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.
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.
Afshin Akhtar-Khavari and Anastasia Telesetsky
Environmental protection continues to be the key driver of conceptual and technical developments in environmental law and governance. However, protection initiatives alone simply assume that passive restoration will support ecosystem health and resilience moving forward. In the Anthropocene, where talks about breaches of planetary boundaries are too common, we have to rethink whether concepts like protection or even sustainability make us complacent about nature’s own capacity to restore itself. Restoration ecology encourages human beings to actively assist with the holistic recovery of ecosystems to an historical trajectory that will enable it to function in a healthy way. This chapter considers whether international environmental law is geared to supporting restoration generally and restoration ecology in particular. After examining the significance of restoration for reshaping environmental governance in the Anthropocene this chapter surveys international soft law instruments and asks whether and to what extent they have dealt with restoration issues and whether enough evidence exists to suggest that the groundwork has been done to shift environmental law from simply protecting ecosystem to holistically restoring them in the Anthropocene. The chapter argues that international environmental law has yet to use holistic approaches to restoration that compel the involvement of human beings as active agents in the recovery of ecosystem. Crucially, existing international environmental law has yet to define ecological parameters for states who undertake legally mandated restoration; as a result, restoration in practice may do little more than achieve remediation and rehabilitation, leading to an irreversible loss of ecosystem functions.
Louis Kotzé and Caiphas Soyapi
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.
In this chapter the economic approach to environmental governance generally and to environmental law in particular is explained. Attention is paid to the goal of environmental policy from an economic perspective, but also to the economic meaning of environmental principles. The question is equally addressed whether there is a convergence or a divergence between the economic and the legal way in which environmental law is approached. Specific attention is devoted to environmental liability, to economic instruments and to optimal enforcement mechanisms.
This chapter argues that international environmental law and international human rights law, despite the existence of tensions between them, show hopeful signs of progress in their relationship. The chapter also argues that despite such signs of progress, both legal domains share problematic subject-object relations tending towards environmental degradation and linked to historical patterns of oppression. Once such subject-object relations are addressed, it might be possible, with sufficient imagination, for such understanding to become the departure point for a reconfigured relationship between the two legal domains – and ultimately, for their transformation.
As the field of environmental law developed in the second half of the twentieth century, a growing number of legal systems began to weave together environmental law and elements of human rights law. Today, the majority of the world’s countries include in their constitutions some treatment of either a right to a safe and healthy environment or some form of state responsibility for environmental protection. This chapter provides a survey of the issues associated with a constitutional right for humans to enjoy a healthy environment. It addresses foundational questions, such as the definition of a healthy environment, and the significance of constitutionalising environmental values. Implementing an effective constitutional human right to a healthy environment – one that leads to better substantive environmental outcomes as well as improved social, cultural and economic sustainability – involves several challenges, particularly in terms of how legal institutions carry out and enforce such a right. The chapter analyses several examples, including the application of constitutional provisions in Brazil, the Philippines, South Africa and the State Constitution of Pennsylvania in the United States. Given the fundamental interdependence of humans and the rest of the Earth around them, especially the human need to breathe air, drink water and eat food – all of which are supported by environmental processes – there will need to be greater creativity, greater commitment and greater effort to safeguard the right to a healthy environment and to ensure a sustainable future.
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.
According to the mainstream narrative, the International Court of Justice (ICJ) has tended to be labelled a follower rather than a leader in the advancement of environmental law principles by responding slowly and cautiously to external developments, and by refraining from offering definitive conclusions on controversial environmental disputes. This chapter surveys the ICJ’s growing body of environmental jurisprudence and contends that there are strong indications, revealed particularly clearly in several recent decisions, that the ICJ has both the willingness and the capacity to address environmental matters more directly and substantively.