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Alina Averchenkova, Sam Fankhauser and Michal Nachmany

Chapter 1 offers an overview of the book and summarizes the state and trends in climate change legislation. Making use of a unique global database, Climate Change Laws of the World, the chapter identifies over 1,200 climate change laws and policies of similar stature in the 164 countries the data covers. This stock of laws is the result of over 20 years of policy making and speaks to the growing attention that legislators are devoting to climate change. In 1997, at the time the Kyoto Protocol was signed, there were only about 60 relevant laws and policies. Countries use different routes to address climate change. In some countries the primary avenue is acts of parliament, that is, formal laws passed by the legislative branch. In others, the policy direction is defined through executive orders, decrees and strategies. Climate change laws also differ in scope and ambition. Some laws are specifically focused on climate change, advancing explicitly emissions reduction or adaptation targets. Others introduce climate concerns into sector policies, such as those on energy, or broader development plans. Understanding these different approaches becomes increasingly important as countries implement their pledges under the Paris Agreement.

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Contextualising the issue

The Subsidisation of Heavy Polluters under Emissions Trading Schemes

Elena de Lemos Pinto Aydos

Chapter 1 introduces the book and the book chapters. It discusses the exponential increase in anthropogenic greenhouse gas (GHG) emissions in the past decades and outlines the most recent global emissions trends. The chapter then introduces the Paris Agreement and the key domestic climate change policies that are being adopted by countries in order to meet their intended nationally determined contribution (INDCs). Carbon pricing has been increasingly adopted by countries aiming to mitigate GHG emissions. However, even now, many heavy polluters participating in emissions trading schemes (ETSs) are not paying the full price of carbon. Keywords: climate change – greenhouse gas (GHG) emissions – Paris Agreement – intended nationally determined contribution (INDCs) – carbon taxes – emissions trading schemes (ETSs)

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Ed Couzens, Alexander Paterson and Sophie Riley

This chapter begins with an explanation of the various threats facing, first, marine biodiversity and, second, biodiversity in forests. Both suffer from numerous threats and from the increased cumulative impact of these threats. The chapter then considers the legal framework for governance of marine biodiversity, explaining that there have been four major documents or instruments which have driven this legal development more than have any others: Huig de Groot’s pamphlet Mare Liberum, published in 1609; the judgment in 1898 of the arbitral tribunal in the Bering Sea Fur Seals Arbitration; the Proclamation by US President Truman in 1945 of a ‘Policy with Respect to Coastal Fisheries in Certain Areas of the High Seas’; and finally the United Nations Convention on the Law of the Sea (UNCLOS) (adopted 1982, entered into force 1994). A fifth may soon be adopted – if current efforts toward a global convention on the protection of biodiversity in areas beyond national jurisdiction are successful. In addition to these, there are hundreds of relevant international instruments, of global, regional and bilateral scope. In contrast, it is explained, there is little international regulation of forests, with many of the most relevant instruments being of a non-binding nature, such as the Forest Principles of 1992. In the face of this absence of regulatory instruments, recourse must be had to instruments of a more general nature. In conclusion, similarities and differences are highlighted between the regulatory regimes for forests and the marine environment, and it is noted that while one is arguably over-, and the other under-, regulated, neither is having the desired effect, and biodiversity is declining in both. That neither approach is working effectively is instructive, and a topic worth further study.

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Erkki J. Hollo

The introductory note gives on overview of the main characteristics and structures of law relating to water management. The legal roots go far back into ancient cultures. In modern laws water resources are classified as public and private waters. Accordingly, in national laws property rights to waters are regulated differently. The differences are not relevant for planning and decision-making in matters concerning water management projects because here public interests and environmental concerns are decisive. International water law aims at solving conflicts between states concerning transboundary and international waters. This implies certain limitations on state sovereignty and respect for the interests of other parties to a watercourse. The leading principles have to some extent been developed on the basis of national models. One deficiency concerning compliance with international commitments is the lack of efficient control and practical sanctions, in particular in cases of hostile or careless neighbours. Keywords: Introduction (Hollo): International water law, European water law, water rights, basin principle, water governance

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A Handbook

Andreas Philippopoulos-Mihalopoulos and Victoria Brooks

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Anna Grear

Law’s paradigmatic subject has been criticized, especially by feminist theorists, as being relatively invulnerable, complexly disembodied, rationalistic and separative. This is a subject at a constructed ‘centre’ for whom living materiality – even the human body itself – is merely an extended, object-ified periphery – and for whom epistemological mastery and a scopophilic view ‘from nowhere’ reflects a relentlessly assumed ontological priority. Against the impugned Cartesian and Kantian assumptions underlying traditional liberal legal subjectivity, and its subject-object relations, this chapter explores the theoretical gains offered by foregrounding, in place of the ‘autonomous liberal subject’, the notion of vulnerable, embodied eco-subjectivities explicitly interwoven within a vulnerable ecology. What implications could or should such a theoretical approach have for environmental law and processes? What might replace the binary subject-object relations assumed by the autonomous liberal subject, and what kind of juridical imaginary might be instituted by foregrounding the openness and affectability of vulnerability?

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Douglas Fisher

Water in its natural location has traditionally been regarded as a common resource to be used for the benefit of the community in question. The function of legal rules has been to grant access to the resource: for example, by the conferment of individual rights of access according to the common law or by the grant of such rights according to an institutionalized administrative system. In Australia the legacy of the common law favoured the common law riparian doctrine. The recognition of the unique environmental and climatic conditions in Australia influenced the development during the twentieth century of a public domain regime. This chapter analyzes these developments in Australia in the context of their wider doctrinal context. Keywords: Chapter 1 (Fisher): Common Resource, Roman law, Chinese law, public domain regime, riparian doctrine, Australian water law

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The Role of Law

Edited by Ed Couzens, Alexander Paterson, Sophie Riley and Yanti Fristikawati

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Table of cases

Fostering Environmental Protection

Alice Pirlot

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Benoît Mayer and François Crépeau