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Preface

International Economic Law Perspectives

Edited by Celine Tan and Julio Faundez

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Preface

Carbon Taxes, Energy Subsidies and Smart Instrument Mixes

Edited by Stefan E. Weishaar, Larry Kreiser, Janet E. Milne, Hope Ashiabor and Michael Mehling

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Introduction

International Economic Law Perspectives

Celine Tan and Julio Faundez

The current economic and ecological climate calls for a reappraisal of the international legal and political framework governing natural resources, defined broadly to include materials and organisms naturally occurring in the environment, such as water, mineral and fossil fuels, and cultivated resources, such as food crops, both renewable and exhaustible. This reappraisal is urgent because the governance and management of natural resources have formed a pivotal backdrop to the evolution of international economic law in the post-war period and have been critical components of the process of economic globalization. Contributors to this collection explore the different dimensions of natural resource governance in the contemporary economic, political and legal landscape. They reflect upon and address the different aspects of the conflicts and contradictions arising at the intersection between international economic law, sustainable development and other areas of international law, notably human rights law and environmental law.

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Editorial review board

Carbon Taxes, Energy Subsidies and Smart Instrument Mixes

Edited by Stefan E. Weishaar, Larry Kreiser, Janet E. Milne, Hope Ashiabor and Michael Mehling

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Carbon tax choices: the tale of four states

Carbon Taxes, Energy Subsidies and Smart Instrument Mixes

Janet E. Milne

While carbon tax measures have not yet met with success at the federal level in the United States, proposals for carbon taxes emerged in a handful of states in 2015 and 2016. The proposals address the shared challenge of climate change, but each has its own unique features and setting. Drawing on proposals in Oregon, Massachusetts, Vermont and Washington as case studies, this chapter explores how state constitutions can affect the design of state-level carbon taxes and their legislative route toward enactment. For example, the Oregon constitution imposes limits on tax rates and use of the revenue when taxing certain fossil fuels. The constitutions in three of the four states require that some types of revenue measures must originate in the legislative House of Representatives, not the Senate, raising the question whether carbon taxes can be designed in a manner that will avoid this procedural constraint. In Washington, the carbon tax proposal came forward as a ballot initiative that went to voters in the general election, following a procedure permitted under the state constitution. These case studies serve as an important reminder of how constitutional provisions that were not created with climate change in mind can influence the design features of subnational carbon taxes and political strategies.

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Peter H Sand

This article begins with an assessment of an elderly wildlife-related treaty, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES), and explains both how the convention was originally designed and how its Parties managed to develop it in innovative ways not envisaged by the original drafters. The article then turns to an assessment of the effectiveness of the convention in the modern world, and how an enforcement regime based on trade embargoes has been developed. This success, at least measured by indicators such as length of time it takes for states subject to sanctions to fall back into compliance, aside, the article then proceeds to question effectiveness as measured by indicators with less ‘high face validity’. Through close analysis of the history of trade embargoes, it is demonstrated that by and large it is developing countries that have been the subjects of sanctions under CITES. In view of recent enforcement issues (illustrated by current whaling in the North Pacific), the article concludes by highlighting the quality of trust which, it is argued, is a critical requirement that must underpin the international regime if there is to be true legitimacy and, ultimately, credibility.

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Edited by Ed Couzens and Tim Stephens

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Kerryn Anne Brent

The customary law duty to prevent significant transboundary harm and harm to the global commons (‘no-harm’ rule) has developed considerably since it was first enunciated in the 1938/1941 Trail Smelter arbitration. This article reflects on this development and analyses what implications the 2015 Certain Activities case has for existing understandings of the no-harm rule. The International Court of Justice (ICJ)'s judgment provides greater clarity concerning procedural obligations flowing from the no-harm rule by establishing a positive obligation to ascertain risk and a sequence in which procedural obligations arise. However, it raises questions concerning the nature of the substantive obligation under the no-harm rule. Specifically, whether breach of the substantive obligation is subject to establishing that an activity has resulted in significant transboundary harm. The ambiguity in the Certain Activities case highlights the need to further clarify and develop the content of the no-harm rule to better enable it to contribute to the governance of contemporary transboundary and global environmental problems.

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Bridget M. Hutter

This chapter outlines some of the most prominent environmental issues we face, including changes in our understandings of environmental risks, uncertainties and damage and the inequalities attaching to them. It discusses strategies for managing these risks, focusing in particular on risk and resilience perspectives and the ways in which they relate to environmental law. The chapter introduces the organisation of the book around major themes such as variable perspectives on risk regulation; the compatibility of law with notions of risk and resilience; transnational efforts to manage environmental risks; and the difficulties associated with managing inequalities within and between countries. It concludes with an introduction to some of the emerging governance issues generated by these debates.

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Edited by Bridget M. Hutter