Transnational environmental law (TEL) is a relatively new term in the environmental law discourse. The scope of TEL encompasses considerably more than either domestic environmental law or international environmental law; it transcends geographical and functional boundaries; and it includes a multifarious range of norms that are created and enforced by multiple state and non-state actors. This chapter seeks to elaborate upon and to unpack the notion of TEL and to understand the steady emergence of TEL as the latest analytical approach focused on those legal norms that govern the human-environment interface in the global sphere. It does so by reflecting on the various considerations that are driving the emergence of TEL including globalisation; the shift of focus from “government to governance”; the issue of fragmentation of international environmental law and governance; and the “radical” idea of the Anthropocene and the increasingly urgent need for enhanced global environmental governance that its imagery calls for. The chapter also reviews the conceptual state of the art by briefly investigating several descriptions of TEL and by identifying and discussing the various processes of transnationalism that are creating TEL. Finally, the chapter applies the TEL framework to the global environmental rights sphere in an attempt to illustrate practically how, and the extent to which, TEL is emerging as a contemporary analytical approach.
International environmental law has a dual nature being both formal (attached to explicit state will) and instrumental (detached from explicit state will). In this chapter it is argued that normativity of international environmental legal norms is relativised due to the softening of hard law and hardening of soft law. The softening of hard law is caused primarily by the interpretative nature of language and the interplay between formalism and instrumentalism as interpretative paradigms. As a consequence, the normative content of hard law is always a matter of interpretation which by default causes hard law to be more or less indeterminate. The hardening of soft law is visible inter alia in the informal legal status that several soft law instruments such as UN resolutions, accords, executive board decisions and informal initiatives may enjoy through their legitimacy and effectiveness. This results in some soft law instruments gaining relative legal effect even when lacking formal legal status. Based on these observations it is concluded that the normativity or validity of legal norms in international environmental law can only be evaluated after a careful analysis of all the traces of normativity (form, legitimacy and effectiveness) at play.
Statements of objectives are widely used in international treaties and national legislation and they perform multiple roles. One role is as a communication and public relations tool. Simple, clear and qualitative objectives such as ‘protecting clean air’ communicate to the general public the broad outcome that is intended to be achieved, thereby building public and political support. A second role is as an aid to interpreting treaties and statutes, although this role should not be overstated. A third role is to provide criteria for success in program review as part of the policy cycle. This chapter explores these roles using sustainable development and climate change as two examples of objectives in practice.
Peter Burdon and Claire Williams
This chapter provides a critical analysis of recent developments granting nature legal rights. After surveying examples it engages with the philosophical and political objections to implementing rights of nature legislation. The critical question guiding this analysis is whether attempts to safeguard the environment through the existence of legal rights advance ecological goals in a sustained and transformative way.
Edited by Douglas Fisher
The quality and the strength of an environmental legal system is a reflection of the conceptual foundations upon which it is constructed. The Research Handbook on Fundamental Concepts of Environmental Law illuminates key aspects of environmental governance through the lens of their underlying dimensions: for example, the form, structure and language of international, regional and national instruments; the function of norms, objectives and standards; and the relevance of economic analysis and of integrated policy formulation.
This chapter addresses the precautionary principle, a principle pervasive in environmental decision-making in many legal systems. The chapter discusses the sources of uncertainty that give rise to the need for precaution and explores why risk regulation and cost-benefit analysis cannot fully address the range of sources of uncertainty for decision-makers. Yet the principle has come under attack because its open-endedness leads to fears that it allows unfettered decision-making that could be anti-scientific and over-reaching. The chapter explores the puzzles of interpretation that give rise to these fears, namely whether the principle should be treated as binding or non-binding, whether it should require some kind of trigger or threshold of risk before it can be invoked, what implications the principle has for the burden of proof for decision-makers, and whether it is temporary or indefinite in its application. It also explores the way in which institutional context shapes the application of the principle. The chapter finds that the way in which these puzzles of interpretation have been resolved in practice demonstrates that fears that the principle has or will lead to unfettered decision-making are unfounded. They also demonstrate that the principle has been applied in relatively modest ways that may not fully engage with the uncertainty that gives rise to the need for the principle.
Environmental law has become an amalgam of norms, principles and rules that affect the legal system in general. A central issue here concerns the relationship between these norms, principles and rules and the extent to which sustainability as a norm not only underpins the legal system but also functions as a rule. This chapter seeks to answer these questions. It does so by locating sustainability in the context of its history, contemporary environmental law and the concept of sustainable development, by defining the core idea of sustainability and by examining its legal nature and general importance for environmental law and the legal system in general.
Environmental law has traditionally set standards of individual conduct and of institutional decision-making in the exercise of rights of property and of sovereignty. These constitute liability rules by imposing liability for a breach of the rule after the event: a reactive approach. This approach continues to be relevant. It has now been complemented to a very significant extent by a proactive approach to environmental governance. This involves the acknowledgment of fundamental values and objectives – such as environmental protection, environmental restoration and sustainable development – and the creation of rules of law to implement operationally these values and objectives. These rules assume various forms: strategic rules, regulatory rules and methodological rules. Strategic rules state what is to be achieved; regulatory rules prescribe the institutional, administrative and procedural processes according to which these objectives are to be achieved; and methodological rules state the intellectual and reasoning processes according to which the decisions achieving these objectives are reached. Alternatively, there are market rules. Market rules prescribe how the market works but leave it to those operating in the market to decide how to achieve the relevant objectives but in the traditional context of contractual, tortious or statutory rules that govern how a market operates. This chapter discusses these concepts and analyses examples from international, constitutional and statutory perspectives.
Brian J. Preston
The concept of ecologically sustainable development (ESD) or sustainable development has been around for at least three decades. The task of instilling ESD and its principles with legal rigour has generally fallen to the judiciary. The judiciaries of the world have, through their decisions, cast some light on the concept of ESD and have answered to varying degrees some of the questions about the concept and the principles of ESD and how and when they should be applied. These judicial decisions have explicated the spare skeleton of ESD, filled the interstices and put flesh on the skeleton. In these ways, judicial decisions are developing a body of jurisprudence on ESD. This chapter sketches some of the ways in which the judiciary, through its decisions, has found, interpreted and applied the concepts of ESD in adjudicating environmental disputes according to law. The first concerns the meaning of the concept and the principles of ESD. Do they set substantive outcomes or only processes, or both? The second concerns the interrelationship between the concepts and principles of ESD, in particular how ESD is to be achieved through application of the principles of ESD. The third concerns the interpretation and explanation of the principles of ESD. The fourth concerns application of the concept and principles of ESD to differing types of disputes. In these ways, this chapter will explain the judicial development of ESD and its principles. These judicial pronouncements are neither complete nor comprehensive. There is still further work that needs to be done to fill in the gaps and bring the whole picture of the meaning of the concept and principles of ESD into full view. Nevertheless, by their decisions so far, courts have contributed to the development and implementation of environmental law.