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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)  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.
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.
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.
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.
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.
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.
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.
124 Chapter 29, ‘Climate Change’, in this volume.
125 Chapter 56, ‘Non-Compliance Procedures’, in this volume.
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.
147 Chapter 21, ‘Public Participation’, in this volume.
149 Chapter 35, ‘The State’, in this volume.
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.
158 Chapter 44, ‘Investment’, in this volume.
160 Chapter 49, ‘Energy’, in this volume.
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) –.
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.
173 Chapter 46, ‘Migration’, in this volume.
174 Chapter 47, ‘Disaster’, in this volume.
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).