The law of international watercourses consists mainly of a series of bilateral, multilateral, regional, and global agreements that establish binding rules through which state parties jointly manage transboundary water resources. China similarly manages its shared freshwaters through a series of bilateral agreements. Increasingly, however, it relies on non-binding soft law instruments to manage these resources with its riparian neighbours. An important example of this is the Lancang-Mekong Cooperation, a branch of the Belt and Road Initiative. Its use of soft instruments, which recognize international law and promote projects, displays evidence of merging and emerging normativities, ensuring that it is capable of playing both a supporting and a developmental role in the law of international watercourses.

Transparency is fundamental to environmental governance. It promotes public trust, goodwill, and credibility in environmental decision making. It also ensures that monitoring and enforcement of emissions reduction targets are efficient and effective. As the impacts of climate change increase, it is urgent that scholars and policy makers develop and test criteria for transparency in both the calculation of emissions reductions and the public reporting of emissions. This article highlights basic principles of transparency that should inform such criteria and that may be applied on a transnational basis. We also examine China’s recently implemented pilot emissions trading schemes and find that the approach in China does not yet comply with our suggested principles. Nevertheless, the positive direction of environmental governance in this region is encouraging.

This article draws on empirical research conducted with European Commission officials in three Directorates-General and its other services on their perception of how the legislative and policy-making process facilitates the interaction of science and environmental law. This article deploys Sheila Jasanoff's theoretical framework of co-production as an important lens to examine how the European Commission creates this interaction of science and law in environmental policy making and identifies how the Commission incorporates different voices and stakeholders in this policy area. The Commission can be seen as a vehicle of co-production of science and law in EU environmental policy by building strong expert identities, putting in place institutional processes and instruments, and creating discourse between scientists and lawyers leading to outputs of co-production. It is argued that in actively facilitating co-production, the Commission underpins the legislative and policy-making process with its institutional values.

In 2006, the EU adopted the REACH Regulation – the world’s most demanding chemicals regime so far. Even before it entered into force, the European Commission declared its ambition to make REACH a global standard, and several authors see a potential for far-reaching influence via the ‘California effect’, as conceptualized by David Vogel. Economic preconditions are indeed fulfilled with the chemicals industry being highly globalized, the EU as an attractive export market and REACH applying to imports. Following Vogel, firms exporting to the EU might have an incentive to lobby for similar requirements in their country. This article examines whether American chemical producers do, indeed, push for EU-like provisions in the debate on US policy reform. While there is some influence on the US, it is shown that REACH does not (yet) trigger a ‘California effect’. The business case does not seem to be strong enough.

Under the no-harm principle, states must prevent activities within their jurisdiction from causing extraterritorial environmental harm. It has been argued elsewhere that excessive greenhouse gas emissions (GHG) from industrial states constitute a breach of this principle and instigate state responsibility. Yet, the relevance of general international law for climate change does not obviate a need for more specific international climate change agreements. This article argues that the climate regime is broadly compatible with general norms. It can, furthermore, address a gap in compliance with general international law – namely, the systematic failure of industrial states to cease excessive GHG emissions and to provide adequate reparations. As a compliance regime, the international climate change law regime defines global ambition and national commitments and initiates multiple processes to raise awareness, set political agendas, and progressively build momentum for states to comply with their obligations under general international law.

This essay places transnational environmental law in an epistemological context. Starting from the general concept of ‘transnational law’ and the specific environmental dimension of ‘international administrative law’, four case histories are presented to illustrate the integrant approach of transnational environmental law. The cases – all arising in the 1970s – deal with transboundary problems of aircraft noise, ocean dumping, river pollution, and marine protected areas. In addition to traditional aspects of public international law in the environmental field, they typically interface with questions of administrative law, private international law, criminal law, and human rights law. The essay advocates a new focus on mechanisms for participation by civil society in the operation and implementation of transnational environmental law.

This article offers a socio-legal analysis of the role played by the principle of common but differentiated responsibilities (CBDR) in the development, diffusion, and implementation of jurisdictional REDD+ activities throughout the developing world. It employs a qualitative research method known as process tracing to uncover whether and, if so, to what extent and how actors have used CBDR to support the emergence and effectiveness of the transnational legal process for REDD+. The article argues that the transnational legal process for REDD+ reflects a conception of CBDR in which developing country governments may take on voluntary commitments to reduce their carbon emissions, with the multilateral, bilateral, and private sources of financial support and technical assistance provided by developed countries, international organizations, non-governmental organizations, and corporations. This creative conception and application of CBDR has fostered the construction and diffusion of legal norms for REDD+ because it has influenced the interests, ideas, and identities of public and private actors in the North and South. However, the early challenges associated with the implementation of REDD+ reveal a worrying gap between the financial pledges made by developed countries and the costs associated with the full implementation of REDD+, as well as contradictions in the very way in which the responsibilities of various countries have been defined in the context of REDD+. The analysis has important implications for the transnational governance of REDD+, as well as for scholarship on the role of differentiation in the pursuit of effective and equitable climate change solutions.

At the end of the 2015 Academy Award-winning film The Big Short, which explores the origins of the 2008 Global Financial Crisis, a caption notes that the Wall Street investor protagonist of the film who predicted the collapse of the United States (US) housing market would now be ‘focused on one commodity: water’. Water is sometimes described in popular culture as ‘the new oil’ or ‘more valuable than gold’. It is predicted to be the subject of increasing uncertainty, competition, conflict, and even war, as increasing demand from a growing human population and development meets reduced supply as a result of poor management, overuse, and climate change.

While the intergovernmental climate regime increasingly recognizes the role of non-state actors in achieving the goals of the Paris Agreement (PA), the normative linkages between the intergovernmental climate regime and the non-state dominated ‘transnational partnership governance’ remain vague and tentative. A formalized engagement of the intergovernmental climate regime with transnational partnerships can increase the effectiveness of partnerships in delivering on climate mitigation and adaptation, thereby complementing rather than replacing government action. The proposed active engagement with partnerships would include (i) collecting and analyzing information to develop and prioritize areas for transnational and partnership engagement; (ii) defining minimum criteria and procedural requirements to be listed on an enhanced Non-state Actor Zone for Climate Action platform; (iii) actively supporting strategic initiatives; (iv) facilitating market or non-market finance as part of Article 6 PA; and (v) evaluating the effectiveness of partnerships in the context of the enhanced transparency framework (Article 13 PA) and the global stocktake (Article 14 PA). The UNFCCC Secretariat could facilitate engagement and problem solving by actively orchestrating transnational partnerships. Constructing effective implementation partnerships, recording their mitigation and adaptation goals, and holding them accountable may help to move climate talks from rhetoric to action.

The Decision on Criteria and Methodological Standards on Good Environmental Status of Marine Waters provides the conceptual framework for the assessment and valuation of the marine waters of EU Member States. In particular, it provides concepts for defining what constitutes good marine environmental status – a status which Member States are obligated to achieve by the year 2020 under the 2008 Marine Strategy Framework Directive. This article aims to elucidate the epistemic and normative dimensions of scientific criteria and methodological standards, as well as their importance in the legal treatment of the marine environment of the EU. The article also assesses how and to what extent the transnational process leading up to the Decision was structured, surveying existing ideas and perspectives as to what exactly constitutes good environmental status, and examining whether the structure of the Decision ensures that those affected by it would want to accept it.

Economic arguments in support of linking emissions trading schemes suggest that such linking could provide access to lower cost abatement options and increase market stability. The decisions of whether and how to link emissions trading schemes often focus on the design features of the relevant schemes, but an additional factor which has the potential to undermine the efficiency of linked schemes is taxation. This article systematically tests two alternative approaches to the direct (income) taxation of cross-border transfers of emission allowances for differential tax outcomes. Four hypothetical transactions are considered under three different linking mechanisms and on the assumption that a tax treaty based on the OECD Model Tax Convention on Income and on Capital is in force. This analysis evidences that, in some cases – and especially if the relevant jurisdictions adopt different approaches to the taxation of allowance transactions under domestic law – there is the potential for timing differences or double taxation that could impact on the efficiency of the linked trading schemes. It is therefore important for tax implications to be considered as part of any linking proposal.

This article examines the creation of the International Solar Alliance (ISA), a new international organization led by India and backed primarily by developing countries. Official documents and wide-ranging interviews offer insights into the treaty-making process. Using a political economy approach to the study of international law, the article analyzes politico-legal issues associated with the creation of the ISA. The legal form of the ISA is best described as ‘soft law in a hard shell’: it uses the legal infrastructure of a treaty while relying on the social structure of participating actors for its future implementation. Empirical evidence suggests that three factors explain the treaty structure of the ISA: India's leadership role in the treaty-making process, the early involvement of non-state actors, and the preference of developing countries for legal form. Ultimately, the case illustrates India's shift towards a leadership role in climate change governance, and the steady emergence of non-state actors in driving climate action.

This article describes the processes that led the Irish Environmental Protection Agency (EPA) to develop a National Inspection Plan for domestic waste water treatment systems, following intervention from European Union institutions. The discussion focuses on two issues: the role of transnational institutional settings in galvanizing innovation and regulatory reform, and the practical challenges of dealing with lower risks. It is argued that multi-level transnational regimes have considerable potential to stimulate high-level reviews of regulatory strategy. As a result, lower risks present challenges that cannot be ignored in favour of policies that focus on the most severe risks. Traditional risk regulation theories, it is contended, do not provide much assistance in selecting intervention strategies in the face of such pressures, but the example of the Irish EPA shows how regulators can address these issues.

This commentary details the United States’ progress in advancing climate change law since President Barrack Obama’s re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has gained more prominence in the Obama administration’s second term agenda and considers how domestic actions help the United States to reposition itself in international climate diplomacy.

The Federal Republic of Germany and the United States (US) have adopted different models for energy federalism. Germany allocates more authority to the federal government and the US relies on a decentralized cooperative federalism model that preserves key roles for state actors. This article explores and compares the relevance of federal legal structures for renewable energy expansion in both countries. It sets out the constitutional, statutory, and factual foundations in both Germany and the US, and explores the legal and empirical dimensions of renewable energy expansion at the federal and state levels. The article concludes by drawing several comparative lessons about the significance of federal structures for energy transition processes.

This invited response commentary engages with Benoit Mayer's case comment, published in this issue of Transnational Environmental Law, on the recent landmark decision by the District Court of The Hague (The Netherlands) of May 2021 in Milieudefensie v. Royal Dutch Shell. The Court ordered the oil giant Royal Dutch Shell to reduce at least 45% of its greenhouse gas emissions by 2030 compared with 2019 levels. In this response commentary I build on and contrast Mayer's examination of how the Court arrived at this target. In doing so, I discuss the normativity of tort law compared with international law against the background of the ideas of Martti Koskenniemi. I conclude that the District Court legitimately qualified Shell's business plans as tortious. The specific reduction target is the result of civil procedural rules on evidence and the debate between the parties. In the light of this analysis, I respectfully reject Benoit Mayer's suggestion that sectoral practices should play a more significant role in determining corporate climate mitigation obligations. In my view, such an approach would be dangerously apologetic and lead to dystopian outcomes.

This article explores the development and enforcement of the Republic of Korea’s Soil Environmental Conservation Act (SECA). It argues that, although Korea has adopted the statutory model of the United States (US) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and US case law, it has formulated SECA to devise a Korean model of an effective and reasonable liability scheme based on the Korean regulatory context. The original SECA, especially its retroactive liability provision, was declared unconstitutional by the Constitutional Court of Korea, because it violated ‘the principle of legitimate expectations protection’. Since then, SECA has been amended to include more diverse categories of polluter and to provide more adequate defences. The development process of this Korean model can be instructive for less developed countries that urgently need to address soil pollution but are not yet equipped with the necessary environmental statutes and regulatory infrastructure and, thus, are vulnerable to environmental risks.

Climate change mitigation calls for the limitation and reduction of greenhouse gas (GHG) emissions across all sectors. However, limiting GHG emissions from aviation has proven to be problematic for technical reasons (e.g., lack of low-carbon alternatives) as well as legal reasons (e.g., international aviation does not readily fall within any one state's jurisdiction). Relevant initiatives have followed two streams. At the international level, the International Civil Aviation Organization (ICAO) has adopted technical standards and, more recently, a market-based mechanism to limit emissions from international civil aviation. In parallel, states have adopted their own policies and measures to regulate emissions from both domestic and international aviation, ranging from tax and technical standards to traffic management and infrastructural development. While much of the literature on climate change mitigation in the aviation sector has focused on international efforts, this article reveals the importance of understanding the tensions and complementarities of the two streams.