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Ch.1 International Environmental Law: Changing Context, Emerging Trends, and Expanding Frontiers

Lavanya Rajamani, Jacqueline Peel

From: The Oxford Handbook of International Environmental Law (2nd Edition)

Edited By: Lavanya Rajamani, Jacqueline Peel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 06 December 2021

Freshwater — Biodiversity — Climate change — Marine living resources

(p. xciv) (p. 1) Chapter 1  International Environmental Law

Changing Context, Emerging Trends, and Expanding Frontiers

I.  Introduction

In recent years, global environmental harm—in particular, the prospect of profound and irreversible climate change—has occupied centre stage in popular and political consciousness, diplomatic efforts, and even cultural and artistic imagination. A pertinent example features on the front cover of this handbook, which shows the aftermath of unprecedented wildfires in the Australian Blue Mountains that attracted global attention and concern during the country’s ‘black summer’ of 2019/2020.1 Such events vividly demonstrate both the seemingly uncontrollable nature and the unparalleled scale of the environmental harms unleashed in what is often called the era of the Anthropocene.2 They also bring into focus the crucial importance of efforts to regulate such harms.

(p. 2) International environmental law is the legal and regulatory framework devised by the community of sovereign states to address global environmental harms. It is a dynamic and rapidly evolving field of international law, which encompasses a wide range of ideological perspectives, draws on multidisciplinary insights, and features innovative legal tools to deal with a diverse array of complex environmental problems. These problems include some of the most significant challenges facing the global community, including the potential for runaway climate change, vanishing biodiversity, increasing freshwater scarcity, and severe degradation of marine resources and ocean ecosystems.

The first edition of the Oxford Handbook of International Environmental Law, edited by pioneering international environmental law scholars—Daniel Bodansky, Jutta Brunnée, and Ellen Hey—was published in 2008. At the time, international environmental law was a ‘relatively new field’.3 The editors and authors of the first edition mapped the field of international environmental law by taking stock of the major developments of the time. In the years that have elapsed since then, popular consciousness of global environmental harm and demand for effective legal intervention has grown in leaps and bounds. This has offered law-makers—in addition to a range of non-state actors—the opportunity to explore international law’s potential in addressing such harms and to experiment with novel tools, techniques, and approaches to do so. However, in the process, the fundamental and seemingly rigid limits of international law have also become more apparent.

As the contributions to this second edition abundantly demonstrate, international environmental law has acquired further breadth, depth, nuance, complexity, and reach in the last decade. In particular, it is more deeply interconnected with policy and legal efforts in many other fields, including international trade and investment, human rights and migration, energy, disaster response, armed conflict, technology innovation, and intellectual property protection. In response to these shifts—some profound, others more subtle—as well as the growing maturity of international environmental law in the last decade, the second edition of the Oxford Handbook of International Environmental Law includes several new sections and chapters covering a wider landscape of issues than the first edition. The expansion of international environmental law has also led to the emergence of new scholars and voices in the field. Reflecting this, the second edition of the handbook incorporates a broader range of perspectives, covering more regions of the world, and reflecting greater gender balance and ethnic spread.

This introductory chapter to the second edition of the handbook explores and illustrates the ways in which international environmental law has evolved over the last decade (see Figure 1.1). It highlights how the field has adapted to a changing geo-political (p. 3) context, as well as to the possibilities and limits of global regulation in addressing the complex, polycentric, and intractable nature of environmental harms. It also explores the increasing activity at the interface of international environmental law with other fields of law and policy, expanding the sites at which international environmental law is made, applied, and implemented. The chapter concludes with reflections on the future of international environmental law in the context of the emerging understanding of the fundamental limits posed by the nature and operation of environmental law within the current architecture of international law and politics.

Figure 1.1  Evolution in international environmental law

II.  The Changing Context for International Environmental Law

The geo-political, social, economic, epistemic, and cultural context within which international environmental law operates today has altered in fundamental ways since the turn of the century.4 In this section of the chapter, we trace these shifts in underlying scientific knowledge of global environmental harm; popular understanding of environmental problems and social activism to address them; the growth and ‘mainstreaming’ of diverse approaches and voices in international environmental law; and the increasing political salience of environmental issues.

(p. 4) A.  Growing Understanding, Tracking, and Documentation of Global Environmental Harm

Our understanding of global environmental harms—their causes, the interconnectedness of causes and harms, and their impacts on people and the planet—is now more sophisticated, complex, and nuanced. As one pertinent example, the science relating to climate change—characterized as the ‘defining issue of our age’5—has advanced considerably. Successive reports of the Intergovernmental Panel on Climate Change (IPCC) have demonstrated that climate change is real, its impacts are discernible, and that it is occurring ever faster and in more devastating ways than once predicted.6 In the words of Petteri Taalas, the Secretary-General of the World Meteorological Organization (WMO):

The science is clear. Without rapid cuts in [carbon dioxide] and other greenhouse gases, climate change will have increasingly destructive and irreversible impacts on life on Earth. The window of opportunity for action is almost closed.7

In other areas, the 2019 Global Environmental Outlook records the extent of global environmental challenges and our increasing scientific understanding of them. These include the enduring impacts of air pollution on health; the mass extinction of species that is compromising Earth’s ecological integrity; marine plastic pollution, including microplastics, that is pervading all levels of the marine ecosystem; and the escalating land degradation that is impacting food security. The Global Environmental Outlook report finds that the world is not on track to achieving the environmental dimensions of the United Nations’ (UN) Sustainable Development Goals by 2030 or to delivering long-term sustainability by 2050.8 Similarly, the 2020 Global Biodiversity Outlook, titled ‘Humanity at Crossroads’, finds that not only is the world unlikely to meet any of the (p. 5) Aichi Biodiversity Targets,9 but also there are significantly worsening trends concerning the drivers of biodiversity loss and the current state of biodiversity.10

The central message across the slew of recent scientific reports is that current patterns of production and consumption, population growth, and technological development are unsustainable. In the absence of transformative change involving all states, every sector of the economy, and across the full gamut of stakeholders and actors, irreversible and unprecedented environmental harm will be unleashed on the planet, affecting human health, well-being, and even the long-term survival of humanity and the other species that inhabit Earth.

B.  Increasing Reporting and Popularization of Global Environmental Harms

In keeping with the growing scientific understanding, tracking, and documentation of global environmental harm, in the last decade, there has been increased reporting and public discussion of such harm, triggered in part by the rapid expansion in internet penetration,11 and rise in the use of social media.12 Our senses are continually bombarded with arresting images of starving polar bears, melting glaciers, bleaching corals, massive storms and record flooding devastating communities, sinking islands, raging wildfires, and growing islands of ocean plastic. Like no other generation before us, we have had a profound impact on the environment, recognized in the characterization of the current epoch as that of the Anthropocene.13 This acknowledgement, along with a renewed (p. 6) interest in addressing humanity’s impacts on the planet, has fuelled multiple forms of social-ecological engagement, particularly transnational social movements, reactive advocacy and radical direct-action around global environmental issues. The Extinction Rebellion,14 and school strikes,15 offer excellent recent examples, while anti-whaling and energy-siting protests are of longer vintage.16 It has also inspired a new wave of artistic expression through eco-art,17 eco-poetry,18 music,19 and literature.20 Indeed, Margaret Atwood, in the eerily prescient MaddAdam Trilogy, asks the ever-pressing questions at the core of our current environmental crisis:

What if we continue down the road we’re already on? How slippery is the slope? What are our saving graces? Who’s got the will to stop us?21

C.  Mainstreaming of Diverse Ethical Values, Approaches, and Perspectives

There is, in this context, a reckoning of the ethical values, approaches, choices, and conflicts at the heart of environmental discourses. Although international environmental law has always reflected a mix of anthropocentric and non-anthropocentric values, non-anthropocentric values are gaining ground. Eco-centric notions, such as biodiversity, ecosystem approaches, and rights of nature are increasingly referenced, even if only implicitly, across a wide range of international instruments.22 These trends coalesce with the concept of Earth Jurisprudence—the eco-centric belief that our life, health, and well-being flow from the complex web of ecological and social relationships that constitute the Earth Community, and require humanity’s harmonious coexistence (p. 7) within a healthy Earth community.23 Earth jurisprudential ideas have been recognized in some international instruments and by national constitutions and courts that have in turn bestowed rights to rivers and mountains.24 The growth of this approach, driven primarily by global civil society and Indigenous peoples,25 reflects a broader trend towards mainstreaming diverse approaches and voices in international environmental law.

Among the approaches that have gathered traction, a notable one is the Global South Approach. This approach highlights both the exploitative colonial origins of international law and the disproportionate contribution of the industrialized countries to environmental harm. In this context, it seeks to advance principles and frameworks that recognize differential contributions to, and capacities in addressing, global environmental harm.26 The centrality of differentiation and the principle of common but differentiated responsibilities in international environmental law indicates the success that this approach has had thus far.27 Feminist Approaches to International Law have also made headway in this time, offering the international community a ‘lens to examine the exploitation of nature and women, through analyses of power, social constructs, and inter-species relationships’.28 Proponents of feminist approaches showcase the consistently undervalued yet pivotal contribution of women and children to the evolution of international environmental law, and spear-head efforts to embed gender within international environmental processes. International environmental law is increasingly gender-literate, and richer for these efforts.29 These trends, signalling greater inclusion and sensitivity to diverse values, approaches, and perspectives in international environmental law, are likely to gather strength as societies face the consequences of the environmentally destructive trajectory that we are on.

At the opposite end of the spectrum, economic perspectives and actors—long-recognized as pivotal contributors to the shaping of international environmental law—are taking on new roles.30 Concepts such as the ‘circular economy’, ‘green growth’, and ‘product stewardship’31 are melding with ideas of corporate social responsibility and environmentally sustainable investment practices to re-envision the role of the market and (p. 8) the private sector in international environmental law. While such developments have not displaced a continuing strong adherence to conventional notions of the capitalist market economy in international law and politics, there is growing evidence of some ‘greening’ of business and industry, including a greater focus of global capital (investors and asset owners) on the unsustainability of ‘business as usual’ approaches.

D.  Increasing Political Salience and Contestation

As the science has become more certain, the impacts more tangible, and the demand for action stronger, global environmental harm has garnered considerable political salience. The issue of climate change, in particular, has captured the political imagination in the last decade. More than 150 Heads of State and Government participated in the negotiations for the 2015 Paris Agreement, and successive UN Secretary-Generals have prioritized addressing climate change during their terms. This focus of states and intergovernmental organizations was paralleled by unprecedented levels of civil society and business involvement in the Paris negotiations.32 Yet, the task of addressing climate change, and global environmental harm more generally, has also become infinitely more contentious and challenging in this time frame.

There have been fundamental shifts in states’ political and economic power in the last few decades. Many large developing countries, in particular China, India, Brazil, and South Africa, have grown exponentially across this period, and are emerging as leaders and innovators in addressing environmental challenges. They are also, however, imposing more serious and sustained costs on the global environment than before. China, for instance, is the world’s largest emitter of greenhouse gases (GHGs) today, having overtaken the United States several years ago.33 The differences between and within the developed and developing country groupings have also increased, blurring the lines between these groups, and leading to demands that such categorizations of states be obliterated.34

Yet, there are persistent inequalities between those living in developed and developing countries,35 and the situation of communities living in vulnerable small island states and least developed countries is worsening. Many developing countries (p. 9) have yet to lift their populations out of poverty and provide energy access and other life-sustaining services to all their citizens. An estimated 1.1 billion people, 14% of the world’s population, do not have access to electricity,36 and an estimated 700 million people, predominantly in sub-Saharan Africa, are projected to remain without electricity in 2040.37 Such continuing differences between states, and their priorities, have fundamentally shaped the scope and nature of obligations negotiated in international environmental instruments.38 Although many of these shifts in the political and economic power of states had begun to influence the negotiation of international environmental agreements in the early 2000s, they have had a more profound impact in the last decade.

Many states, both developed and developing, have been struggling with disruptive shifts in domestic politics, including moves towards populism, nationalism, protectionism, distrust of experts, and increased polarization, which have had an immediate impact on international environmental law. The turn to right-wing governments in some parts of the world, fostered by powerful fossil fuel and agri-business lobbies, has taken its toll on the environment. The US Obama administration, for instance, played a decisive role in negotiating the Paris Agreement and introducing numerous domestic climate regulations. However, the Trump administration later dismantled these regulations and withdrew from the Paris Agreement.39 The Biden administration re-engaged with the Paris Agreement, but the four-year US absence had consequences for the regime. Although the Bolsonaro government in Brazil chose to stay in the Paris Agreement,40 it has reportedly dismantled many of Brazil’s environmental regulations,41 and reignited the ‘arc of fire’ in the Amazon.42 India’s Modi government (p. 10) has also (notwithstanding a seemingly progressive stance on global environmental issues) weakened domestic environmental regulations, in particular relating to Environment Impact Assessment (EIA).43

Finally, and perhaps most tellingly, the seismic disruption caused by the COVID-19 pandemic in 2020—an omen of the nature and scale of disruption to be caused by climate change—is likely to have an enduring impact on international environmental law. The coronavirus crisis has underscored the profound consequences of biodiversity loss and ecosystem degradation for human health, well-being, and survival. It has exposed our systems’ fragility, and demonstrated that abrupt change, whether related to pandemic disease or climate shifts, will affect the poor, marginalized, and vulnerable the most.44 The response to the pandemic has accentuated some environmental concerns, such as plastic and other forms of waste, with a dramatic uptick in the use of single-use personal protective equipment.45 And while the worldwide lockdowns in 2020, which confined people to their homes and shuttered businesses, resulted in a temporary downturn in energy demand and carbon dioxide (CO2) emissions,46 COVID-19 associated disruption could create a serious (and potentially fatal drag) on global efforts to address climate change.

The postponement of the 2020 annual climate negotiations by a year is merely the tip of the iceberg. The emissions decreases in 2020—occasioned by traumatic and drastic confinement measures rather than structural changes in the economic, transport, energy, or agricultural systems—were temporary. Meanwhile, the ambitious commitments, actions, policies, and measures needed to trigger and sustain emissions reductions in line with the Paris Agreement’s ‘well below 2°C’ temperature limit grow ever further from reach.47 Many nations are tackling the deepest recession they have faced in a generation. India’s economy, for instance, shrank by 24% during the lockdown (p. 11) in 2020.48 While momentum is gathering across the world for a ‘green recovery’ and to ‘build back better’,49 whether states will, in the process of economic recovery, entrench the reliance on fossil-fuels,50 or take the opportunity to transform their economies towards net zero emissions remains to be seen.

However, the coronavirus crisis showcased the ability of governments to intervene decisively, and at scale,51 and our ability to make fundamental, if painful, behavioural shifts in response to a global crisis. The crisis has also mobilized a range of actors, including civil society, business interests, and investors, to step up interventions to hold national governments accountable for managing the recovery process and preparing for future systemic risk scenarios. These developments will hold us in good stead in managing the risks of future environmental disasters and integrating and re-evaluating disaster law in relation to environmental harms.52

III.  Emerging Trends in International Environmental Law

It is against this ever-changing context that international environmental law is maturing and discovering its limits. In this section of the chapter, we discuss how international environmental law has adapted to this changing context and several discernible trends that have emerged as a consequence. These include shifts in norms and discourses of international environmental law; increasing maturity in the interpretation of the content of customary norms, principles, and techniques; a change in focus towards more facilitative and procedural modes and implementation over rule-making, with a concomitant nuancing of concepts of differentiation and an enhanced role for soft law; and greater diversification in the participating actors and sites of international environmental law activity, including a growing judicialization of the field.

(p. 12) A.  Discursive Dominance of the Discourse of Sustainable Development

Environmental ideas, norms and discourses, and the epistemic communities that generate them,53 are shifting and adapting to the changing context within which international environmental law is set. The notion of ‘planetary boundaries’ has gained ground but is yet to be endorsed in international instruments.54 Promethean discourses that deny the existence of such limits or believe that human ingenuity will find a way if there are limits, overlap with identity politics, and have adapted to current challenges. Their proponents place reliance on the redemptive power of technology, as for instance in the promotion of geo-engineering to resolve the climate crisis.55 The discourse of sustainable development, which gained ground in the 1980s, assumes that environmental conservation and economic growth can be mutually reinforcing rather than conflicting values. It has the breadth, which other discourses lack, to consider social justice concerns across generations. And it has over time taken decisive hold of international environmental law, albeit with differing emphases at different points in time in the trajectory of the field’s evolution. This is reflected in the UN Sustainable Development Goals56 and 2030 Agenda,57 which rely on the foundational notion of sustainable development while also attempting to give it more concrete form. Informal mechanisms, such as discourses, in general matter more in the international system since formal institutions are relatively weak and informal approaches provide options for coordination across actors.58

B.  Increasing Maturity in the Content of International Environmental Law

1.  Developments in customary international law relating to the environment

There is increasing maturity, borne in part of experimentation and innovation, in the content of international environmental law. Developments in customary international law have been important in particular sub-disciplines of international environmental law, such as international law governing watercourses,59 as well as in respect of some (p. 13) foundational principles. For example, the harm prevention principle, ‘central to the normative structure of customary international environmental law’,60 has evolved and been fleshed out in recent cases, including Costa Rica v Nicaragua/Nicaragua v Costa Rica.61 Its core content has been clarified and consolidated, although ambiguities remain, in particular, relating to the relationship between its procedural and substantive aspects.

The harm prevention principle and the three related duties—the duty of due diligence and the procedural duties to conduct an EIA and to cooperate in good faith,62 including through notification and consultation—are now recognized as comprising the core of customary environmental law which is ‘finally coming out of the thick fog in which it was engulfed for decades’.63 While custom has potential, as part of a ‘legal toolkit’, in curbing transboundary environmental impacts,64 it is limited in addressing complex, polycentric, collective action environmental challenges, such as climate change, ozone depletion, and biodiversity loss, which are better addressed through multilateral environmental treaties.65

2.  Crystallization of principles of international environmental law

The principles of international environmental law, particularly the principles of sustainable development, precaution, common but differentiated responsibilities, and inter- and intra-generational equity, are a fundamental part of the conceptual architecture of international environmental law.66 They have been operationalized in numerous treaty regimes and have been referred to in several international judgements over the last decade.67 In the process, these principles have begun to acquire concrete content. While interpretational ambiguities remain at the heart of these principles, there is greater clarity around the nature and sources of these ambiguities, and a growing appreciation of their potential benefits in providing flexibility and a capacity for the evolution of international environmental law.

The legal status of some of these principles, such as the principle of sustainable development, has crystallized,68 while that of others, such as the precautionary principle, remains in the process of crystallization.69 More broadly, there is a growing realization (p. 14) that the formal legal status of these principles is less critical than their operational significance. Principles, for all their inherent ambiguities, form a skeletal structure for the body of international environmental law. As such, they guide the interpretation of existing regimes and structure of new ones. The French proposal for a legally binding Global Pact for the Environment70 was intended to strengthen the coherence and provide authoritative definitions of the core principles of international environmental law. However, its one-size-fits-all approach encountered fierce opposition.71 It remains to be seen whether the interpretational ambiguities at the heart of these principles enable further dynamism, adaptability, and resilience in international environmental law, or pose fundamental challenges to its ongoing evolution and implementation.

3.  Expansion in the legal tool-kit

Although far fewer multilateral environmental treaties were negotiated in the last decade than previous decades,72 the ones that have, mark a step change from the earlier generation of such treaties in several respects. States have begun to experiment with a wider range of regulatory instruments,73 including market-based ones, that embrace ‘flexible market forces rather than legal coercion’ under these treaties.74 The 1997 Kyoto Protocol to the UNFCCC, containing market-based instruments, came into effect in 2005, and the full potential and limits of market-based instruments have become apparent in the last decade.75 Recent measures adopted under International Civil Aviation Organization (ICAO) to address GHG emissions from the aviation industry include, for instance, a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA),76 and the Paris Agreement also recognizes a role for markets in achieving global emissions reductions.77 Although ‘market approaches have firmly entered the canon of international environmental law’, the challenges in negotiating the rules relating to markets under the Paris Agreement demonstrate that consensus on such approaches is still elusive.78

(p. 15) C.  Shifting Focus of International Environmental Law

1.  Facilitative and catalytic

More generally, environmental treaties have begun to focus on identifying objectives rather than prescribing how states are to achieve them.79 Instruments negotiated in the last decade, notably the 2013 Minamata Convention on Mercury and the 2015 Paris Agreement, identify goals, and provide a menu of regulatory options, but are facilitative and catalytic rather than ‘top down’ and prescriptive, as many earlier instruments were.80 Ongoing negotiations on protecting Biodiversity Beyond National Jurisdictions (BBNJ) reflect a similar approach.81

2.  Procedural ‘turn’

Relatedly, recent instruments signal a procedural turn in international environmental law. The Paris Agreement, for instance, creates a web of inter-locking procedural commitments requiring states to submit ‘nationally determined contributions’ (NDCs) to address climate change, as well as detailed information, subject to expert review, to clarify these contributions as well as to track the conduct of states in achieving their NDCs.82 It does not, deliberately, create substantive obligations of result in relation to NDCs.83

This trend, some note, is reflective of a broader ‘turn to transparency’ in international law, a turn that reflects a recognition that transparency is a valuable and substantive goal in itself, and not just a means to other ends.84 The successful implementation of the 1998 Aarhus Convention85—demonstrated via the numerous pieces of national legislation that have been introduced and implemented to enhance public participation in environmental decision-making, access to environmental information, and effective remedies—and the adoption of the 2018 Escazú Agreement86 offer further evidence of this turn to transparency in international environmental law.87 While these instruments are of limited geographical scope, they endorse the ongoing normative development of expanding participation in international law.88

The turn to procedure, in particular relating to transparency, is also reflected in the intersections of human rights law and international environmental law. The right of (p. 16) individuals to access environmental information, although of recent vintage, has become quickly entrenched in international law.89 Further, the emerging jurisprudence of human rights bodies suggests that while states are offered a wide margin of discretion in relation to the appropriate level of environmental protection they choose for themselves, they are subject to more specific procedural requirements.90 These require states to conduct impact assessments for proposed activities that can cause environmental harm and violate human rights, to publicize environmental information, and to provide individuals access to judicial remedies.91 The 2018 Framework Principles on Human Rights and the Environment, presented by the then Special Rapporteur on Human Rights and Environment, John Knox, highlights the procedural obligations of states in this regard.92 The evolution of the customary international law principle of harm prevention, mentioned earlier, to provide increased clarity on the procedural obligations of states, also matches this trend.93 While this turn to procedure, and particularly transparency, enhances governance, legitimacy, and democratic structures in international and national environmental decision-making,94 it may also be a troubling sign insofar as it takes the place of, rather than complements, politically contentious substantive standard-setting in international environmental law.

3.  Greater deference to national sovereignty, circumstances, and capacities

That the lack of political will for a substantive standard-setting role for international environmental law, may, at least in part, explain the turn to procedure in international environmental law—is supported by yet another general trend in recent international environmental instruments, namely, that of greater deference to national sovereignty, circumstances, and capacities. The paradigm shift in the climate change regime from legally binding obligations of result in the 1997 Kyoto Protocol to NDCs (subject to obligations of conduct alone) in the 2015 Paris Agreement is the sharpest example of this trend.95 The Paris Agreement also includes a telling reference to ‘in light of different national circumstances’ in its invocation of the principle of common but differentiated responsibilities.96

(p. 17) In a similar vein to the Paris Agreement’s use of NDCs, a 2019 ICAO resolution on climate change ‘encourage[s]’ states to submit ‘voluntary action plans’ on climate policies and measures, and to report on the ‘basket of measures reflecting respective national capacities and circumstances’.97 Unlike in international wildlife and biodiversity law, where the starting point is permanent sovereignty over natural resources,98 in relation to global commons the starting point is ‘common concern’, and the related understanding that it generates obligations erga omnes. The move towards greater deference to state sovereignty and autonomy in this context is remarkable, but tracks with the changing geo-politics discussed earlier, and the need to appeal to political regimes that are inward-looking, nationalistic, and agnostic to international law.

4.  Tailored and nuanced differentiation

Recent international environmental instruments, in line with the changing geo-politics, also reflect greater parity between states in relation to obligations, and capture greater nuance in the nature and extent of differentiation between and among developing countries and developed countries, than earlier instruments. The Minamata Convention contains uniform obligations for states. Unlike the Kyoto Protocol that contains different commitments for different categories of parties, the Paris Agreement tailors differentiation to the specificities of each of the areas of regulation—mitigation, adaptation, finance, technology, capacity-building, and transparency. This seems to depart from earlier expressions of differentiation in international environmental instruments, such as the 1987 Montreal Protocol, which more clearly recognized different starting points and contributions of states in respect of the problem of ozone depletion and provided for a system of continual adjustments and amendments to phase in developing country participation over time.99 In effect, more recent shifts in the understanding of differentiation have resulted in different forms of differentiation in different areas and enhanced discretion for all. Efforts to circumscribe and nuance differential treatment in favour of developing countries are also evident in the CORSIA, negotiated under the auspices of ICAO.100

5.  Increased reliance on soft law

These shifts in differentiation have often provoked greater resistance to hard law instruments and obligations. This has led, in part, to a proliferation of fine-grained distinctions in the forms of law generated by states, and a spectrum of ‘bindingness’ in relation to instruments and obligations. This is most evident in the Paris Agreement, the (p. 18) provisions of which blur the boundaries of law, soft law, and non-law, and between all of which there is dynamic interplay.101

More generally, soft law, at the core of international environmental law from the start (the 1972 Stockholm102 and 1992 Rio Declarations103 are obvious examples104) has further consolidated its hold on international environmental law. Soft law, which not only takes the form of resolutions and declarations, but also of decisions taken by conferences of parties (COPs) to multilateral environmental agreements (MEAs), as well as of private and quasi-private standards,105 plays a central role in the day-to-day functioning of international environmental law.106 Soft law is easier to arrive at, attracts wider participation, is more responsive to change, and can be immediately implemented.107 In the context of increasing political contestation over global environmental issues, and wariness of legally binding instruments (with the attendant loss of sovereignty), soft law offers a less contentious alternative that is nevertheless responsive, and potentially as effective, if not more so, than hard law, in addressing certain environmental issues. Soft law, in any case, is the ‘product of an increasingly sophisticated legal system’,108 and international environmental law is certainly that.

6.  Treaty-making to treaty interpretation and implementation

While the decades between Stockholm and Rio witnessed robust growth in international environmental treaty-making,109 even at the time the first edition of this handbook was published, this pace had slowed down. In the years that have elapsed since, multilateral environmental treaty-making at the global level has been limited to the Minamata Convention, the Paris Agreement, and the ongoing negotiations for the protection of BBNJ.110 Some treaty-making activity has also been evident regionally, including conclusion of the Escazú Agreement and ongoing development of environmental protection rules within the European Union (EU).111 Regional treaties, such as the 1992 UNECE (UN Economic Commission for Europe) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Water Convention), (p. 19) have also expanded their potential reach by allowing accession by parties outside the region.112 However, even at the regional level, only a handful of new treaties have emerged.

The focus of international efforts has shifted instead to implementing existing regimes, and addressing the regulatory overlaps, inconsistencies, and inefficiencies between and within regimes that flow from a congested legal field.113 For example, in the area of transboundary air pollution regulation, the rapid development of new protocols to the 1979 Convention on Long-range Transboundary Air Pollution (LRTAP) that characterized the period from 1980 to 2000 has given way to refinement of existing protocols to extend their coverage.114 The stagnation in treaty-making in this phase tracks with developments in international law more generally, but is also the result of ongoing normative development, albeit of soft law, under MEAs and regional environmental treaties, through COP decisions. Much of this normative development is directed at interpreting and implementing treaty requirements.

MEAs are often the outcome of consensus-based decision-making and they frequently represent high-level skeletal compromises that need to be fleshed out before they can be operationalized. These treaties also contain provisions that are drafted in a manner that is deliberately ambiguous to preserve the positions of all sides,115 and often defer contentious issues to be resolved through seemingly less political subsequent rule-making. COPs, in this context, are tasked not just with overseeing the implementation of these treaties, but also with interpreting them, and resolving deferred issues. As such, these bodies, and processes to enhance coordination between them, have become an important element of the institutional architecture of international environmental law.116

MEAs contain a range of mechanisms to support and enhance implementation, including those offering financial support and assistance with capacity building and technology development and deployment.117 Financial assistance, especially, has proven to be key not just in enhancing the implementation of treaty commitments, but also in bringing defaulting states back into compliance. The experience of the Montreal Multilateral Fund offers a useful example in this context.118 Multilateral environmental (p. 20) funds, in particular those directed at addressing climate change, have multiplied over the last decade,119 and expanded to include sui generis public-private mechanisms such as the Prototype Carbon Fund, and the Rainforest Trust Fund.120 More broadly, in keeping with the increasing diversity of actors engaging with international environmental law, and the scale of the environmental challenge, private finance and enterprise play a far more decisive role than before. Technology assistance and transfers, albeit long recognized as central to implementation, have proven unequal to the task, mired as they are in conflicts over intellectual property rights.121

Many MEAs also rely on reporting, monitoring, and review mechanisms to strengthen implementation and identify potential cases of non-compliance. As discussed earlier, such mechanisms have come off the sidelines to occupy centre stage in international environmental law.122 For instance, the 2015 Agreement’s ‘enhanced transparency framework’, bolstered by detailed rules under the 2018 Paris Rulebook,123 places significantly higher and more frequent informational demands on states than the 1992 UN Framework Convention on Climate Change. Indeed, the Agreement’s design complements information flow with obligations of conduct in a bid to generate peer-to-peer assessments, mutual trust, and reciprocity, which in turn is expected to enhance ambition and implementation.124

Non-compliance procedures also play a key role in enhancing implementation. Non-compliance procedures in MEAs are typically facilitative.125 The Kyoto Protocol’s compliance committee, which performed both facilitative and enforcement functions, was the notable exception. Although the Kyoto Protocol’s compliance committee proved to be effective in the performance of its enforcement function, the political calculus has since shifted towards more facilitative instruments, diffuse and contextual obligations and thus facilitative non-compliance procedures as well. The Montreal Protocol non-compliance procedure, which is largely facilitative, with some enforcement tools at its disposal, has emerged as the standard for environmental compliance systems.126

More broadly, the experience and scholarship on the effectiveness of international environmental instruments provides useful insights into causally-informed notions of compliance that can help determine if observed behavioural shifts can indeed be attributed to an agreement, and to carefully identify the conditions under which different regulatory approaches best foster an agreement’s influence.127 Studies of the (p. 21) effectiveness of MEAs over the last few decades suggest that although most international regimes have had some effect on the problems they address, they rarely, if ever, solve them.128 In relation to effectiveness, the Montreal Protocol has emerged as the gold standard for MEAs, a status often attributed to the treaty’s flexible processes for amendment and adjustment of its rules, as well as its well-functioning finance, technology transfer, and non-compliance mechanisms.129 The existing climate change regime suffers in comparison, and the Paris Agreement is yet to be fully operationalized and tested.130

National implementation of international environmental law has also changed over time in response to the nature of instruments being negotiated and the actors involved. The characterization of implementation as a ‘top down’ imposition of law on a state is no longer accurate for agreements, such as the Paris Agreement, where contributions are ‘nationally determined’ and a wider set of actors are engaged in delivering on these contributions.131 Where there are serious breaches of international environmental law, the law of state responsibility can hold states accountable and provide reparation for the damage that has occurred. However, this law is yet to be put to serious test by environmental claims, especially in the context of collective action problems like climate change and biodiversity loss.132 This international accountability void is being met—most prominently in the climate context—through increased reference to international environmental law in domestic policy-making, including at sub-national levels,133 and via arguments looking to states’ obligations under MEAs in litigation before domestic courts.134

D.  Increasing Resort to International Courts and Tribunals

In keeping with the rapid growth and proliferation of international environmental law, the turn of the century has marked the start of a phase of brisk growth in the judicialization of international environmental law.135 International courts and tribunals, especially in the last two decades, have played an important role in the development of international environmental law by providing authoritative articulations of rules and principles, and in identifying standards and expectations associated with these rules and (p. 22) principles.136 They have been effective in some respects, for instance, in influencing state behaviour in relation to the obligation to perform transboundary EIAs, but less effective in others, for instance, in preventing harmful transboundary effects.137 International environmental disputes have also contributed more broadly to the development of jurisprudence relating to state responsibility and the law of treaties.138 Regional human rights courts have begun to weigh in on international environmental law, with some far-reaching recent decisions emerging from the Inter-American Court on Human Rights (IACtHR).139 There is also increased use of investor–state arbitration as an environmental protection mechanism.140 And, as noted above, a growing effort to seed and translate norms of international environmental law in domestic litigation.141

This trend towards increasing judicialization of environmental concerns is set to grow, particularly in the context of climate change, where the glacial pace of the negotiations relative to the narrow window of opportunity to address the problem has caused immense frustration. There are several cases in the pipeline, and in courts, national, regional, and international. Non-state actors are taking governments and corporate actors to court to force ambitious action. As laws and policies, both international and national, fall far short of what science dictates as necessary to address climate change, increasing recourse to litigation seems inevitable.142

E.  Enhanced Decentralization and the Emergence of Polycentric Governance

The last decade has witnessed a dramatic uptick in actors, initiatives, and networks across and within states engaging with international environmental law. The business community, including multinational corporations, banks, investors, and insurers, is (p. 23) more deeply and constructively engaged in international environmental law than at any period in the past.143 Non-state and sub-national actors are both active participants in shaping international environmental regulation, and effective vehicles for its implementation.144

The Paris Climate Conference, for instance, launched the Global Climate Action portal to record efforts of non-state actors. It contains 27,000 commitments from over 10,000 cities, 4,000 companies, and 1,000 investors.145 The most telling example of such non-state actor influence and reach is that notwithstanding the US decision under the Trump administration to withdraw from the Paris Agreement, many US states, cities, and businesses undertook to meet the country’s pledged GHG mitigation targets.146 The normative developments promoting public participation, referred to earlier, support such an expansive role for non-state actors.147 While most pronounced in the climate change arena, these trends are also evident in other areas of international environmental activity, such as the emerging focus on marine plastic pollution, which is bringing together a coalition of international organizations, non-state actors, scientists, and investor groups to push for greater action.148

Needless to say, the growing role and significance of non-state and sub-state actors in international environmental law, has brought the role and continued salience of the state into question.149 The role of states as ‘authors and guardians of the law’ has changed over time, yet states have remained crucial as ‘addressees’ of international environmental law.150 They engage in cooperative law enforcement against each other and implement and enforce standards within their jurisdiction. Indeed, new forms of governance have arguably given the state a broader canvas to write on and a wider range of actors to influence.151 Consistent with trends in domestic environmental governance, the shift in states’ role is often one from ‘rowing’ to ‘steering’ developments.152 The increasing autonomy offered to states in more recent multilateral environmental instruments also supports the argument that the state is as powerful and central as before, albeit in a changed context, and with more sophisticated demands placed on it.

The trend towards decentralization and enhanced polycentricity of international environmental law—both in relation to non-state and sub-national actors, as well as (p. 24) the autonomy states have in newer, facilitative, ‘bottom-up’ forms of environmental governance—developed in part due to the gaps exposed in traditional environmental law, together with difficulties in shifting the entrenched positions of sovereign states. It has, in its wake, shrunk the space for international enforcement and expanded the scope for domestic law, litigation, and courts. This has also led to interesting discussions around the appropriate level of governance for addressing environmental issues,153 and tensions and complementarities at the interface of international and domestic law.154

IV.  Expanding Frontiers of International Environmental Law

As international environmental law has grown in ambition and reach, it has encountered other specialized international law regimes. Some of these encounters have resulted in colliding ‘objectives and values’,155 as, for instance, in relation to the legal frameworks governing trade, investment, energy, and intellectual property. Other encounters, as, for instance, with the legal frameworks governing human rights, migration, and disaster, have generated opportunities for convergence, complementarity, and integration. As this section of the chapter discusses, both sets of encounters—characterized by remarkable ingenuity and creative lawyering directed at rendering international law fit for environmental purpose—expand the frontiers of international environmental law and these other regimes.

States and dispute settlement bodies have sought over time to balance the needs of the environment with the demands of the multilateral trading system, with some success. However, since this balancing exercise is spear-headed by bodies such as the World Trade Organization dispute settlement mechanism, the balance is often struck in favour of trade over the environment.156 This is particularly problematic in the context of the ‘new generation’ of trade disputes emerging in relation to governmental efforts to support low-carbon industries.157

Similar collisions of ‘objectives and values’ are evident in the context of investor–state arbitrations.158 In this field too, rules of international investment law were at least initially prioritized over international and domestic environmental law and decision-making. The culture and context, however, is constantly shifting, and the demand for a more balanced approach, or even one that favours the environment, is growing quickly. (p. 25) Early signs of responsiveness are evident in recent bilateral investment treaties (BITS) and foreign trade agreements (FTAs) that capture a more balanced version of the environment and investment nexus.159 Moreover, arbitrators in investor–state arbitrations are also beginning to demonstrate some sensitivity to environmental concerns and familiarity with environmental rules. Nevertheless, this is still a work in progress, and if environmental harms, including climate change, are to be effectively addressed, trade, investment, and environmental rules need to be truly ‘mutually supportive’.

International legal frameworks governing energy are also frequently at odds with international environmental law. Conventional energy that powered the twentieth century is a source of significant environmental harm. Although sustainable energy is expected to drive responses to such environmental harm, reliance on alternative energy sources, such as biofuels and wind, can have deleterious impacts on the environment, food security, and species protection. Yet, since international energy regulation is directed principally at facilitating energy activities and only incidentally at mitigating its negative transboundary effects, environmental risks, particularly fossil-fuel use, are largely unregulated at the international level.160 This has led to increasing efforts to find synergies between energy and environmental objectives, as for instance, under the 1971 Ramsar Convention on Wetlands, and the 1972 World Heritage Convention.161 This activity is likely to grow and become increasingly salient, as the impacts of climate change take hold and the demand for energy transition expands.

The legal framework governing intellectual property rights offers another source of potential tension with international environmental law. Technological innovation is key to combatting global environmental harm, and indeed is the dominant paradigm in Promethean environmental discourses. However, access to such technologies because of the intellectual property rights that attach to them is challenging and has been a site of conflict between developed and developing countries. There are efforts underway to increase public investment and foster cooperation in research and development, and experiment with technology patent pools, which could address the restrictions that intellectual property regimes pose to the availability and diffusion of existing and future technologies.162 The demand for widespread diffusion of emergent green technologies—indeed their centrality given the seemingly impossible alternative of transitioning away from our capitalist structures and consumerist lifestyles—will require creative lawyering at the interface of international environmental law and the international law relating to intellectual property.

In other fields such as human rights, migration, and disaster, although ‘objectives and values’ often complement rather than collide with those in the environmental field, developments proceeded in siloed parallel for several decades. The primary points of intersection between human rights law and environmental law are concerning the (p. 26) ‘human right to a healthy environment,’ procedural rights relating to access to environmental information, public participation, and remedy, and the jurisprudence of regional and national courts that recognizes the human rights impacts of environmental harms.163 There have been rapid developments along all three points of intersection, expanding the frontiers both of human rights law and international environmental law. The human right to a healthy environment, long featured in international soft law instruments, regional human rights instruments, and national constitutions and laws, is yet to be recognized as a legally binding right at the international level. However, the Paris Agreement contains a preambular reference to human rights, thus offering a hook for further integration of human rights concerns into environmental, in particular climate, discourses.

The 2017 draft Global Environmental Pact contained a clear articulation of a human right to a healthy environment,164 and successive special rapporteurs on Human Rights and the Environment have proposed the adoption of such a right at the international level.165 Procedural rights relating to the environment, as discussed earlier, are being increasingly recognized and respected. The jurisprudence of regional and national human rights bodies on environmental matters has increased exponentially, and as these bodies are exposed to environmental principles and sensibilities, they are tapping into a rich vein of cross-fertilization. Indeed, one of the most path-breaking decisions in international environmental law to emerge in recent times did so from a regional human rights body. In an advisory opinion, in response to a request from Colombia, the IACtHR went as far as to opine that the jurisdiction and responsibility of states under the 1969 American Convention on Human Rights extend to those outside their territory whose human rights have been violated by transboundary environmental harm originating from that state.166 More broadly, there is evidence of ‘converging trends towards greater uniformity and certainty’ in understanding human rights in relation to environmental harms.167

This trend towards greater convergence and integration is also evident in relation to migration168 and disasters.169 Although historically international environmental law and the law relating to migration rarely intersected, growing understanding that (p. 27) environmental factors drive forced and voluntary migration,170 has led to increasing convergence in these two areas, in particular as applied to climate change. The UN climate change regime has, in the last decade, begun to engage with the human costs of climate impacts, including forced and voluntary migration caused by sudden-onset and slow-onset climate events, respectively.171 Meanwhile, the legal framework for migration has also begun to address the humanitarian consequences of large scale climate-related displacement and migration, as in the Global Compact for Migration and the Sendai Framework.172 The developments in the climate change and migration fields are converging towards an integrated ‘law of environmental migration’.173

Similarly, as the scale and frequency of disasters caused by sudden-onset and slow-onset climatic events is becoming evident, the legal framework governing disasters is increasingly intersecting and converging with international environmental law.174 However, such intersections are still in their infancy. While some principles of international environmental law, such as those relating to compensation, are widely reflected in disaster law, others, such as precaution, are absent.175 The rising ecosystem-based disaster risk reduction (Eco-DRR) movement, as well as the demand for an effective international response to disaster migrants, suggests that there will be rapid developments at this interface as well.176

Finally, at the interface of international environmental law with armed conflict, there is also a pull towards integration. In addition to international humanitarian law, international criminal law, and international human rights law, norms of international environmental law are also beginning to shape the protection of the environment during conflict.177

International environmental law is increasingly encountering, enriching, and expanding other specialized bodies of international law from trade and investment, to human rights and armed conflict. In the process, international environmental law is expanding its frontiers, demonstrating maturity, and reflecting the real-world complexity in addressing ‘super wicked’ environmental challenges such as climate change.178 International environmental law’s increasing encounters with other regimes (p. 28) have resulted in colliding ‘objectives and values’, exposed differing motivations, and unearthed new sites of conflict and contestation, but it has also presented valuable opportunities for accommodation and integration. It has, moreover, multiplied the sites at which international environmental law is made, interpreted, applied, and implemented. International environmental law is richer, and perhaps more effective as a result.

V.  Conclusion: Is International Environmental Law Fit for Purpose?

The last decade has been a period of rapid, responsive change for international environmental law. The geo-political, social, economic, epistemic, and cultural context within which international environmental law is set has changed in fundamental ways, fostering legal experimentation and triggering an expansion in the scope, content, and reach of international environmental law. There is increasing maturity in the interpretation of the content of customary norms, principles, and techniques; a change in focus towards more facilitative and procedural modes and implementation over rule-making, with a concomitant nuancing of concepts of differentiation and an enhanced role for soft law; and greater diversification in the participating actors and sites of international environmental law activity, including a growing judicialization of the field. The frontiers of international environmental law are also expanding to accommodate, engage, and integrate with legal efforts in many other fields, reflecting gradual tailoring of the discipline to the nature of the problem it addresses—complex, polycentric, and intractable global environmental harms. International environmental lawyers, diplomats, and other stakeholders are demonstrating remarkable ingenuity, creativity, and passion in stretching international environmental law to its limits to address existential environmental harms.

Nevertheless, international environmental law’s achievements in environmental terms are modest. Much of international environmental law’s promise and potential has been explored in these last few decades, and it is fast approaching the limits of its ability to influence state behaviour. As developments in the climate change regime demonstrate, notwithstanding hair-raising twists and turns in response to geo-political shifts, and breath-taking legal experimentation and innovation,179 the international community is still taking a collective leap of faith in the Paris Agreement, which may well (p. 29) stop short of averting catastrophic climate change. The world has arrived at biosphere tipping points—the edge of a precipice, beyond which lies irreversible environmental harm that fundamentally compromises life support systems.180 If the world is facing a state of ‘planetary emergency,’181 it does beg the question whether international environmental law is fit for purpose, and whether, for all its sophistication and maturity as a sub-discipline of international law, it is fundamentally limited. International environmental law, like other fields of international law, is hostage to national sovereignty, and political will and its limits are equally the limits of international law.

Daniel Bodansky, Jutta Brunnée, and Ellen Hey concluded their introduction to the first edition of the Oxford Handbook of International Environmental Law by posing the question ‘Is international environmental law a distinct field?’182 Concluding that it is a distinct and indeed sophisticated field of international law today, the introduction to the second edition instead concludes by posing the question ‘Is international environmental law fit for purpose’? The third edition, it is hoped, will conclude that it is, and illustrate the ways in which it came to be so. Or if it does not, track the changes to new paradigms and approaches that better suit the complexity of environmental challenges in a world of planetary constraints.183

There are clear limits to what international environmental law—set squarely within the current architecture of international law and hostage to national will and power politics—can do and can be expected to do.184 If international environmental law is to do more, it must move beyond the constraints of the current architecture and framing, and embrace a fundamental reconceptualization of existing models of governance, whether economic, political, social, or legal.185 Such reconceptualization is already underway and is gaining ground, from the increasing traction that Earth jurisprudence has received,186 to the judicial efforts to deterritorialize international environmental law.187 At the scale required, fundamental realignments, demand imagination—imagination that is both outrageous, and fuelled by outrage. In its absence, humanity’s answer to this poignant question posed by the Irish poet, Theo Dorgan will be one steeped in unrelenting regret and sadness.

(p. 30)

  • The Question
  • When the great ships come back, and come they will, when they stand in the sky all over the world, candescent suns by day, radiant cathedrals in the night, how shall we answer the question:
  • What have you done with what was given you, what have you done with the blue, beautiful world?

Theo Dorgan (2015)188


1  Labelled Australia’s ‘black summer’ in keeping with naming fires based on the day or locality—Ash Wednesday 1983, Canberra bushfires 2003, and Black Saturday 2009: Scott Morrison, ‘Speech Prime Minister: Condolence—Bushfires’ (4 February 2020) <https://www.pm.gov.au/media/condolence-bushfires> accessed 23 September 2020. See also Lesley Hughes et al, Summer of Crisis (Climate Council of Australia 2020); Commonwealth Scientific and Industrial Research Organisation (CSIRO), Climate and Disaster Resilience: Technical Report (CSIRO 2020) 52.

2  Coined in the 1980s by Eugene Stoermer and popularized around 2000 by Paul Crutzen, the term describes the current geological epoch, emphasizing the major and ongoing impacts of human activities on the Earth and atmosphere at all scales: Paul Crutzen and Eugene Stoermer, ‘The “Anthropocene” ’ Global Change Newsletter, 41 (2000): 17; Will Steffen et al, ‘The Anthropocene: Conceptual and Historical Perspectives’ Philosophical Transactions of the Royal Society, 369/1938 (2011): 842.

3  Daniel Bodansky, Jutta Brunnée, and Ellen Hey, ‘International Environmental Law: Mapping the Field’ in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (1st edn, OUP 2008) 1, 2.

4  See Chapter 3, ‘Origin and History’, in this volume.

5  Ban Ki-moon, ‘Opening Remarks at 2014 Climate Summit’ (23 September 2014) <https://www.un.org/sg/en/content/sg/speeches/2014-09-23/opening-remarks-2014-climate-summit> accessed 23 September 2020; and more recently, António Guterres, ‘Remarks on Climate Change’ (10 September 2018) <https://www.un.org/sg/en/content/sg/speeches/2018-09-10/remarks-climate-change> accessed 23 September 2020.

6  See eg IPCC, Global Warming of 1.5ºC—Special Report (2018) 4–12; IPCC, Climate Change 2014: Synthesis Report (2014) 4–16, 20; IPCC, Climate Change 2007: Synthesis Report (2007) 5–14; United Nations Environment Programme (UNEP), Emissions Gap Report (2019); World Meteorological Organisation (WMO), United in Science 2020: A multi-organisation high-level compilation of the latest climate science information (2020) <https://public.wmo.int/en/resources/united_in_science> accessed 23 September 2020; Chapters 29 and 15, ‘Climate Change’ and ‘Science’, in this volume.

7  Quoted in UN Framework Convention on Climate Change (FCCC), ‘WMO: Greenhouse Gas Levels in Atmosphere Reach New Record’ (22 November 2018) <https://unfccc.int/news/wmo-greenhouse-gas-levels-in-atmosphere-reach-yet-another-high> accessed 23 September 2020.

8  UNEP, ‘GEO-6 key messages’ <https://www.unenvironment.org/resources/assessment/geo-6-key-messages> accessed 23 September 2020; UNEP, GEO-6: Healthy Planet, Healthy People (2019).

9  Set in 2010, the twenty Aichi Biodiversity Targets are structured around five strategic goals relating to the underlying causes of biodiversity loss, direct pressures on biodiversity, the status of biodiversity, enhancing the benefits to all from biodiversity, and enabling the implementation of the Strategic Plan for Biodiversity 2011–2020: Secretariat of the Convention on Biological Diversity (CBD), ‘Aichi Biodiversity Targets’ (18 September 2020) <https://www.cbd.int/sp/targets/> accessed 23 September 2020.

10  Secretariat of the CBD, Global Biodiversity Outlook 5 (2020) Summary for Policymakers, 10.

11  Jessica Clement, ‘Global number of internet users 2005–2019’ Statista (7 January 2020) <https://www.statista.com/statistics/273018/number-of-internet-users-worldwide/> accessed 23 September 2020.

12  Esteban Ortiz-Ospina, ‘The rise of social media’ Our World in Data (18 September 2019) <https://ourworldindata.org/rise-of-social-media> accessed 23 September 2020.

13  In 2019, the Anthropocene Working Group voted in favour of designating the Anthropocene as a formal unit in the geological time scale and plan to formalize a proposal to the International Commission on Stratigraphy, the body overseeing the geological time scale: Working Group on the ‘Anthropocene’, ‘Results of binding vote by AWG: Released 21st May 2019’ Subcommission on Quaternary Stratigraphy <https://quaternary.stratigraphy.org/working-groups/anthropocene/> accessed 23 September 2020. For geological literature on the Anthropocene see eg Steffen et al (n 2); Will Steffen et al, ‘Trajectories of the Earth System in the Anthropocene’ Proceedings of the United States of America, 115/33 (2018): 8252; Jan Zalasiewicz et al, The Anthropocene as a Geological Time Unit: A Guide to the Scientific Evidence and Current Debate (CUP 2019). For legal perspectives see eg Nicholas Robinson, ‘Fundamental Principles of Law for the Anthropocene’ Environmental Policy and Law, 44/1–2 (2014): 13; Louis Kotzé (ed), Environmental Law and Governance for the Anthropocene (Hart Publishing 2017); Emily Webster and Laura Mai, ‘Transnational Environmental Law in the Anthropocene’ Transnational Legal Theory, 11/1–2 (2020): 1.

14  Extinction Rebellion, ‘About Us’ <https://rebellion.global/about-us/> accessed 23 September 2020.

15  Fridays for Future, ‘Who we are’ <https://fridaysforfuture.org/what-we-do/who-we-are/> accessed 23 September 2020.

16  Chapter 38, ‘Non-State Actors’, in this volume.

17  See eg the EcoArt Project that uses art to mobilize climate change action: EcoArt Project, ‘Channeling the forces of art & design to inspire climate change action’ <https://www.ecoartproject.org/#mission> accessed 23 September 2020.

18  See eg the series published in The Guardian of twenty original poems on climate change: ‘Keep it in the ground: a poem a day’ The Guardian (20 November 2015) <https://www.theguardian.com/environment/series/keep-it-in-the-ground-a-poem-a-day> accessed 23 September 2020.

19  Brett Milano, ‘Don’t Drink The Water: How The Environmental Movement Shaped Music’ uDiscover Music (21 April 2020) <https://www.udiscovermusic.com/stories/environmental-movement-in-music/> accessed 23 September 2020.

20  Adeline Johns-Putra, ‘Climate Change in Literature and Literary Studies: From Cli-fi, Climate Change Theatre and Ecopoetry to Ecocriticism and Climate Change Criticism’ WIREs Climate Change 7/2 (2016): 266.

21  ‘Perfect Storms: Writing Oryx and Crake’ in Margaret Atwood, Curious Pursuits: Occasional Writing (Virago Press 2005) 321–323.

22  Chapter 13, ‘Ethical Considerations’, in this volume; Report of the United Nations Conference on Environment and Development (UN 1993) vol I, annex I— ‘Rio Declaration on Environment and Development’, principle 7; 1992 UNFCCC, art 1.3; Decision COP V/ 6, ‘Ecosystem Approach’ (2000) UN Doc UNEP/CBD/COP/DEC/V/6.

23  Chapter 14, ‘Earth Jurisprudence’, in this volume.

24  See eg the rights of nature in the Constitution of the Republic of Ecuador 2008, preamble, arts 71–74; the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (New Zealand) recognizing the Whanganui River as a legal person, s 14; and India’s court ruling that the Ganges river has legal personhood: Mohd. Salim v State of Uttarakhand & others Writ Petition (PIL) No 126/2014 (Order of High Court of Uttarakhand, 20 March 2017). See Chapter 14, ‘Earth Jurisprudence’, in this volume.

25  Chapter 42, ‘Indigenous Peoples’, in this volume. See also Chapter 2, ‘Discourses’, in this volume.

26  Chapter 11, ‘Global South Approaches’, in this volume.

27  Ibid; Chapter 19, ‘Differentiation’, in this volume.

28  Chapter 12, ‘Feminist Approaches’, in this volume.

29  Ibid; Rio Declaration (n 22) principle 20.

30  See generally Chapters 10 and 41, ‘Economics’ and ‘Business and Industry’, in this volume.

31  See eg Natalie Jones and Geert van Calster, ‘Waste Regulation’ in Emma Lees and Jorge Viñuales (eds), The Oxford Handbook of Comparative Environmental Law (OUP 2019) 607, 607–625; Alexander Gillespie, Waste Policy: International Regulation, Comparative and Contextual Perspectives (Edward Elgar 2015) 73, 73–85; Martijn Wilder and Lauren Drake, ‘International Law and the Renewable Energy Sector’ in Cinnamon Carlarne, Kevin Gray, and Richard Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (OUP 2016) 357, 357–387.

32  Over 6,000 representatives of NGOs and business and approximately 2,800 press attended the Paris Conference: Daniel Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’ The American Journal of International Law, 110/2 (2016): 288, 291. See also UNFCCC, ‘Statistics on Participation and In-Session Engagement’ <https://unfccc.int/process-and-meetings/parties-non-party-stakeholders/non-party-stakeholders/statistics-on-non-party-stakeholders/statistics-on-participation-and-in-session-engagement> accessed 25 February 2021.

33  See the World Resource Institute’s Climate Analysis Indicator Tool (CAIT), which compiles figures on global and national emissions: World Resource Institute (WRI), ‘CAIT Climate Data Explorer’ <https://cait.wri.org/> accessed 23 September 2020.

34  Chapters 9 and 19, ‘International Relations Theory’ and ‘Differentiation’, in this volume.

35  See Branko Milanovic, The Haves and the Have-Nots: A Brief and Idiosyncratic History of Global Inequality (Basic Books 2011) 115–119, finding that if country averages are broken down into actual incomes received by people in each country ‘practically all people living in a richer country are better off than all people living in a poorer country’ and that the ‘poorest Americans are better off than two-thirds of the world population’.

36  International Energy Agency (IEA), Energy Access Outlook 2017: From Poverty to Prosperity (2017) 40.

37  IEA, World Energy Outlook 2018 (2018) 27.

38  See Chapters 29 and 33, ‘Climate Change’ and ‘Hazardous Substances and Activities’, in this volume.

39  The United States announced its withdrawal from the Paris Agreement in June 2017: Donald Trump, ‘Statement by President Trump on the Paris Climate Accord’ White House (1 June 2017) <https://www.whitehouse.gov/the-press-office/2017/06/01/statement-president-trump-parisclimate-accord> accessed 23 September 2020.

40  Rodrigo Viga Gaier, ‘Brazil’s Bolsonaro scraps pledge to quit Paris climate deal’ Reuters (25 October 2018) <https://uk.reuters.com/article/uk-brazil-election/brazils-bolsonaro-scraps-pledge-to-quit-paris-climate-deal-idUKKCN1MZ1CR> accessed 23 September 2020; Lisa Viscidi and Nate Graham, ‘Brazil was a global leader on climate change. Now it’s a threat’ Foreign Policy (4 January 2019) <https://foreignpolicy.com/2019/01/04/brazil-was-a-global-leader-on-climate-change-now-its-a-threat/> accessed 23 September 2020. In 2020 Brazil introduced a new first nationally determined contribution under the Paris Agreement that arguably reflects a downgrading of earlier commitments: see ‘Brazil First NDC, Updated Submission’ UNFCCC (8 December 2020) <https://www4.unfccc.int/sites/NDCStaging/Pages/Party.aspx?party=BRA> accessed 25 February 2021; Climate Action Tracker (CAT), ‘Climate Target Update Tracker: Brazil’ (9 December 2020) <https://climateactiontracker.org/climate-target-update-tracker/brazil/> accessed 25 February 2021.

41  Oliver Stuenkel, ‘International Pressure can save the Amazon from Bolsonaro’ Financial Times (10 August 2020) <https://www.ft.com/content/0f97c674-b7aa-4ec4-8fa1-88b810bc3dc7> accessed 23 September 2020.

42  Alexander Zaitchik, ‘Rainforest on fire’ The Intercept (6 July 2019) <https://theintercept.com/2019/07/06/brazil-amazon-rainforest-indigenous-conservation-agribusiness-ranching/> accessed 23 September 2020.

43  Haris Zargar, ‘India’s Modi dismantles environmental safeguards’ New Frame (30 July 2020) <https://www.newframe.com/indias-modi-dismantles-environmental-safeguards/> accessed 23 September 2020. See generally Navroz Dubash and Shibani Ghosh, ‘The Ecological Costs of doing Business: Environment, Energy and Climate Change’ in Niraja Gopal Jayal (ed), Re-forming India: the Nation Today (Penguin 2019) 254.

44  See eg the impact of COVID-19 related lockdowns on migrant workers in India: Sohini Sengupta and Manish Jha, ‘Social Policy, COVID-19 and Impoverished Migrants: Challenges and Prospects in Locked Down India’ The International Journal of Community and Social Development, 2/2 (2020): 152.

45  Charlotte Edmond, ‘How face masks, gloves and other coronavirus waste is polluting our ocean’ World Economic Forum (11 June 2020) <https://www.weforum.org/agenda/2020/06/ppe-masks-gloves-coronavirus-ocean-pollution/> accessed 23 September 2020. See generally Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume. The Basel Convention Secretariat has advised that used PPE should be treated as hazardous waste and disposed of separately from household wastes. For further discussion of the 1989 Basel Convention, see Chapter 33, ‘Hazardous Substances and Activities’, in this volume.

46  Researchers estimate that daily CO2 emissions decreased by 17% in April 2020, and that annual emissions in 2020 are likely to reduce by 4 to 7%: Corinne Le Quéré et al, ‘Temporary reduction in daily global CO2 emissions during the COVID-19 forced confinement’ Nature Climate Change, 10 (2020): 647.

47  CAT, ‘Climate Target Update Tracker’ <https://climateactiontracker.org/climate-target-update-tracker/> accessed 25 February 2021.

48  Jeffrey Gettleman, ‘Coronavirus Crisis Shatters India’s Big Dreams’ The New York Times (5 September 2020) <https://www.nytimes.com/2020/09/05/world/asia/india-economy-coronavirus.html> accessed 23 September 2020. See also International Monetary Fund, World Economic Outlook: A Long and Difficult Ascent (2020) 21; World Bank, Global Economic Prospects (June 2020) 5.

49  Cameron Hepburn et al, ‘Will COVID-19 fiscal recovery packages accelerate or retard progress on climate change?’ Oxford Review of Economic Policy, 36/1 (2020): 359.

50  Mayank Aggarwal, ‘India’s plan to revive its flailing economy by boosting coal production is deeply flawed’ Scroll (2 August 2020) <https://scroll.in/article/967951/indias-plan-to-revive-its-flailing-economy-by-boosting-coal-production-is-deeply-flawed> accessed 23 September 2020.

51  Some governments, usually led by women, have acted more decisively and effectively than others: Supriya Garikipati and Uma Kambhampati, ‘Leading the Fight Against the Pandemic: Does Gender ‘Really’ Matter?’ University of Reading, Discussion Paper No 2020-13 (3 June 2020) <https://www.reading.ac.uk/web/files/economics/emdp202013.pdf> accessed 23 September 2020.

52  See Chapter 47, ‘Disaster’, in this volume.

53  See Chapter 40, ‘Epistemic Communities’, in this volume.

54  See Chapter 2, ‘Discourses’, in this volume.

55  Ibid.

56  Division for Sustainable Development Goals (DSDG) in the United Nations Department of Economic and Social Affairs (UNDESA), ‘The 17 Goals’ <https://sdgs.un.org/goals> accessed 25 September 2020.

57  United Nations General Assembly (UNGA) Res 70/1, ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (21 October 2015) UN Doc A/RES/70/1.

58  Chapter 2, ‘Discourses’, in this volume.

59  Chapter 30, ‘Freshwater Resources’, in this volume.

60  Chapter 16, ‘Harm Prevention’, in this volume.

61  Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica/Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua/Costa Rica) (Judgement) [2015] ICJ Rep 665. See generally discussion in Chapters 23 and 27, ‘Customary International Law and the Environment’ and ‘Judicial Development’, in this volume.

62  On the duty of good faith, more generally, see Chapter 22, ‘Good Faith’, in this volume.

63  Chapter 23, ‘Customary International Law and the Environment’, in this volume.

64  Chapter 16, ‘Harm Prevention’, in this volume.

65  See Chapter 24, ‘Multilateral Environmental Treaty Making’, in this volume.

66  Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (4th edn, CUP 2018) 197–251.

67  See Chapters 17, 18, 19, and 20, ‘Sustainable Development’, ‘Precaution’, ‘Differentiation’, and ‘Equity’, in this volume.

68  Chapter 17, ‘Sustainable Development’, in this volume.

69  Chapter 18, ‘Precaution’, in this volume.

70  UNGA Res 72/277, ‘Towards a Global Pact for the Environment’ (14 May 2018) UN Doc A/RES/72/277.

71  See Chapter 5, ‘Fragmentation’, in this volume.

72  In keeping with a more general trend in international law of treaty stagnation: Joost Pauwelyn, Ramses Wessel, and Jan Wouters, ‘When Structures Become Shackles: Stagnation and Dynamics in International Lawmaking’ European Journal of International Law, 25/3 (2014): 733.

73  See Chapter 6, ‘Instrument Choice’, in this volume.

74  See Chapters 53 and 10, ‘Market Mechanisms’ and ‘Economics’, in this volume.

75  See Chapter 53, ‘Market Mechanisms’, in this volume.

76  ICAO Res A39-3, ‘Consolidated Statement of Continuing ICAO Policies and Practices related to Environmental Protection—Global Market-based Measure (MBM) Scheme’ (27 September–6 October 2016). See Chapter 34, ‘Aviation and Maritime Transport’, in this volume.

77  art 6. See Chapters 29 and 53, ‘Climate Change’ and ‘Market Mechanisms’, in this volume.

78  Chapter 53, ‘Market Mechanisms’, in this volume.

79  Chapter 6, ‘Instrument Choice’, in this volume.

80  See Chapters 33 and 29, ‘Hazardous Substances and Activities’ and ‘Climate Change’, in this volume.

81  See Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume.

82  See Chapter 29, ‘Climate Change’, in this volume.

83  Ibid.

84  See Chapter 52, ‘Transparency Procedures’, in this volume.

85  Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

86  Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.

87  Ibid.

88  See Chapter 21, ‘Public Participation’, in this volume.

89  Chapters 52 and 21, ‘Transparency Procedures’ and ‘Public Participation’, in this volume.

90  Chapter 45, ‘Human Rights’, in this volume.

91  Ibid.

92  United Nations Human Rights Council (OHCHR), ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (24 January 2018) UN Doc A/HRC/37/59, and Chapter 45, ‘Human Rights’, in this volume.

93  See Chapter 23, ‘Customary International Law and the Environment’, in this volume.

94  Chapter 21, ‘Public Participation’, in this volume.

95  Chapter 29, ‘Climate Change’, in this volume.

96  Ibid; art 2.

97  ICAO Res A40-18, ‘Consolidated statement of continuing ICAO policies and practices related to environmental protection—Climate change’ (2019). See Chapter 34, ‘Aviation and Maritime Transport’, in this volume.

98  Chapter 32, ‘Wildlife’, in this volume.

99  Montreal Protocol on Substances that Deplete the Ozone Layer.

100  Chapter 34, ‘Aviation and Maritime Transport’, in this volume.

101  See generally Lavanya Rajamani, Innovation and Experimentation in the International Climate Change Regime (vol 41, Collected Courses of the Hague Academy of International Law (Recueil des Cours), Brill 2020); Lavanya Rajamani, ‘The 2015 Paris Agreement: Interplay Between Hard, Soft and Non-Obligations’ Journal of Environmental Law, 28/2 (2016): 337; Chapter 29, ‘Climate Change’, in this volume.

102  UN, ‘Report of the United Nations Conference on the Human Environment’ (5-16 June 1972) UN Doc A/CONF.48/14/Rev.1, 3, ch 1—‘Declaration of the United Nations Conference on the Human Environment’.

103  Rio Declaration (n 22).

104  Chapter 3, ‘Origin and History’, in this volume.

105  Chapter 26, ‘Private and Quasi-Private Standards’, in this volume.

106  Chapter 25, ‘Soft Law’, in this volume.

107  Ibid.

108  Ibid.

109  Chapter 3, ‘Origin and History’, in this volume.

110  Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume.

111  Chapter 37, ‘Regional Organizations: The European Union’, in this volume.

112  Chapter 30, ‘Freshwater Resources’, in this volume. The amendment to the 1992 UNECE Helsinki Water Convention to allow accession by all UN Member States, even if not ECE members, came into force on 6 February 2013 and gives this treaty potentially global scope: Convention on the Protection and Use of Transboundary Watercourses and International Lakes as amended, along with Decision VI/3 clarifying the accession procedure <https://www.unece.org/env/water/text/text.html> accessed 25 September 2020.

113  See Chapter 3, ‘Origin and History’, in this volume. See also Chapter 5, ‘Fragmentation’, in this volume.

114  See Chapter 28, ‘Transboundary Air Pollution’, in this volume. For example, amendments to the 1999 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-level Ozone made in 2012 and in force from 7 October 2019 extend controls to fine particulate matter, including black carbon: <https://www.unece.org/env/lrtap/multi_h1.html> accessed 25 September 2020.

115  Chapter 24, ‘Multilateral Environmental Treaty Making’, in this volume.

116  See Chapter 36, ‘International Institutions’, in this volume.

117  See Chapters 54 and 55, ‘Financial Assistance’ and ‘Technology Assistance and Transfers’, in this volume. Eg Paris Agreement, arts 9–11, 13.9, 13.10.

118  See Chapter 54, ‘Financial Assistance’, in this volume.

119  Ibid.

120  Ibid.

121  Chapter 55, ‘Technology Assistance and Transfers’, in this volume. See also Chapter 48, ‘Intellectual Property’, in this volume.

122  Chapter 52, ‘Transparency Procedures’, in this volume.

123  The full set of decisions agreed to at the 24th COP to the UNFCCC is characterized as the ‘Paris Rulebook’ <https://unfccc.int/process-and-meetings/the-paris-agreement/paris-agreement-work-programme/katowice-climate-package> accessed 4 February 2020.

124  Chapter 29, ‘Climate Change’, in this volume.

125  Chapter 56, ‘Non-Compliance Procedures’, in this volume.

126  Ibid.

127  Chapter 51, ‘Compliance Theory’, in this volume.

128  Chapter 57, ‘Effectiveness’, in this volume.

129  See eg Chapters 54, 56, and 57, ‘Financial Assistance’, ‘Non-Compliance Procedures’, and ‘Effectiveness’, in this volume.

130  Chapter 57, ‘Effectiveness’, in this volume.

131  Chapter 59, ‘National Implementation’, in this volume.

132  Chapter 58, ‘International Environmental Responsibility and Liability’, in this volume.

133  Chapter 39, ‘Sub-National Actors’, in this volume.

134  See eg Lennart Wegener, ‘Can the Paris Agreement Help Climate Change Litigation and Vice Versa?’ Transnational Environmental Law, 9/1 (2020): 17.

135  Chapter 60, ‘International Environmental Law Disputes before International Courts and Tribunals’, in this volume.

136  Ibid and Chapter 27, ‘Judicial Development’, in this volume.

137  Chapter 27, ‘Judicial Development’, in this volume.

138  Chapter 60, ‘International Environmental Law Disputes before International Courts and Tribunals’, in this volume.

139  Chapter 27, ‘Judicial Development’, in this volume.

140  Chapter 44, ‘Investment’, in this volume.

141  See Part IX, ‘International Environmental Law in National/Regional Courts’, in this volume, covering the jurisdictions of Africa, China, EU/UK, India, Bangladesh, and Pakistan, North America, Oceania, and South America, for a range of examples.

142  See eg Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (CUP 2015); Jacqueline Peel and Hari Osofsky, ‘A Rights Turn in Climate Change Litigation?’ Transnational Environmental Law, 7/1 (2018): 37; Joana Setzer and Lisa Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’ WIREs Climate Change, 10/3 (2019): 1; Joana Setzer and Rebecca Byrnes, ‘Global Trends in Climate Change Litigation: 2020 Snapshot’ Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science (3 July 2020); Jacqueline Peel and Jolene Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ American Journal of International Law, 113/4 (2019): 679.

143  Chapter 41, ‘Business and Industry’, in this volume.

144  Chapters 38 and 39, ‘Non-State Actors’ and ‘Sub-National Actors’, in this volume.

145  ‘Global Climate Action portal’ <https://climateaction.unfccc.int/> accessed 23 September 2020.

146  ‘We are all still in’ <https://www.wearestillin.com/> accessed 23 September 2020. See also Chapter 39, ‘Sub-National Actors’, in this volume.

147  Chapter 21, ‘Public Participation’, in this volume.

148  ‘Global Partnership on Marine Litter’ <https://www.unenvironment.org/gpml/> accessed 23 September 2020.

149  Chapter 35, ‘The State’, in this volume.

150  Ibid.

151  Ibid.

152  Neil Gunningham, ‘Environment Law, Regulation and Governance: Shifting Architectures’ Journal of Environmental Law, 21/2 (2009): 179.

153  See Chapter 4, ‘Multilevel and Polycentric Governance’, in this volume.

154  See Part IX, ‘International Environmental Law in National/Regional Courts’, in this volume.

155  Chapter 43, ‘Trade’, in this volume.

156  Ibid.

157  Ibid.

158  Chapter 44, ‘Investment’, in this volume.

159  Ibid.

160  Chapter 49, ‘Energy’, in this volume.

161  Ibid.

162  Chapter 48, ‘Intellectual Property’, in this volume.

163  Chapter 45, ‘Human Rights’, in this volume.

164  Le Club des Juristes: International Group of Experts for the Pact, ‘Draft Global Pact for the Environment by the IGEP’ (La Sorbonne, 24 June 2017) <https://globalpactenvironment.org/uploads/EN.pdf> accessed 15 September 2020. See also UNGA Res 72/277 (n 70).

165  Under Human Rights Council resolution 37/8, Special Rapporteur on Human Rights and the Environment, John Knox, recommended that the General Assembly recognize the human right to a safe, clean, healthy, and sustainable environment: UNGA, ‘Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (19 July 2018) UN Doc A/73/188. See also Chapter 45, ‘Human Rights’, in this volume.

166  State Obligations in Relation to the Environment (Advisory Opinion) IACtHR (2017) OC-23/17 (State Obligations case) [77]–[78].

167  Chapter 45, ‘Human Rights’, in this volume.

168  Chapter 46, ‘Migration’, in this volume.

169  See Chapter 47, ‘Disaster’, in this volume.

170  See Chapter 46, ‘Migration’, in this volume.

171  Ibid. See also Paris Agreement; 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’ (15 March 2011) UN Doc FCCC/CP/2010/7/Add.1, 2.

172  Chapter 46, ‘Migration’, in this volume; ‘Global Compact for safe, orderly and regular migration’ (13 July 2018) <https://refugeesmigrants.un.org/sites/default/files/180713_agreed_outcome_global_compact_for_migration.pdf> accessed 25 September 2020; UNGA Res 69/283, ‘Sendai Framework for Disaster Risk Reduction 2015–2030’ (23 June 2015) UN Doc A/RES/69/283.

173  Chapter 46, ‘Migration’, in this volume.

174  Chapter 47, ‘Disaster’, in this volume.

175  Ibid.

176  Ibid.

177  Chapter 50, ‘Armed Conflict’, in this volume.

178  For ‘super wicked’ in the context of climate: Richard Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ Cornell Law Review, 94/5 (2009): 1153. See also Daniel Bodansky, Jutta Brunnée, and Lavanya Rajamani, International Climate Change Law (OUP 2017) 2–4.

179  Rajamani, ‘Innovation and Experimentation’ (n 101).

180  See the IPCC’s finding that continued GHG emissions will cause ‘further warming’ and increase the likelihood of ‘severe, pervasive and irreversible impacts’: IPCC, Climate Change 2014 (n 6) 7. See also the finding of ‘robust differences’ between limiting warming to 1.5°C and 2°C, with possible irreversible consequences at higher temperatures: IPCC, Global Warming of 1.5ºC (n 6) 7–8. And further Timothy Lenton et al, ‘Climate Tipping Points—Too Risky To Bet Against’ Nature, 575 (2019): 592 <https://www.nature.com/articles/d41586-019-03595-0> accessed 25 September 2020.

181  Lenton et al, ibid, 595.

182  Bodansky, Brunnée, and Hey (n 3) 24.

183  Duncan French and Louis Kotzé (eds), Research Handbook on Law, Governance and Planetary Boundaries (Edward Elgar 2021).

184  See generally Chapter 8, ‘Legal Imagination and Teaching’, in this volume.

185  See generally Chapter 7, ‘Scholarship’, in this volume.

186  See Chapter 14, ‘Earth Jurisprudence’, in this volume.

187  State Obligations case (n 166).

188  Theo Dorgan, ‘A climate change poem for today: The Question by Theo Dorgan’ The Guardian (1 June 2015) <https://www.theguardian.com/environment/2015/jun/01/a-climate-change-poem-for-today-the-question-by-theo-dorgan> accessed 25 September 2020.