border Tax Adjustments’ (2014) 6 Goettingen Journal of International Law 145, 153 who acknowledges that whilst CBDR and SDT recognize the varying development status between states, SDT must be interpreted in light of the MFN principle. See also T. Honkenon, ‘The Common but Differentiated Responsibility Principle in Multilateral Environmental Agreements’ (2009) 18 Review of European, Comparative & International Environmental Law 89. 42 Directive 2008/101/EC of the European Parliament and the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community. 43 J. Meltzer, ‘Climate Change and Trade – The EU Aviation Directive and the WTO’ (2012) 15 Journal of International Economic Law 111, 141. 44 Ibid, 143. 45 K. Kulovesi, ‘International Trade Disputes on Renewable Energy: Testing Ground for the Mutual Supportiveness of WTO Law and Climate Change Law’ (2014) 23 Review of European Community and International Environmental Law 342, 347.

364  Research handbook on transnational environmental law an indicative trend, as are two more cases currently before the WTO, which concern similar minimum domestic content requirements to stimulate a local green manufacturing sector.46 Nevertheless, these policy choices are based on a critical assumption that any subsidies to local renewable energy producers are contingent on some form of domestic minimum content requirement or other trade-distorting measure. Although such requirements are an ‘easy fix’ to promote a local green technology sector, they invite non-compliance with core WTO obligations. As put by Shadikohdjaev: The most problematic aspect of the Canadian FIT program was the discriminatory local content requirements. Properly designed green subsidies without any import substitution or export promotion elements would be less susceptible to a legal challenge, since complaining parties would bear the additional burden of proving that such subsidies are specific and cause adverse effects. Thus, governments will be on a much safer footing if they do not attach these troublemaking elements to their green subsidies.47

Another possible option is to reform the WTO itself. In relation to subsidies, the SCM Agreement offers no environmental exemptions.48 Even though environmental matters are a legitimate exemption to non-discrimination under GATT Articles XX(b) and (g), Article 8.2(c) of the SCM Agreement – which contains non-actionable subsidies for research and development, and environmental matters – has not been renewed by the SCM Committee. As a result, subsidies pursuing the legitimate aim of promoting green technology with a view to combating climate change may be susceptible to ongoing challenges despite the fact that, generally, such objectives are recognized as a legitimate exemption to non-discrimination if they are deemed necessary and the least trade-restrictive option available. There have been numerous calls to revive Article 8.2(c) of the SCM Agreement to include climate change subsidies, predicated on the introduction of additional measures to restrict the use of permissible subsidies. According to Wu, such measures could include permitting subsidies for renewable energy infrastructure explicitly under Article 8 and a carve-out for feed-in tariff policies.49 However, the latter presents certain problems in instances where feed-in tariff policies are overly generous and, thus, any carve-out will require negotiation of de minimis thresholds.50 Other scholars have also called for the necessity test required under the chapeau of GATT Article XX to be introduced into Article 8 of the SCM Agreement.51 This can be achieved without an entire reform agenda from WTO members. According to Howse, the release of 46 See United States – Certain Measures Relating to the Renewable Energy Sector (DS510) and United States – Certain Measures Relating to the Renewable Energy Sector (DS516). 47 S. Shadikhodjaev, ‘First WTO Judicial Review of Climate Change Subsidies’ (2013) 107 American Journal of International Law 864, 877. 48 Kulovesi (n 45) 348. 49 M. Wu, Re-Examining Green Light Subsidies in the Wake of New Green Industrial Policies (International Centre for Trade and Sustainable Development and World Economic Forum 2015) 10–11, http://​e15initiative​.org/​wp​-content/​uploads/​2015/​07/​E15​_Industrial​-Policy​_Wu​_FINAL​.pdf. 50 Ibid. 51 Cosbey and Mavroidis (n 35); Wu (n 49). See also R. Howse, Climate Mitigation Subsidies and the WTO Legal Framework: A Policy Analysis (International Institute for Sustainable Development 2010); A. Green, ‘Trade Rules and Climate Change Subsidies’ (2006) 5 World Trade Review 377; C. Tran, ‘Using GATT Article XX to Justify Climate Change Measures in Claims under the WTO Agreements’ (2010) 27 Environmental and Planning Law Journal 346.

Intersections between climate change and the WTO  365 an interpretive note confirming that existing GATT Article XX defences can be used for alleged violations could be permitted under the SCM Agreement as it is a lex specialis to the Agreement itself.52 Others, such as Cosbey and Mavroidis, argue further by advocating that subsidies could be permissible when ‘the total costs of support are outweighed by the present discounted value of the benefits derived’.53 In either circumstance, there is recognition that reviving permissible subsidies under the SCM Agreement can provide additional certainty for domestic green technology sectors and secure additional policy space to combat climate change. However, in advocating a revival of green light subsidies for renewable energy and other climate change policy action, the impact that this may have on developing countries must be considered. As the collapse of previous green light subsidies demonstrates, any future reform agenda must include developing countries as partners to address both WTO reform and to combat climate change. Any agenda that recommends SCM Agreement reforms to allow green subsidies must be supported by countermeasures, such as effective technology transfers to developing countries and recognizing common but differentiated responsibilities in carbon taxation measures. For many developing countries, subsidies for renewable energy are the most effective policy tool to achieve access to renewable energy and to promote a mix of energy sources, especially in remote and rural areas.54 Therefore, a balance must be struck between trade liberalization obligations and the right of developing countries to encourage the growth of their domestic industries whilst contributing to reducing carbon emissions and leapfrogging the stages of fossil fuel dependency. Undertaking mutually supportive action lies at the heart of the intersection between international trade and international environmental law. Although the concepts of CBDR and SDT are different and distinct, part of which is due to the fact that environmental conservation and trade liberalization are separate objectives,55 the actions to operationalize CBDR and SDT are interconnected and can be simultaneously achieved through the same umbrella of climate change policy. For this reason, partnering with developing countries and LDCs to build their capacity to create their own green economy, whilst transforming existing practices in advanced economies to a less carbon-intensive future, is the most effective means to ease tensions between legal regimes and allow states to walk in tandem between different, and at times competing, obligations. The emergence of several rapidly industrializing economies (such as China and India) in renewable energy has led to an increasingly globalized supply chain for renewable energy technologies. However, renewable energy technologies are highly specialized and most developed countries hold the patents and resources necessary to produce them. Article 4.4 of the Paris Agreement provides that developed countries ‘should continue taking the lead by undertaking economy-wide absolute emission reduction targets’. This may mean that renewa Howse (n 51). Cosbey and Mavroidis (n 35) 27. 54 United Nations Environment Programme, Energy Subsidies: Lessons Learned in Assessing Their Impact and Designing Policy Reforms (United Nations Foundation 2003). 55 Larbprasertporn (n 41) 153. See also A. Gourgourinis, ‘Common but Differentiated Responsibilities in Transnational Climate Change Governance and the WTO: A Tale of Two “Interconnected Worlds” or a Tale of “Crossing Swords”?’ in P. Delimatsis (ed.), Research Handbook on Climate Change and Trade Law (Edward Elgar 2016) 31–48. 52 53

366  Research handbook on transnational environmental law ble subsidies in developed countries are necessary to meet Article 4.4 requirements, however, it should not come at the cost of developing countries’ ability to participate in the increasingly globalized production chain for renewable energy. Developing countries should continue to enhance their mitigation efforts to move over time towards economy-wide emissions reductions, in consideration of the principle of common but differentiated responsibility. Clearly defining allowable green light subsidies which embrace common but differentiated responsibilities between developed and least developed countries (LDCs) will be vital in the future. Any reforms to subsidies must recognize that the level of subsidies provided must respond to eventual changes in the technological capacity of a country, as their renewable energy sector grows and develops. Any recommendations which promote green light subsidies must be tempered with a mechanism which transitions advanced renewable energy sectors to capacity-building projects for LDCs and to create effective mechanisms for technology transfers. As recognized by Ahmed and Wong, a clear action plan that brings LDCs into consideration remains lacking in trade policy measures that are aimed at combating climate change.56 Finally, the limits to the analytical approach undertaken by the WTO and its mandate for trade liberalization, in an era of sustainable development, call for a re-examination of the scope of its environmental exemptions contained under Article XX(b) and (g) and its level of expertise in evaluating comparative markets. To this extent, there is impetus to Mathews’ recommendation that WTO disputes pertaining to climate law and policy could enlist the United Nations Framework Convention on Climate Change57 to help determine whether certain industrial policies are public goods and could potentially be permitted under the WTO.58 Judging by the WTO Appellate Body’s ruling and the difficulty for the Appellate Body to determine the relevant electricity market benchmark to assess whether a subsidy existed in the Canada – Feed-In Tariffs / Renewable Energy case, there is, at the very least, a need for further cross-institutional collaboration with climate change experts which can usher in a new era for the WTO of more effective climate-related expertise to uncover unjustifiable trade measures.

5 CONCLUSION Since the introduction of the WTO, several important shifts resulting from climate change have fundamentally brought into question the efficacy of the WTO’s analytical approach and its role in adjudicating discriminatory trade practices. Whilst early climate change and environmental trade disputes were primarily concerned with measures concerning specific products, anthropogenic climate change now requires states to take drastic action to change how their economy operates, to internalize externalities and create systemic policy change. Several policy initiatives illustrate this case-in-point. The adoption of feed-in tariffs, green subsidies and carbon taxes demonstrate that climate change law and policy are no longer

56 See K. Ahmed and W. Long, ‘Climate Change and Trade Policy: From Legal Complications to Time Factor’ (2013) 12 Journal of International Trade Law and Policy 258. 57 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 58 J. Mathews, ‘Global Trade and the Promotion of the Cleantech Industry: A Post-Paris Agenda’ (2017) 17 Climate Policy 102.

Intersections between climate change and the WTO  367 restricted to limiting the environmental damage associated with production but also impose preconditions on new industries and sectors that aim to create a carbon-constrained economy. This shift has challenged the WTO in several important ways. As evident in Canada – Feed-In Tariffs / Renewable Energy, the approach of establishing a comparative market to determine whether a subsidy has accrued a benefit is difficult when new green markets are emerging, and participants within these markets do not accord with the conventional rules regarding its cost structures, or even the products that they generate. Other measures such as carbon taxes further illustrate how the scope of Article XX exemptions will be tested going forward. There are many options open for potential reform to secure certainty for both states and industry in order to promote a cleaner economy and combat climate change. Reform of the SCM Agreement and an introduction of the necessity test are some measures that can fulfil this objective. However, the reform recommendations outlined in this chapter further illustrate that undertaking such action can mutually support key concepts that are present in both international trade and international environmental law regimes. Although such concepts are distinct, these reform strategies demonstrate that the actions to operationalize CBDR and SDT are interconnected and can be simultaneously achieved through the same umbrella of climate change policy.

PART VI CONCLUDING REMARKS

22. Concluding remarks Veerle Heyvaert and Leslie-Anne Duvic-Paoli

1 INTRODUCTION As editors of the Research Handbook on Transnational Environmental Law, our first aim in assembling this collection of contemporary scholarship was to showcase the impressive variety and depth of this young and burgeoning research field. The wealth of contributions in this book is, unquestionably, a testament to the authors’ keenness to engage with transnational perspectives in order to approach well-established doctrines and bodies of literature in a new light. In this vein we saw, for example, An Hertogen revisit long-standing assumptions regarding sovereignty and extraterritoriality; Jerneja Penca challenge traditional approaches towards the conceptualization and organization of regulatory instruments; and Aleksandra Čavoški re-examine the meaning of and strategies towards legal compliance in a transnational context. Others deploy a transnational framing in order to explore whether there is a need and scope to recalibrate the relation between environmental law and other disciplines, such as human rights in the case of Ole Pedersen’s work, or international trade law in the chapter by Shawkat Alam. Yet others take lessons from transnational law’s attention to the interactive nature of lawmaking, interpretation and application and from this vantage point explore new patterns of influence and exchange between the laws governing different environmental policy fields, such as climate change and biodiversity law in Jonathan Verschuuren’s contribution, or between different legal actors, such as the members of the judiciary in Geetanjali Ganguly’s study on judicial transnationalization. Indeed, opening oneself up to the transnational dimension of environmental law has heightened the awareness of environmental scholars, including many of the contributors to this Handbook, of the living, breathing communities that transform and are simultaneously changed by environmental law, communities that are much more diverse, heterogeneous and responsive than is suggested by the disembodied terminology of the ‘legislature’, ‘judiciary’ or ‘administration’. In contributions such as Benjamin Richardson’s chapter, this results in law and legal scholarship engaging with new actors and modes of communication which so far have been entirely overlooked in legal scholarship, yet whose relevance becomes immediately obvious once disciplinary blinkers are removed. Thus, every chapter in this Research Handbook makes a valuable and different contribution towards conveying the diversity and wealth of transnational environmental law as a field of research, and each instalment adds to our understanding of transnational environmental law as a process, as a system, and as a field of practice. Yet notwithstanding their distinctiveness, the studies in this Handbook also display a number of widely shared features. In our last remaining pages, we address two which struck us as particularly prominent, namely, the dominance of climate change as a subject in transnational environmental legal studies, and the challenge of reconciling the global and the local in transnational environmental law. Finally, in the closing paragraphs, we return to the question raised in our introductory chapter regarding the locality of transnational environmental law itself, and whether it is more fruitful to think of it as a branch of transnational law, or instead as, primarily, a discipline of environmental law. 369

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THE LEITMOTIF OF CLIMATE CHANGE

Climate change as an environmental challenge is undeniably a dominant theme in the research presented in this Handbook. For one-third of the chapters, climate change law and adjudication are the explicit and central focus of the discussion, and beyond that nearly all contributions draw on at least some cases or examples from the field of climate change law. The importance of climate change as an engine of transnational environmental legal research is hardly surprising. After all, throughout the past two decades, climate change has been the most high-profile, most rapidly developing and most controversial agenda in environmental law and policy writ large. Moreover, climate change law is a field where the need for and value added of transnational framings has been particularly vividly demonstrated. Given the scale and urgency of the challenge, the limitations of international and state law to prevent and respond effectively to environmental problems come into stark relief, propelling a robust demand for additional governance initiatives to pick up the slack and give our societies a fighting chance at staving off global climate catastrophes. As transnational climate change governance flourishes, its impacts on law are bound to multiply. The dominance of climate change as a theme in transnational environmental legal research and scholarship may therefore be inevitable, yet it remains important to ask whether this is problematic for the evolution of transnational environmental law. In our view, the answer to this question should be reasonably reassuring: arguably, the centrality of climate change in transnational environmental legal research is as much a boon as it is a hindrance to its maturing as a discipline. However, it does present certain challenges of which researchers in the field should be aware. Crucially, climate change and transnational environmental law mutually support each other’s visibility and reach as fields of research. Readers coming to the material with a primary interest in climate change law may be exposed to and intrigued by reflections on the transnational characteristics of regimes or judicial exchanges, and vice versa. Moreover, awareness of transnational dimensions in the field of climate change law may invite researchers in areas such as waste or water law to explore whether similar issues are at play, and thus energize research in these fields, as phenomena that were previously considered in isolation – for instance, waste covenants or informal water tribunals – become part of a broader transnational narrative. Arguably, the fact that the star of transnational environmental legal research is, to a degree at least, hitched to the wagon of climate change could put the long-term viability of the discipline at risk. Once interest in climate change wanes, the contributions of transnational environmental law could be sidelined or forgotten. Interest in different environmental law issues does tend to ebb and flow – the regulation of GMOs was a much more popular research subject 15 years ago than it is now, whereas interest in air quality law is significantly stronger now than it was at the turn of the century. However, here the uniqueness of the climate change challenge in terms of its scale and depth does need to be taken into account. Even if we succeed in moving to a zero carbon world by the middle of the century, the legal efforts required to operationalize this goal make it inconceivable that climate change would be relegated to a minor point on global and local environmental policy agendas. If we fail, the global impacts of climate change will sustain an enduring demand for transnational responses, all the more since a failure to stay below a 2°C temperature rise would in any event not obviate the need to mitigate in order to

Concluding remarks  371 stave off an even worse result in future years. For the foreseeable future, climate change law is here to stay. A more plausible adverse consequence of the dominance of climate change in transnational environmental law is that it could, indeed, leave other environmental law fields relatively under-researched, which could conceivably limit the range and resilience of transnational environmental law as a scholarly enterprise. Examining non-climate change-related legal developments from a vantage point of transnational law may yield different lessons, which go unlearnt if the focus is overwhelmingly on climate change. On the other hand, growing awareness of regime interlinkages, such as the interdependence between climate change action and biodiversity protection illustrated by Jonathan Verschuuren in Chapter 11 of this book, does moderate the risk that climate change would entirely eclipse other areas of environmental law and policy and, thereby, narrow transnational environmental law’s field of investigation excessively. In sum, we would not qualify the dominance of climate change as ‘high risk’ on this score, yet in order to maximize the overall health of the discipline we should continue to encourage research across all sectors of environmental law. A final, more critical reflection on the dominance of climate change relates less to its impact on transnational environmental law specifically, but considers the relation between climate change law and environmental law at every scale of governance. Climate change has infused environmental law with a very particular notion of what the purpose is of law and legal reform. This has been expressed, over time, as averting ‘dangerous anthropogenic interference with the climate system’ in the United Nations Framework Convention on Climate Change,1 to remaining within a temperature rise of 2°C at the 2010 Cancún Conference of the Parties,2 to ‘well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C’ in the Paris Agreement.3 Yet environmental law generally, and transnational environmental law as part of the field, should have a richer understanding of its ideal impact; of the normative expectations against which (transnational) environmental law and governance should be assessed. The most plausible alternative yardstick available is sustainable development, but this concept too comes with a set of challenges. It would take us too far to delve into the rich and controversial history of sustainable development as a legal principle, but one of the most persistent critiques levied against the principle is that it is too vague and malleable to give assessors a reliable reading on the environmental quality of legal provisions, administrative decisions or court decisions.4 By comparison, the ‘well below 2°C’ target might prove more conducive to measurement, but it should not represent the sum total of our environmental aspirations.

United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107, Art. 2. 2 UNFCCC Conference of the Parties, Decision 1/CP.16, ‘The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-Term Cooperative Action under the Convention’ FCCC/ CP/2010/7/Add.1 (15 March 2011), para. 4. 3 Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55 ILM 740, Art. 2. 4 See, e.g., J. Dernbach and F. Cheever, ‘Sustainable Development and Its Discontents’ (2015) 4(2) Transnational Environmental Law 247. 1

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BALANCING THE GLOBAL AND THE LOCAL

Many of the contributions in this Research Handbook show the authors grappling with the implications of deploying a transnational framing, which represents environmental law simultaneously as inherently global and deeply localized. Arguably, this deliberate emphasis on the duality of transnational environmental law is, at least to a degree, in response to an undercurrent of concern that, if handled without due care, transnational environmental law easily could become a bulldozer that flattens the walls between international and national environmental law, and that this levelling would be primarily at the expense of the domestic, differentiated and applied dimensions of environmental law. This disquiet resonates in, for example, Ole Pedersen’s misgivings about the apparent ease with which the European Court of Human Rights appropriates international and transnational environmental legal principles and applies them to a human rights context.5 In a different guise, we find this concern reflected in Jerneja Penca’s reminder about the propensity in transnational environmental governance studies to focus on large-scale examples, such as the Forest Stewardship Council and the Marine Stewardship Council, and to neglect the smaller initiatives. It equally echoes in Emily Barritt’s caution that seemingly universal values, such as democracy, transparency and participation, can be expressed quite differently in different regional and cultural contexts. Confronting and mediating the gap between northern and southern perspectives should be a priority of transnational environmental law. Understanding this fissure requires an appreciation of how context might shape global commitments.6

A stronger engagement with context and local differentiation will undoubtedly strengthen the descriptive prowess of transnational environmental legal studies, producing accounts that are deep, richly textured and resonant. Yet as an academic endeavour, transnational environmental legal scholarship does also need to confront the next difficult question and ask to what end its analytical skill set is being honed in this manner. Differently put, what do these rich, textured, multi-scalar investigations teach us, beyond the confirmation that environmental law is rich, textured and multi-scalar? Various, and diverging, answers to this question present themselves. We might take the documentation of persisting differentiation as largely reassuring of the benign nature of environmental law beyond the state since, evidently, it does not extinguish and supplant localized legal praxis. Or we could take it as an implicit trivialization of transnational environmental law; as a confirmation that, ultimately, it has little real impact on law as it is experienced in actual communities by real people. In a very different vein, such

5

6 book.

O. Pedersen, ‘Human Rights in a Changing Environment’, Chapter 20 in this book: Similarly, it does not necessarily follow as a matter of course that the ECtHR ought to assume that decisions by, for example, the CJEU, responding to a particular set of infringement procedures brought by the European Commission following a Member State’s failure to implement the Waste Directive, are instructive when it comes to determining whether a contracting party fulfils its positive obligations under a human rights treaty. The same might be said of the reliance by the ECtHR on the findings of the International Law Commission in the Di Sarno decision. While these different decisions and norms are no doubt highly persuasive, the Court’s willingness to so readily apply them in the context of the ECHR arguably overlooks the distinctive nature of the legal systems and legal cultures in which the rules and norms were developed. E. Barritt, ‘Global Values, Transnational Expression: From Aarhus to Escazú’, Chapter 12 in this

Concluding remarks  373 deep-dive accounts of environmental law across scales of governance could be treated as building blocks for attempts to discern differentiation patterns, so that the process of differentiation itself becomes more knowable and predictable. If transnational environmental regimes have access to reliable information about how law forms and transforms as it filters through governance networks, this might conceivably enable them to plan in order to manage, modulate or, even, override differentiation. The aim of our reflections here is not to advocate one or other particular reaction, but to emphasize the vastly different normative consequences that flow from espousing different perspectives. For example, whereas the first suggested response could arguably support a relaxed attitude about the legitimacy of transnational environmental governance, the third would sharpen legitimacy concerns. Hence, while fully embracing the duality of transnational environmental law, it is important that the scholarly community goes beyond the stage of confirmation and starts talking about consequences.

4

TRANSNATIONAL ENVIRONMENTAL LAW AS ENVIRONMENTAL LAW

We return to the question asked in the introduction to this Handbook of whether transnational environmental law ought to be thought of in the first place as a sub-discipline of transnational law, or a branch of environmental law. In defiance of the academic stereotype, in these final paragraphs we opt to pin our colours firmly to the mast and assert that transnational environmental law is environmental law. Reviewing the many contributions to this Research Handbook, it is our view that, notwithstanding their great diversity, the combined authorship comes across emphatically as a community of environmental lawyers. The most important reason for our resolute qualification of transnational environmental law as, above all, environmental law is encapsulated in the dominant relation between research means and ends in the writings in this Research Handbook and, indeed, most publications in the field of transnational environmental law beyond this book. Authors in this field more often seize upon insights from transnational law in order better to understand environmental legal processes than the other way around. This deeper knowledge in turn tends to be subservient to a, sometimes explicit, sometimes unspoken, aspiration to enhance or maximize law’s ability to respond effectively to environmental threats. Indeed, it is arguably the defining characteristic of our community of environmental legal scholars that, even when we are at our most analytical, our concern about the state of the environment, and our eagerness to exploit a better understanding of law in order to boost its usefulness towards enhanced environmental protection, is right around the corner. We see this mixture of concern, hope and motivation pulsating through transnational environmental legal scholarship as forcefully as it runs through other areas of environmental law. Transnational environmental legal scholarship in this Handbook and beyond also shares a second, highly distinctive preoccupation of environmental law generally. As a discipline, environmental law is uniquely attuned to law’s paradoxes. From the prevention principle in the 1972 Stockholm Declaration, which simultaneously affirms the state’s sovereignty to exploit its natural resources and its duty to avoid causing harm to others, the principle of sustainable development and its instruction to account for economic growth, environmental protection and social justice, all at the same time, to the precautionary principle which permits legal intervention in the absence of conclusive evidence of harm while still insisting on using the best

374  Research handbook on transnational environmental law available evidence, environmental legal reasoning has always been a balancing act seeking to reconcile a clutch of centripetal forces. A comparable concern for how to rationalize and operationalize the AC/DC of environmental law equally comes across in transnational environmental legal scholarship, specifically in its aforementioned preoccupation with bridging the global and the local. In sum, while distinctive in its discourse, its methodologies and its conceptualization of environmental law as a field of practice, transnational environmental law is a core part of environmental law. Moreover, as the contributions in this Handbook unequivocally confirm, it is a strong and thriving dimension which has already increased the potential for environmental legal research to be a force for good in society, and which is bound to increase its impact in years to come.

Index

Aarhus Convention (1998) 14, 92, 136, 137, 139, 175, 198–200, 207–8, 213, 266, 343, 346, 348 Compliance Committee 136, 140, 203, 205 enforcement of 203 Euro-centric 205 Fourth Ministerial Conference of the ‘Environment for Europe’ process 203 Implementation Guide 138 Meeting of the Parties (MOP) 140 objectives of 140 on private norm enforcement 139 action-oriented compliance 116, 120 Actor Network Theory (ANT) 303 administrative law 7, 71 administrative processes and best practices 81–3 aesthetic activism relating to transnational environmental governance 251, 262 counter-aesthetic strategies 248, 264 global 264 aesthetic judgements, philosophy of 251 African Charter of Human and Peoples’ Rights 342–3 African Court of Human and Peoples’ Rights 343 African–Eurasian Migratory Waterbird Agreement 196 Agenda 21 221 Aguinda litigation 320–21, 329, 332 air quality Ambient Air Quality Directives 25 Convention on Long-Range Transboundary Air Pollution (LRTAP) 22–3 Framework for Action on Enhanced Black Carbon and Methane Emission Reductions 26 protection of 22 Alien Tort Statute (ATS) 320 Ambulanz Glöckner case 131 American Convention on Human Rights 342–3 Annan, Kofi 199 Antarctic Treaty 252 Anthropocene 15, 177 Earth system 166 global environmental protection in 165–6 human–environment relations discourse 166 Arctic Council 20, 22–3 Expert Group on Black Carbon and Methane 27 goal to limit black carbon emissions 27

Ministerial Meeting 27 soft law from 26–7 Task Force for Action on Black Carbon and Methane 26 work on climate change 27 Arctic maritime areas 20 Arctic sea ice, loss of 18 Arctic warming 11, 18, 25 Art of Moral Protest, The 261 arts-based activism balancing the global and the local 372–3 ‘counter-aesthetic’ strategies 248, 264 culture jamming see culture jamming environmental aesthetics and 251–4 environmental art and governance 254–8 foundations of 251–4 impact and influence of 261–5 orientation of 248–51 in transnational environmental governance 250 Asian–African Conference 35 Association of Southeast Asian Nations (ASEAN) 88 Chief Justices’ Roundtable on the Environment 304, 306 Australian Corporations Act (2001) 265 autonomous law, transnational 128 Bali Road Map 222 Basic Law for the Federal Republic of Germany 161 benefit-sharing 48, 50, 52, 57–61 BENELEX project 55–6 benefit-sharing 58–60 collaborative research 63–5 comparative legal methods 50–52 complexities of transnational environmental law 48–50 empirical legal research 52–6 interdisciplinary research 56–61 research ethics and funding 61–3 Bern Convention on the Conservation of European Wildlife and Natural Habitats 182 Bhopal disaster 76, 263 Billboard Liberation Front 259 bio-based innovation 50 biodiversity connectedness of the habitat 181–4 conservation of 181, 184 assisted relocation of species 192–3 ex situ 193–4

375

376  Research handbook on transnational environmental law land-use management and agricultural practices 188–90 legal measures for 180–94 LULUCF Regulation for 186 objective of contributing to 187 reforestation and forest management for 184–7 through restoration and connectivity 181–4 wetlands, coastal and marine zones 190–92 decline of 178, 179 ex situ conservation of species 193–4 genetic resources and genetic modification 193–4 impact on climate change 179–80 law on 14, 178, 180 loss of 291, 309 restoration of 181–4 towards further regime linkages 195–7 bio-energy with carbon capture and storage (BECCS) 187 biological corridors, development of 182 biomass, combustion of 23 Birds and Habitats Directives (EU) 181, 183, 191 black carbon emissions 11 in the Arctic 19–22 in China 21 as driver of climate change 18 impact on global warming 19 in India 21 mitigation of agenda for 23 to reduce Arctic warming 18 transnational collaboration on 27 transnational legal orders for 30–31 multilateral environmental agreements on Gothenburg Protocol 22–3 Paris Agreement on Climate Change 24–5 outside Arctic countries 21 regulation of case for 19–20 global framework for 18, 30 informal influence of CCAC on 27–9 multilateral environmental agreements for 22–5 soft law from the Arctic Council for 26–7 transboundary 22 transnational environmental law (TEL) for 20–22 transnational law from the EU for 25–6 scientific and legal perspectives of 19–22 warming effects in the Arctic 21 black-letter law 53 ‘blue-sky’ research 360

Bonn Convention on Migratory Species (1979) 171 Brasilia Declaration of Judges on Water Justice 307–8, 317 Brundtland Commission Report 40 Brussels Effect 270–71, 275, 277 Burtynsky, Edward 249 C40 Cities Climate Leadership Group 81 California effect 236 Canada – Feed-In Tariffs / Renewable Energy dispute 358, 360–61, 363, 366–7 Cancún Conference of the Parties (2010) 371 canon law 4 capacity-building programmes 111 ‘cap and trade’ systems 362 carbon accounting and offsetting 289 certification schemes for 289 Gold Standard 289 Plan Vivo 289 Verified Carbon Standard (VCS) 289 carbon-constrained economy 358 carbon dioxide (CO2) emissions 18, 24, 187, 234, 294, 357, 365 Carbon Disclosure Project (CDP) 78, 218, 238 carbon footprint 354 ‘carbon major’ entities 234 Carbon Neutral Protocol 238 carbon offsets 262–3 Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) 278 carbon pollution 29, 352, 357–8, 362 carbon pricing mechanisms 189 carbon-rich ecosystems 184 carbon sequestration 184, 188 definition 187 in developing countries 185 on farm land 184 forest management for 187 soil 188–9 carbon sinks 186 for atmospheric carbon 188 measures to enhance 180–94 biodiversity law and 180 carbon storage per unit area 184 carbon taxes 352, 362–3 consumption-based 362 Caring for Climate (C4C) initiative 238 causation, definition of 243 certified emission reductions (CERs) 289 chemical fertilizers and pesticides, use of 189 Chevron–Ecuador litigation 318 Aguinda litigation 320–21, 329, 332 arbitration panel’s rulings in favour of Chevron 332

Index  377 Chevron’s investor–state dispute arbitration claim against Ecuador 331–2 difficulty of enforcing foreign judgments against parent companies 338 Ecuadorian judgment in other countries 330–31 Exxon Valdez oil spill (1989) 319 forum non conveniens, doctrine of 320–21, 323, 329 history of 319–32 holding large corporations legally accountable 333–4 international investor–state arbitration 337 invoking of forum non conveniens to seek dismissal of cases 334–5 Jota litigation 321 judgment against Chevron 323–7 Kiobel decision 336 Lago Agrio judgment 332 lawsuit by the Ecuadorian plaintiffs 320–23 lessons from 333–8 refiling of lawsuit in Ecuador 323–7 RICO lawsuit 327–30, 331, 338 Texaco’s oil development operations in Ecuador 319–20 Trans-Ecuadorian Pipeline 319–20 transnational litigation 336–7 US–Ecuador bilateral investment treaty and 332 City of Los Angeles v National Highway Transportation Safety Administration 225 civic activism 261 civil ‘constitutions’, emergence of 167 civil disobedience 248 civil society organizations 98, 205 civil society, transnational 128 Clean Air Act (US) 225, 311, 355–6 clean development mechanism (CDM) 78, 184, 288 forestry-related projects under 186 ClientEarth 136, 140 ClientEarth v Secretary of State (UK) 313 Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (CCAC) 21, 23, 27–9 hybrid and voluntary structures of 22 climate change 178, 216, 229 adjudication of 302, 310, 313, 316–17 biodiversity-related adaptation policies 183 corporate contributions to 233–4 drivers of 18 governance of 78 impacts on biodiversity 179–80 judicial consciousness about 315 Kyoto Protocol (1997) 24, 116–19, 174, 183 leitmotif of 370–71

link with trade liberalization 353, 363–6 mitigation and adaptation 14, 189 mitigation goals of 20 Paris Agreement see Paris Agreement on Climate Change (2015) as a theme in transnational environmental legal research 370 transnational law on see transnational climate change law and World Trade Organization (WTO) 356, 357–63 climate clubs 289 climate engineering 187 climate finance 289, 297 climate governance, nature of 217 climate litigation 224–6 definition of 242 coastal ecosystems, restoration of 180 coastal zone management 191 codes of conduct 76, 80, 86, 91, 98–9, 236–8, 286 Codex Alimentarius Commission 80, 85 Commission of Human Rights 240 commodity supply chains 91 common but differentiated responsibilities (CBDR) 17, 288, 296, 362, 365–6 common concern, notion of 280 common pool resources 236 Compact of Mayors 222–4 compliance action-oriented concept of 111 definition of 109 Conformité Européenne (CE) 74 connectedness of the habitat 181–4 connectivity conservation, under international climate law 183 constitutional environmental duties 162 consumer democracy 71 consumer welfare, enhancement of 130 consumption-based tax 362–3 Convention of International Trade in Endangered Species of Flora and Fauna 250 Convention on Biological Diversity (CBD, 1992) 55, 171, 182, 185, 250 Cartagena Protocol on Biosafety 194 involvement with REDD+ 185 Convention on Migratory Species (CMS, 1979) 171, 182 Cooperative Chemicals Assessment Programme (CoCAP) 80, 85 High Production Volume Initiative 80 cooperative sovereignty, ideas of 277 ‘corporate’ climate litigation 241–5 CHR investigation 242–5 role in climate governance 241–2 corporate environmental

378  Research handbook on transnational environmental law malfeasance 248 management 77 corporate marketing 259, 261 corporate social responsibility (CSR) 35, 76, 128, 152, 234 European Commission agenda on 129 proponents of 129 regulatory techniques 129 Council of Europe 272 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 174 Parliamentary Assembly 348 Countryside and Rights of Way Act (2000), UK 250 Court of Justice of the EU (CJEU) 111, 131, 175, 183, 208, 272, 279, 347, 350 judgments in Djurgården 137 Dusseldorp 134 Fra.bo 134–5 Plaumann 137 Slovak Brown Bear 139 Sydhavnens 134 courts, jurisdiction over environmental governance challenges for 127–9 creation of norms for 129–35 as facilitators of transnational environmental litigation 309–16 institutional and constitutional framework of 126 legitimacy of 126 on private enforcement of environmental law 135–41 role and function of 126 TEL’s effect on 127 transnational diffusion of legal sources 141–3 Covenant of Mayors 222–3 COVID-19 pandemic 164 criminal law 7 cropping systems 188 cross-border networks 15, 79, 80, 220 of cities 285 Crude (documentary film) 324 cultural diversity 69 culturally focused cognitive legitimacy 151 cultural sabotage 248, 258 culture jamming 257, 263 in cyberspace 261 as form of social activism 258 impact and influence of 251 phenomenon of 248, 250 and transnational environmental activism 258–61 customary commercial law 4

David Kettle Consulting Pty Ltd v Gosford City Council 309 decision-making processes 55, 91, 201 non-hierarchical mode 75 technocratic 341 deforestation commodity-driven 297 rate of 185–6 deforested lands, restoration of 184 degraded habitats, restoration of 182 democracy, concept of 201 Di Sarno v Italy 347 disaster management 225 ‘discobedience’ protest 257 Dombrovskis, Peter 257 due diligence 240–41, 281–2, 343 Dutch Energy Agreement for the Promotion of Sustainable Growth 134 ‘Earth Art’ festival 254–5 Earth Charter 172 Earth Day 39 Earth First 259 Earth system governance, phenomenon of 166 Earth system law 166 Ecodesign Directive 2009/125/EC 84 eco-design management 121 eco-labels 78, 129 ecological-engineering 190 Eco-Management and Audit Scheme (EMAS) 121 Economic Commission for Europe (ECE) 23 Sofia Guidelines 203 ecosystem cross-biome leakage and encroachment 180 Great Eastern Ranges corridor (Australia) 181 human intervention in 180 restoration of 179, 180 Ecosystem Services for Poverty Alleviation (ESPA) Programme 57 effectiveness, concept of 110 emancipatory environmental politics 198 emissions trading scheme (ETS) 272, 288–9, 299 empirical legal research 12, 52–6, 63 energy efficiency 91, 356 energy supply mix, definition of 361 enforcement concept of 111–16 definition of 110 of EU law 111–16 of foreign judgments 338 English, Ron 260 Guernica (1937) 260 Enlightenment humanism 37 environmental activism culture jamming and 258–61

Index  379 in Japan 40 transnational 255 environmental adjudication 126 environmental aesthetics, theory of 15, 250–51, 253 environmental compliance assurance, concept of 113–14, 116 environmental conflicts 40, 97, 245 environmental constitutionalism cultural and educational role 163 domestic character 159 emergence of 159 for environmental protection 163 global constitutional order 167 for maintaining the quality of the environment 162 manifestations of 168–77 comparative environmental constitutionalism 175–7 global civil society constitutionalism 172–3 global environmental constitution 169–70 post-state constitutional law and governance regimes 170–72 regional environmental constitutionalism 173–5 notion of 159, 160–64 principles and values of 167 regional and international ‘constitutional’ provisions 159 for societal environmental care 163 for socio-ecological justice 159 transnationalization of 159 global constitutionalism 166–8 global environmental protection 165–6 globalization 164–5 environmental degradation 34, 166, 253 environmental democracy 129, 200, 214 environmental ethics 37–8, 172 environmental history 40 environmental human rights 17, 159, 172, 176, 207, 210, 340–43, 345, 351 environmental integration, goals of 129 environmental justice 41, 139, 300 Environmental Justice Atlas 232, 245 environmental justifications 133 environmental labelling 121 environmental law 7, 78 compliance mechanisms 104 as action-oriented concept 108–11, 113 Compliance Assurance Action Plan (2018) 113 good practice guidance 114 national environmental compliance assurance systems 114

under Paris Agreement 116 regulation and 105–8 strategies of 105–8 technical guidelines 114 concept of 39 connection with transnational law 8 enforcement of 109, 111 courts and 135–41 by transnational civil society groups 128 financial penalties non-compliance 111 implementation of 104, 112 under TFEU 111 judicial networking initiatives on 301 judicial networks on 303–6 for landscape management 249–50 LIFE mechanism 113 management theory of 109 non-compliance causes of 108 by EU Member States 112 identification of 114 measures to address 112 procedures in international climate change law against 116–20 origins of 7, 36 principle of in dubio pro aqua 309 in dubio pro natura 308 private and public governance systems 107 regulation and compliance strategies 105–8 role of non-state actors in improving compliance of 108 transboundary influence of 9 transformative impacts of 107 transnational dimension of 8 transnationalization of 303 violations of under Article 258 TFEU 114 imposition of sanctions for 114 environmental lawmaking 15, 39 Environmental Law Network International 79 environmental management 123 ISO 14001 for 130 standards for 121 eco-management 130 voluntary 129 environmental movement 36, 39 environmental pollution 231 due to US invasion of Iraq 260 Valdez oil spill (1989) 259 environmental protection 77, 111, 160, 162 anti-competitive behaviour 132 extending ‘territoriality’ for 278–81 globalization of 168

380  Research handbook on transnational environmental law impact of trade liberalization agreements on 272–6 judicially generated soft law on 306–8 multilateral responses to 277–8 objectives of 8, 133 obligations in the exercise of sovereignty 281–2 reconciling the tension 277–82 requirements of 132 territorial jurisdiction 275 unilateral state regulation for 269–71 environmental quality 15, 40, 160, 211, 371 environmental regulation command-and-control approach to 110 public/private divide in 135 state-based 18 environmental rights, African concept of 35 environmental services 131 environmental standards 76–7, 121, 123–4 application and enforcement of 81 ISO work on 120 transnationalization of 17 environmental stewardship, principle of 308 environmental subsidies 352 environmental treaties 91, 104, 111, 250, 252, 277, 285 environmental values 14, 33, 202, 250, 251 environment, concept of 37 epistemic communities 80, 168 Equator principles 91 Escazú Agreement 14, 199–200, 204, 207, 213–14, 344 variation on a theme 207–10 ethics in research projects 61–3 ethnic differences 69 EU law 279, 347 breaches of 114 Comitology Procedure 75 concept of 4 constitutional principles of 140 enforcement of 111–16 infringement procedure in TFEU 111–12 EU Member States 25–6, 73, 75, 77, 82, 111–16, 121, 131, 133–5, 171, 174, 183, 189 EU Pilot 114–15 EU REACH Regulation 95 European Commission 71, 73, 104, 135, 174 Article 101(3) TFEU Guidelines 132 Compliance Assurance Action Plan (2018) 113 CSR ‘agenda’ 129 Early Warning Report for EU waste legislation 115 European Convention on Human Rights (ECHR) 342 environmental rights case law 349

European Council 73 European Court of Human Rights (ECtHR) 175, 208, 342, 343, 345, 347–8, 372 Di Sarno decision 350 interpretation of environmental claims 347 European Economic Area (EEA) 82 European Environment Agency 114, 121 European Environmental Law Forum 79 European Forum of Judges for the Environment 86, 141 European Free Trade Area (EFTA) 82 European Landscape Convention 252 European Parliament 73, 114, 272 European Union (EU) 167, 270, 285, 346, 359 biodiversity strategy 187 Birds and Habitats Directives 191 Charter of Fundamental Rights 174 Common Agriculture Policy (CAP) 189 competition law 130 Eco-Management and Audit Scheme (EMAS) 121 Eco-Regulation 73 Emissions Trading Scheme (ETS) 272 environmental obligations 174 environmental policy goals 135 Flood Risk Management Plans 191 Forest Law Enforcement, Governance and Trade (FLEGT) licensing system 187 Forest Strategy 187 Habitats Directive 193 Invasive Alien Species Regulation 193 land use, land-use change, and forestry (LULUCF) Regulation 186, 189 Marine Strategy Framework Directive 192 Regulation on passenger car emissions 129 Timber Regulation 187 Water Framework Directive 191 Wild Birds and Habitats Directives 181, 183 European Union Forum of Judges for the Environment (EUFJE) Network 6, 304 European Union law see EU law European Wildlife Convention 192 Exclusive Economic Zones 20 expert commissions 73, 78–80, 87, 327 ex situ conservation of species 193–4 Extinction Rebellion (XR) movement 248, 256–7 Extractive Industries Transparency Initiative (EITI) 237, 239 extreme carbon inequality 42 Exxon Valdez oil spill (1989) 259, 319 Fagerskjöld v Sweden 347 feed-in tariffs (FIT) 352, 357–8 application of 360

Index  381 Canada – Feed-In Tariffs / Renewable Energy dispute 358, 360–61, 363, 366 Canadian FIT program 364 de minimis thresholds 364 fine particulate matter 18, 20, 23 fisheries certification 99–100 management of 100, 309 regulatory instruments 99–100 significance of 100 flexibility in TEL 284–300 assessment of 293–9 concept of 284, 285–6 for customizing treaty obligations 285 design of 286 lawmaking for jurisdictional REDD+ 293–6 manifestations of 286–9 for multilevel environmental governance 285 potential and pitfalls of 290–93 role in transnational legal process for REDD+ 296–9 ‘Flood Wall Street’ protest (2014) 259–60 Food and Agriculture Organization (FAO) 80, 100, 184 Committee on Fisheries 100 food production 178, 194 force majeure 118, 347 foreign direct investment 231, 234 Forest Carbon Partnership Facility (FCPF) 294 forest carbon stocks conservation of 295 enhancement of 185, 295 forest conservation 186 Forest Law Enforcement, Governance and Trade (FLEGT) licensing system 187 forest management 180, 183, 184–7 for carbon sequestration 187 and terrestrial climate engineering 187 forest reference emissions 295 Forest Stewardship Council (FSC) 78, 185, 236, 372 forum non conveniens, doctrine of 320–21, 323, 329, 334–5 fossil fuel industry 357 fossil fuels 230 combustion of 23 elimination of 256 subsidies 25, 357 freedoms of expression 266 Friends of the Earth v Governor in Council et al. 313 fuel efficiency 356 gene banks 194 gene pools, of forest trees 194

General Agreement on Trade and Tariffs (GATT) 85, 273, 280, 352–3, 355, 359 Article XI of 273–4 Article XX of 275–6, 280, 355, 362, 364–5, 367 most-favoured-nation obligation 273 non-discrimination principles 354 special and differentiated treatment (SDT) 362 Working Party on Border Tax Adjustments 274 genetic resources and genetic modification 193–4 German National Socialist constitution 161 Giacomelli v Italy 346 global circulation models (GCMs) 310 global civil society activism 168 constitutionalism 167–8, 172–3 manifestations of 168 Global Climate Action Summit (2018) 218 global climate governance 95, 244 Global Compact 74, 237–8 global constitutionalism 159, 164, 166–8, 171, 177 global corporate initiative 238 Global Covenant of Mayors for Climate and Energy 222 global environmental constitution manifestations of 168 rights and jus cogens norms 169–70 global environmental crises 2 global environmental governance 15, 169, 171–3, 254 global environmental protection, in the Anthropocene 165–6, 168, 172 Global Environment Facility 195, 299 global epistemic networks 172 global governance gap 230–31, 245 global greenhouse gas (GHG) emission pathways 19 global information commons 302, 310, 313 globalization, processes of 164–5 Global Judicial Institute on the Environment (GJIE) 304, 306–7, 317 Global Judicial Symposium on Sustainable Development (2002) 305 global lawmaking, histories of 36 Globally Harmonized System (GHS) 80 Global Methane Initiative 23 Global North 35–6, 244 resource exploitation by 231 water crises in 308 Global Pact for the Environment (2017) 170, 307 Global Protocol for Community-Scale Greenhouse Gas Emission Inventories (GPC) 224 Global Reporting Initiative (GRI) 238 Global South 231–4, 237, 244, 306, 316

382  Research handbook on transnational environmental law environmental concerns of 40 environment and human rights nexus in 231 equality of citizens in 231 foreign direct investment in 234 forested countries of 41 water crises in 308 global value chains 35, 236 global values, of environmental law 200–203 global warming 19, 24, 41, 45, 180, 233, 255, 355, 357 mitigation of black carbon to reduce 20 Gothenburg Protocol (1999) 20, 22–3, 30–31 government agencies, networks of 80, 87, 320 Grand Banks cod fishery 78 Great Eastern Ranges corridor (Australia) 181 Green Climate Fund 184, 195, 299 forestry-related projects under 186 Project List 189 green economy 353, 357–63, 365 greenhouse gas (GHG) emissions 49, 180, 216–17, 219, 223, 232, 234, 238, 249, 311, 357 in China 7 Global Protocol for Community-Scale Greenhouse Gas Emission Inventories (GPC) 224 from global value chains 236 reduction of 224 cap-and-trade programmes for 289 Greenhouse Gas Protocol for Cities 221 Greenland Ice Sheet 18 Greenpeace 72, 242, 255, 259–60, 263, 314 green ports 82 green subsidies 364–6 green technology 289, 352, 362, 364–5 groundwater, extraction of 309 Guernica (1937) 260 Habitats Directive (EU) 139, 181, 183, 191, 193 Hatton v United Kingdom 346 hazardous waste, cross-border movement of 216 haze pollution, strategies to prevent and mitigate 88 higher education 68 High Production Volume Initiative 80 human inequality 40 human rights abuse of 232–3 African Charter of Human and Peoples’ Rights 342 American Convention on Human Rights 342 from discourse to adjudication 345–8 emergence of 341 and environmental law 340 European human rights system 342 Independent Expert and Special Rapporteurs on 341

Inter-American Court of Human Rights 343 Stockholm Declaration 170, 342, 373 transnational challenges and limitations 348–51 transnational environmental human rights 340–45 tribunals and courts 341 UN Human Rights Council 341 Human Rights Council 232, 240, 247, 337, 341 hydropower projects 184 Icelandic Planning Committee 258 image politics 261 Implementation and Enforcement of Environmental Law (IMPEL) 82 in dubio pro aqua, principle of 308–9 in dubio pro natura, principle of 307–9 institutionalized administrative transboundary networks 71 intellectual property 209, 250, 261, 266 Inter-American Commission on Human Rights 207 Inter-American Court of Human Rights 207–8, 343, 347 interconnected protected areas, networks of 182 Interdisciplinary Committee on Problems of the Environment 79 interdisciplinary communication 6 interdisciplinary research 56–61, 63 interest-based pragmatic legitimacy 151, 152 Intergovernmental Panel on Climate Change (IPCC) 19, 24, 72, 79, 119, 233, 255, 357 Fifth Assessment Report 312 judicial certification of 302, 310–14 Special Report ‘Global Warming of 1.5°C’ (2018) 178, 179 Subsidiary Body for Scientific and Technological Advice 119 Working Group 310 Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES) 79, 179, 313 International Bill of Rights 169–70, 176 International Centre for Settlement of Investment Disputes (ICSID) 75, 83 International Chamber of Commerce 240 Business Charter on Sustainable Development of 77 International Civil Aviation Organization (ICAO) 278 Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) 278 international climate and biodiversity emergencies 128 international climate change law 184, 216 non-compliance procedures in 116–20 International Council for Science 79

Index  383 International Council of Chemical Associations Responsible Care (RC) initiative 76 International Court of Justice (ICJ) 91, 343 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) 169 international environmental law in Global North 35 North–South power dynamics of 200 principles of 14, 170 International Federation of Organic Agriculture Movements (IFOAM) 73 International Labour Organization (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises 237 International Law Commission 347, 350 international law, legitimacy of 167 International Organization for Standardization (ISO) 77, 91, 104, 105, 120 ISO 14000 91, 121 ISO 14001 77, 121–3, 130 standards for climate change-related 121 data protection 120 eco-design management 121 environmental labelling 121 environmental management 121 product- and process-related 120 voluntary-based standards 124 work on development of standards 120 international regulatory regimes 104 International Rights of Nature Tribunal 173 International Union for Conservation of Nature (IUCN) 72 World Environmental Law Congress 306 intra-company sustainability initiatives 236 Invasive Alien Species Regulation (EU) 193 Irish domestic waste collection system 131 Jarndyce v Jarndyce 333 Jasper, James 261 Jawaharlal Nehru National Solar Mission (NSM) Phase II Programme 359 Jessup, Philip 42, 70–71, 127 Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) 79 Joint Liaison Group (JLG) 195 Jota litigation 321 judicial certification, of IPCC assessments 302, 310–14 judicial globalization 301 judicialization of politics 43 judicial networks, on environmental law 16, 301, 303–6

judicial reasoning 42 judicial transnationalization 16, 301–17, 304, 369 on environmental protection 302 phenomenon of 317 soft law 301 juridical environmental protection 159–60 globalization of 165 jus cogens obligations 167, 169–70 Katowice Rulebook 25 Kimberley Process Diamond Certification Scheme 237 knowledge production 51, 303, 304 knowledge sharing 16, 307 on transboundary environmental problems 317 Kyoto Now 254–5 Kyoto Protocol (1997) 24, 116–19, 174, 183, 216, 255, 287–8 Kyrtatos v Greece 349 ‘Land Art’ movement 254 Land Degradation Neutrality Fund (LDN Fund) 190, 196 Landfill Directive 347 landscape management, environmental legislation for 249 land use, land-use change, and forestry (LULUCF) Regulation 186, 189 land-use management 180 and agricultural practices 188–90 carbon and biodiversity friendly 189 soils and soil biodiversity 188 land-use planning 250 least developed countries (LDCs) 366 capacity-building projects for 366 legal anthropology 54 legal methods, in TEL 50–52 legal orders, transnational 18 legal pluralism 2–3, 19, 54–5, 68, 70 legal scholarship 4, 8, 11, 19, 40, 43, 50–53, 64, 152, 227, 250, 301, 303, 369, 372–4 legal transfer, of environmental law 43 legal transplants, theory of 43 Leghari v Federation of Pakistan 43, 314 legitimacy definition of 151 sources of 152 types of 151, 152 Lex Anthropocenae 170 lex mercatoria 4, 70–71 lex situs 69 liberal legalism 34 Lima Vision 206 Live Earth 2007 262, 264 Lliuya v RWE 311, 315

384  Research handbook on transnational environmental law Local Government Climate Roadmap 222 Local Governments for Sustainability Initiative (ICLEI) 81, 222–3 locus standi, doctrines of 128, 136–8, 140–41 Long-Range Transboundary Air Pollution (LRTAP) 22 Convention on 22 Gothenburg Protocol to 22–3 longue durée 35, 39 low-carbon economy 292 Madrid Protocol on Environmental Protection 252 marine protected areas 191 Marine Stewardship Council (MSC) 78, 99, 236, 372 Marine Strategy Framework Directive (EU) 192 market mechanisms, notion of 93 Massachusetts v Environmental Protection Agency (EPA) 225, 310, 313 measurement, reporting and verification (MRV) 222 methane 18 Minamata Convention on Mercury 92 Morning Mist. Rock Island Bend, Franklin River (1982) 257 most favoured nation 273, 353 Moylan, Jonathan 263 multilateral environmental agreements (MEAs) 20, 91, 116, 160, 290, 343, 353 National Adaptation Plans (NAP) 183, 194 sustainable forestry in 186 National Aeronautics and Space Administration (NASA) 310 National Environmental Policy Act (US) 225–6, 344 nationally determined contributions (NDCs) 22, 24, 117–18, 184, 186, 217, 288, 312, 357 by Mexico 29 by Nigeria 29 National Oceanic and Atmospheric Administration (NOAA) 310 National Socialism 161 natural resources conservation of 225 sustainable use of 78, 187 networked constitutionalism 142 networked deliberative forum 75 New South Wales (NSW), Australia Land and Environment Court (LEC) 305 nitrogen emission 7 non carbon benefits 185–6, 298 non-compliance, causes of 111 non-governmental organizations (NGOs) 21, 72, 114, 128, 143, 167, 203, 218, 238, 249, 294, 315

non-state actors 4, 8, 108, 236, 341 role of in environmental governance 127 protecting the environment and natural resources 162 transboundary 127 voluntary consensus-based standard setting 120–24 Non-State Actor Zone for Climate Action (NAZCA) 82, 218 non-state-governance 72 ‘non-state market driven’ governance programme 78 North–South divide 274 power dynamics of international environmental law 200 ocean acidification 309 Office of the United Nations High Commissioner for Human Rights (OHCHR) 241, 247 oil pollution 318–20, 324, 326, 337, 339 organic agricultural soils 188 Organisation of Economic Co-operation and Development (OECD) 6, 73, 237, 357 Guidelines for Multinational Corporations 237–8, 247 Organization of the Petroleum Exporting Countries (OPEC) 319 ozone layer 166, 287 Panda Waste case 131 Paris Agreement on Climate Change (2015) 20, 24–5, 105, 116–18, 174, 180–81, 183, 185, 195, 217, 224, 233, 248, 252, 287, 307, 357, 365, 371 Article 4.4 of 365–6 on biodiversity co-benefits 186 climate protection targets 82 Compliance Committee 116, 118–19 goals of 75 institutionalized governance system 116 international trade law compliance 358 ‘learning-by-doing’ exercise 119 legal architecture of 117 Meeting of the Parties to 116 nationally determined contributions (NDCs) under 22, 24 negotiation of 357 ‘soft’ obligations 358 passenger car emissions, EU Regulation on 129 payments-for-ecosystem services programmes 291 peer learning 12, 48, 63–4 Permanent Court of Arbitration (PCA) 318, 325, 331, 337–8 Permanent Peoples’ Tribunal 172

Index  385 Philippine Commission on Human Rights 242 Philippine Rural Reconstruction Movement 242 political consumerism 259 political economy 95 political jamming, phenomenon of 248, 264 polluter pays principle 83, 243, 308 pollution control 250 polycentric governance 153–7 role of law in 155–7 transnational environmental governance as 153–5 Principle 10 of the Rio Declaration 198–200, 202–4, 206, 211–14, 343–4 Principles on Climate Obligations of Enterprises 239 private cross-border regulatory processes 71 private environmental governance initiatives 43, 131, 236–7, 242 private international law 70, 127, 272 private regulatory initiatives, legality of 102, 130, 236 private standards 77, 99, 226 problem-solving mechanisms 112, 114–15 process and production methods (PPMs) 354, 356 production methods used (PPM) 274, 280 Project Gigaton 236 public civil society 73 public international law 102 state-based 128 public participation 92, 117, 136–8, 198–200, 203–6, 212–13, 266, 343–6 public sector organizations 86 public transnational governance 72–3, 86 networking 82 public trust doctrine 315–16 Racketeer Influenced and Corrupt Organizations (RICO) Act, US 318 Ramsar Convention on Wetlands (1971) 171, 191, 195–6 REDD+ (Reducing Emissions from Deforestation and Degradation) 41, 179, 185, 284, 295, 298 basic requirements for 294 on biodiversity conservation 185 CBD’s involvement with 185 in developing countries 294 effectiveness of 297, 300 financing for 299 flexibility in the transnational legal process for 293–9 heterogeneity of 298 implementation of 293 lawmaking for jurisdictional 293–6

legal norms for 293 market-based sources of finance for 295 operationalization of 295, 297 role of development aid in 298 role of flexibility in the transnational legal process for 296–9 scheme for governance of forests and climate change 88 Social and Environmental Standards Initiative 296 transnational certification programmes for 298 reforestation 180, 184–7 regional environmental governance 173 regional global environmental constitutionalism 173–5 regional laws, nationalization of 177 regulatory instruments, of environmental governance 88–103 analysis of 95–7 case of fisheries 99–101 characteristics of 91 classifications of 92–4 complexity of 94 cross-border upscaling of 94 decision making 91 definitions of 90 legally non-binding ‘soft’ rules 91 new research agenda 97–9 research strategies and their limitations 95–7 rise of 89, 90–92 relocation of species 192–3 renewable energies 357 cost of developing 366 generation of 162 globalized production chain for 366 globalized supply chain for 365 subsidies in promoting 357 suppliers of 361 use of 81 research ethics 12, 48, 61–3 resource curse 231 Resource Management Act (1991), New Zealand 250 restoration of biodiversity 181–4 Rights of Nature 173, 307 ‘right to roam’ laws 253 Rio Declaration on Environment and Development (1992) 305, 307, 346 Access Initiative 205 Escazú Agreement 199 Lima Vision 206 plan of action 206 Principle 10 of 198–200, 202, 204, 206, 213, 343 Rio+20 Summit 205

386  Research handbook on transnational environmental law transnational expression 211–13 riparian zone protection 184 river basin management 191 Romanticism movement 254 Ruggie, John 240 rule-based liberal economies 93 Sanitary and Phytosanitary Measures (SPS) 85 San Salvador Protocol 347 Saul Luciano Lliuya v RWE 311 Scientific and Technical Review Panel 196 ‘scientific research’ whaling 250 ‘scorched earth’ strategy 318 sea ice, decline of 18 sea level, rise of 18 seed management 194 separation of powers, doctrine of 126, 128, 167, 305, 317 short-lived climate pollutants (SLCPs) 11, 19, 21, 29 small-scale and artisanal fisheries (SSF) 99–100 empowerment tactics adopted by 101 social activism 248, 258, 261 social aesthetics 252 social equity 78, 300 social injustice 258 social justice 13–14, 41, 101, 173, 209, 211, 213–14, 373 social media networks 261 social sustainability 222 socio-ecological crisis 160, 177 soft law, on environmental protection 11, 16, 19–22, 51, 100, 129, 157, 229, 235, 245, 301, 303, 305, 317 from the Arctic Council 26–7 Guiding Principles 241 judicially generated 306–8 soil carbon sequestration 180, 188–9 soil erosion control 188 soil microbial communities 188 soil restoration 188 sovereignty 282 special and differentiated treatment (SDT) 17, 362 standardization organizations 77–8, 87 ‘state versus market’ dichotomy 72 Stockholm Conference on the Human Environment (1972) 170, 342, 343, 345, 373 stock-sharing agreements 191 Subsidiary Body for Scientific and Technological Advice (SBSTA) 119, 287 Subsidies and Counter Measures (SCM) 352, 359, 365 sulphur emissions 7 Superior Court of Justice (STJ) 309, 330 supply chain

management of 74 operationalization of 94 sustainable development 186, 352, 356, 366, 371 concept of 176 principle of 174 promotion of 221 Sustainable Development Goals (SDG) 100, 129 sustainable land use 79 sustainable management, of carbon stocks 196 Task Force on Climate-Related Financial Disclosures (TCFD) 239 Taşkin v Turkey 346 Tatar v Romania 346 Technical Barriers to Trade (TBT) Agreement 85, 273, 352, 356 territoriality, principle of 271–2 Thomson v Minister for Climate Change 312 Timber Regulation (EU) 187 total petroleum hydrocarbons (TPH) 321 totemism (African religious practice) 38 trade liberalization 352 effects of composition effect 353 scale effect 353 technique effect 353 linkage with climate change 353, 363–6 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreements 352, 360 traditional knowledge 41, 57 transboundary environmental problems, proliferation of 301 transfer of knowledge and technology 111 transnational administrative networks 80, 82 transnational advocacy networks 107 transnational arbitration 83 transnational climate change law meaning of 219–20 by subnational entities 220–26 subnational actors and climate litigation 224–6 transnational city networks 221–4 theories of international lawmaking 226–8 transnational, conceptual history of 69–72 transnational corporations (TNCs) 71, 166, 167–8, 229–30 climate litigation trend 241–5 codes of conduct and strategies 238 contributions to climate change 233–4 and environmental and human rights harms 231–4 environmental and human rights responsibilities 235 free movement of capital 235 human rights and climate change 232–3

Index  387 rights and responsibilities of 231 rise of 231 transnational governance framework and initiatives 234–41 corporate transnational governance regimes 237–9 United Nations Guiding Principles 239–41 transnational environmental activism 255 culture jamming and 258–61 transnational environmental governance (TEG) 10, 13, 38, 43, 67, 88, 96, 230, 266 art and activism in see arts-based activism challenges for 127–9 definition of 145 formalization of 145 implications for 124–5 law and legitimacy in 146–8 law as legitimizing force in 150–53 law features in 148–50 institutional legitimacy of 149 roles of 149 mapping terminologies for 67–9 polycentric legitimacy in 153–7 regulatory instruments of 88–103 role and legitimacy of national courts in see courts, jurisdiction over environmental governance role of non-state actors in 127, 145 Westphalian model of 127 transnational environmental law (TEL) 2, 18, 126, 150, 198, 251, 268, 369–70 affluence of 45 analytical framework of 20–22 assumptions regarding working of 42–4 benefits of using 11, 18, 20–22 boundaries of 10 co-existence of plural environmentalisms with 38–40 concept of sustainability in 142 definitions of 126 diversity of practice of 47 dominance of climate change in 370–71 effect on nation state-based model of courts and adjudication 127 emergence and proliferation of 126 empirical research methods 52–6 as environmental law 373–4 flexibility in see flexibility in TEL future of 44–7 global values of 200–203 human rights and 340 legacy of 37–8 legal studies of 59 literature on 18

mapping of 8–11 for mitigation of black carbon emissions 20–22 multidirectional relationship law and institutional legitimacy 148 people’s perception of 147 plurality of environmentalisms and 34 practice of periodization 39 qualification of 373 relationships with both humans and nature 32 social versus environmental barricade 41–2 specificity of 8 Transnational Environmental Law (TEL) 8, 53 unknown past 34–40 usefulness of 19 as a visual field 32–3 transnational environmental litigation climate change jurisprudence 314–16 courts as facilitators of 309–16 difference with other types of environmental and public health litigation 310 judicial certification of IPCC assessments 310–14 transnational governance 68, 75, 229, 247 defined 71, 303 versus domestic, inter- and supranational law 72–5 egg-shaped diagram 74, 86 framework and initiatives 234–41 initiatives in 232, 236, 238, 245 institutional context of 84–6 mechanisms of 73 networks of 6 between perfecting and contesting regulation 101–3 structures of 75–83 administrative processes and best practices 81–3 companies and economic associations 76–7 expert commissions 78–80 networks of government agencies 80 standardization organizations 77–8 transnational arbitration 83 transnational networked governance 302–3, 304 transnational judicial networks 86 on environmental law 303–6 growth of 302–9 judicially generated soft law on environmental protection 306–8 transnational networked governance 302–3 water justice 308–9 transnational law 7, 68 challenges of 5 command-and-control mechanisms 5

388  Research handbook on transnational environmental law concept of 70 cross-border regulatory processes 71 defined 5 discourse of 5 distinctiveness of 5 environmental law see transnational environmental law (TEL) from the EU 25–6 as a field of practice 6 identification of 5 impacts of transnational regulation on 107 iterations of 4–6 as methodology 5 transnational legal order 11, 22, 30–31, 104–5 transnational legal theory development of 6 earthly life 45–7 transnational localism 47 transnational management, of environmental issues 80 transnational marine biodiversity litigation 225 transnational municipal networks (TMNs) 221 formation of specialized 221 transnational private certification scheme 99 transnational regulation 94, 97, 102 legal scholarship on 303 regulatory initiatives for 230, 241 transformative impacts of 107 transnational scientific networking 79 transnational standards 73, 77, 81, 85 Treaty of the European Community (TEC) 346–7 Treaty on Encouraging and Reciprocal Protection of Investment 331 Treaty on the Functioning of the European Union (TFEU) 347 anti-competitive agreements and concerted practices 130 enforcement of EU environmental law under 111 environmental justifications 133 on free movement of goods between Member States 135 imposition of sanctions under 114 infringement procedure under 111, 114 on regulatory efforts involving the state and private actors 131 on unilateral abuse of a dominant position by an ‘undertaking’ 130 waste disposal undertakings 134 Trump, Donald 166 turtle excluder device (TED) 354 undertaking, concept of 131 United Nations (UN) Caring for Climate Statement 238

Conference on the Human Environment 160, 165 Economic Commission for Europe 136, 198 Economic Commission for Latin American and the Caribbean (ECLAC) 206 Environment Programme (UNEP) 171, 197, 238 Framework Convention on Climate Change 174 General Assembly (UNGA) resolution 170 Global Compact 74, 237–8 Guiding Principles on Business and Human Rights (UNGPs) 231, 239–41, 243 Human Rights Council 240, 341 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) 169 International Law Commission on State Responsibility 347 Non-State Actor Zone for Climate Action (NAZCA) 218 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms) 231, 239–40 REDD Programme 294 Special Rapporteur for Climate Change and Human Rights 142, 169 Stockholm Conference on the Human Environment (1972) 39, 170 Universal Declaration of Human Rights (1948) 169 Voluntary Principles on Security and Human Rights 237 United Nations Environment Programme (UNEP) 23 Judicial Handbook on Environmental Law 305 Manual on Compliance with and Enforcement of Multilateral Environmental Agreements (MEAs) 109, 116 United Nations Framework Convention on Climate Change (UNFCCC) 22, 91–2, 105, 116, 120, 183, 195, 216, 238, 252, 287, 292, 366, 371 Cancun Agreements under 295 Conferences of the Parties (COP) 255, 294 decision making of 298 lawmaking for REDD+ in 295 REDD+ framework under 185, 294 universal ‘environmentalism’ 38 Urgenda Foundation v State of the Netherlands 43, 139, 310–11, 313, 316 US Chicago School antitrust doctrine 130

Index  389 US Court of Appeals for the Second Circuit 321, 332 US Environmental Protection Agency 225, 310 US Federal Communications Commission (FCC) 74 US Trade Representative (USTR) 331 value-oriented moral legitimacy 151 Vatnajökull National Park, Iceland 258 Verfassungsverbund 168, 174 Verified Carbon Standard (VCS) 289 Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries 100 Waste Directive 347, 350 water conservation 308 water crises 308 Water Framework Directive (EU) 191 water justice 16, 301, 303, 306, 308–9, 317 water pollution 303, 309–10 watersheds 184 Western Climate Initiative (WCI) 289 ‘Westphalian’ modes of law and government 67 Westphalian system 20 wetland management 180, 190–92 Wild and Scenic Rivers Act (1968), US 250 Wild Birds and Habitats Directives (EU) 181, 183 Wilderness Society 257 wind farms 184 World Bank 83, 195, 299, 357 Forest Carbon Partnership Facility (FCPF) 294 World Charter for Nature (1982) 170 World Health Organization (WHO) 80, 85, 347 World Heritage Convention 252 World Mayors Council on Climate Change 81

World Summit for Sustainable Development partnerships 289 World Trade Organization (WTO) 167, 273, 352 agreements relating to climate change 356, 357–63 Appellate Body 361 Article XX environmental exemptions in trade policy 353–6 carbon taxes 362–3 competitive relationship standard 360 criteria to determine the ‘likeness’ of products 354 Doha round of negotiations 353 ‘greening’ of 353–6 guidance for international trade law 356 MERCOSUR trade area 355 multilateral environmental agreements (MEAs) 353 Ontario FIT and MicroFIT Programme 358–60 reform strategies for stronger coherence 363–6 rights of Members under 355 subsidy problem 361–2 Trade and Environment Committee (TEC) 356 trade disputes under Brazil – Retreaded Tyres 355 Canada – Feed-In Tariffs / Renewable Energy 358, 360–61, 363, 366 India – Solar Cells 359–60, 363 Tuna–Dolphin 275 United States – Automobiles 362 US – Gasoline 355, 356 US – Shrimp 269, 276, 354, 355 US – Tuna 354 TRIPS Agreement under 352, 360 World Water Forum 308