In 2008, Ecuador recognized rights of nature (RoN) in its Constitution. Since then, RoN have been relied upon in judicial decisions 55 times in Ecuador. Following years of ad hoc treatment of RoN by Ecuador's government and courts, its Constitutional Court selected various cases to establish binding jurisprudence in respect of RoN. In doing so, the Constitutional Court and various provincial courts in Ecuador have clarified the content of RoN, including specific criteria for determining RoN violations and the relationship between RoN and other constitutional rights, including community and economic rights related to development. Moreover, the courts are imposing sanctions on RoN violators, including the state and powerful commercial sectors. This article shows how Ecuadorian court decisions are changing RoN from a vague, abstract concept into a set of specific standards for how to balance RoN with various human rights and existing environmental law in order to implement sustainable development in an integrated and holistic manner that does not sacrifice ecosystem functioning. In doing so, the article contributes to the emerging literature on how new environmental law norms are constructed as they are put into practice, as well as the important role that judges play as norm entrepreneurs.

The rapid and widespread establishment of domestic environmental courts and tribunals raises important questions regarding their implications for international environmental law and global environmental governance. I use an interdisciplinary, multi-method approach to consider the capacity of domestic environmental courts to identify and apply norms and principles of international environmental law in domestic opinions. I first review existing literature, identifying jurisdiction, judicial discretion, and a court's position in a legal system as key institutional determinants of this capacity. I then develop a typology of domestic environmental courts and tribunals, which suggests that, all else being equal, a court with national geographic jurisdiction that also enjoys attributes of broad subject-matter jurisdiction and discretion may be expected to be best equipped to implement norms and principles of international environmental law. Next, I integrate existing assessments of environmental court presence with original outreach and web research to identify all countries which possess environmental courts, and assess a subset of eight existing national-level institutions. The analysis of this subset highlights the diversity of institutional models that can incorporate theorized best practices. Based on these findings, I draw several theoretical conclusions: specifically (i) the relevance of environmental court research to individual- and institutional-level analysis in transnational and international environmental law, (ii) the need for further legal-institutional analysis in global environmental governance scholarship, and (iii) the opportunity for further interdisciplinary analysis of the role of domestic courts in environmental governance.

Since the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.

This article investigates whether beauty in nature can provide a global language to inform environmental governance, such as by providing shared values and collaborative approaches across and within different cultures. Because art mediates how many people experience environmental aesthetics, such as through photography and music, this enquiry extends to the arts. As is the case for other aesthetic values, beauty is ultimately about relationships and ways of knowing our environment, and the law can best engage with such values through interpretive guidance and processes for participatory decision making. Prescriptive codification of beauty ‘standards’ is generally not a realistic goal for lawmakers. The article enriches our understanding of how aesthetics can contribute to human beings’ emotional empathy and ethical commitment to environmental stewardship, and identifies some conceptual and methodological difficulties that militate against beauty being a lingua franca for environmental law.

The Paris Agreement to the United Nations Framework Convention on Climate Change (UNFCCC) signifies a shift in how the principle of common but differentiated responsibilities (CBDR) manifests in the international climate change regime. Unlike the UNFCCC and its Kyoto Protocol, the Paris Agreement does not enshrine differentiated substantive mitigation obligations for developed and developing countries. However, an increasingly proceduralized variant of the CBDR principle, which facilitates regard for the interests of developing countries with respect to treaty implementation yet does not guarantee favourable substantive outcomes for these states, is evident in the emerging regime. The experience of the International Maritime Organization’s climate change regime provides a cautionary tale with respect to procedurally oriented differentiation that is not reinforced by effective processes to ensure that developed states honour their finance and technology transfer commitments. Accordingly, this article posits that strong accountability mechanisms are required to transform opportunities for procedural differentiation in the Paris Agreement into a robust framework for procedural regard for the interests of developing states.

The International Court of Justice (ICJ) judgment in Whaling in the Antarctic, a dispute brought by Australia against Japan, found that Japan had violated the International Convention for the Regulation of Whaling (ICRW) moratoria on all commercial whaling and the use of factory ships to process whales, and also the prohibition on whaling in the Southern Ocean Sanctuary. In the course of analyzing whether special permits issued by Japan qualified for the scientific whaling exemption under Article VIII ICRW, the Court benefited from a more robust scientific fact-finding process than at times in the past. The judgment emphasized the mutual obligations of this multilateral agreement by taking the view that the provisions of the ICRW’s scientific whaling exemptions are neither self-judging nor subject to a ‘margin of appreciation’ in favour of a state party claiming the exemption. The case was driven by conflicting attitudes towards commercial whaling, and also towards global common spaces. The ICJ’s decision and Japan’s response indicate the limits of the ICRW in resolving those differences.

The role of calculative practices such as goals and indicators in international environmental governance causes concern among many observers, who view them as promoting a reductivist approach to the non-human world and privileging economic understandings of environmental governance above all others. Yet they possess enormous potential to provide insights into the non-human world that could be of great benefit to governance. This article takes seriously critical perspectives of calculative practices, while exploring a weakness in much of the critical literature, namely a failure to examine assumptions about the nature of scientific knowledge and the manner in which it is, and ought to be, taken up by policy makers. I contend that both the design of environmental regimes and critical analyses of these regimes bear the marks of the influence, albeit indirect, of early 20th century views on the superiority of scientific knowledge and its unique capacity to ground decision making. I argue that a richer, more nuanced account of the co-production of ecological metrics such as goals and indicators and their potential contributions to ecosystem governance and sustainability is necessary. With such accounts, scholars and political authorities would be in a better position to address the very real pitfalls and dangers of calculative practices while not feeling compelled to forego these potentially powerful approaches.

This article investigates the environmental and economic impact of the free allocation of emissions allowances in Emissions Trading Schemes (ETSs) as well as its compatibility with trade law. Free allocation can facilitate the industry’s gradual adjustment to an ETS and hence boost its acceptability. At the same time, however, the article shows that the economic and environmental benefits of free allocation are debatable. Moreover, the practice of free allocation possibly contravenes WTO law. The conclusion that free allowances may constitute an objectionable subsidy under WTO subsidy disciplines raises questions of law reform. Should the ETS be reformed to fit conventional trade imperatives, or should trade law be rethought so as to be responsive to contemporary environmental protection strategies? The article argues that, considering the questionable benefits of free allocation, any adjustment to trade law should be narrow and temporary.

Despite widespread recognition of the threat posed by emerging zoonotic diseases (EZDs) to human and animal health and the economy, the root causes of EZDs are largely ignored by the international community. In particular, the links between wildlife health, human-induced land-use change, and EZDs have not been adequately addressed. Generally, states are not required to evaluate the health impacts of land-use decisions within their territories. Similarly, global efforts to protect wild spaces are rarely identified as a health imperative. Where initiatives have been undertaken, they remain focused largely on detecting and controlling only those wildlife diseases that are known or suspected to be a threat to human and animal health or the economy. A critique of the existing international responses leaves no doubt that a preventative approach must be adopted to address human vulnerability to EZDs.

This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.

Whether companies and shareholders should be held liable for land contamination that occurred prior to the passage of the law imposing liability for such contamination is a complex issue. After a theoretical analysis of the legitimacy of retroactivity in land contamination law, our comparative study shows that most countries have adopted, or tacitly approve of, retroactive liability for land contamination. However, the liability schemes implemented in the countries investigated vary as to the types of obligation, the timing of conduct for which liability is imposed, and the standard of liability, among other factors. The retroactive imposition of liability in China's recently enacted Law on the Prevention and Control of Soil Pollution is examined, as well as the roadblocks that still remain, and further improvement based on the theoretical and comparative analysis are considered.

‘Nanotechnology’, the manipulation of matter on an atomic and molecular scale, is projected to profoundly alter manufacturing systems globally. However, along with the promise that these new technologies hold, there are concerns about the possibility of unknown latent risks to human health or the environment. Under current scientific uncertainties, regulators explore new strategies for overseeing the development and safe use of nanotechnologies. Information disclosure plays a prominent role among these strategies. Thus far, however, the informational strategies actually employed by governments have focused on means by which to collect information from industry, and the types of information requested do not allow for an adequate health risk assessment. Moreover, little effort has been made to make the information collected publicly available. The article addresses the question of what information is disclosed (or not disclosed) and why, highlighting the socio-political context within which these decisions are made, and their democratic implications. It argues that the current ‘light-touch’ disclosure-based approach may lie in technical, evidence-based, ‘risk’ conception, which is common to both the United States and the European Union. It further argues for a more democratic ‘governance-by-disclosure’ approach, which allows society to prioritize risks that it is willing to take to enjoy the benefit of technological progress.

There are two general pathways towards climate change litigation in China: tort-based litigation to hold carbon emitters accountable in civil law, and administrative litigation against the government to demand better climate regulation. While the first pathway is gaining momentum among Chinese scholars, this article argues that legal barriers to applying tort-based rules to climate change should be fairly acknowledged. The article argues that China's legal framework for environmental impact assessment (EIA) provides more openness and flexibility for the resolution of climate change disputes. Therefore, EIA-based climate lawsuits, which challenge environmental authorities for not adequately taking climate change factors into account in decision-making processes, encounter relatively fewer legal barriers, require less radical legal or institutional reform, and have greater potential to maintain existing legal orders. The regulatory effects produced by EIA-based litigation suggest that the scholarship on climate change litigation in China should take such litigation seriously because it could influence both governments and emitters in undertaking more proactive efforts. This China-based study, with a special focus on judicial practice in the largest developing country, will shine a light on China's contribution to transnational climate litigation.

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.

This article analyzes the potential for legal transplant theory to strengthen the legal regimes that guarantee the right of access to environmental information in England and China. Guaranteed by the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the right has a substantial impact on how individuals can act as environmental stewards. However, despite the framework provided by the Aarhus Convention, there are shortcomings in how these states guarantee the right when compared with the obligations set by the provisions of the Convention. The article applies Alan Watson’s legal transplant theory to the environmental information regimes in England and China and considers the likelihood of each jurisdiction sourcing legal reforms from the other. It also seeks to identify common trends shared by each jurisdiction and the impact of the Aarhus Convention on such transplants.

This research note reflects on the methods (as distinct from methodology) used in a five-year interdisciplinary and multi-site research project in global environmental law, and their links to questions of research ethics. We highlight the iterative processes that proved necessary to compare five case studies on local communities engaged in varied discussions on fair and equitable benefit sharing in different regions of the world and their implications for international environmental law. The note recommends explicit reflection on research methods and ethics to acknowledge and address power relationships in global environmental law research.

Sites of ancient woodland in the United Kingdom (UK) are diminishing rapidly and the multifunctional forest management system with its fragmented approach fails effectively to protect such woodland. In the face of reports on the destruction of ancient woodland, the HS2 High-Speed train project in the UK signifies the extent of trade-offs among the key stakeholders. Such large infrastructure projects typically come with high environmental and social costs, including deforestation, habitat fragmentation, biodiversity loss, and social disruption. This article examines the protection of ancient woodland in the UK and assesses the challenges in applying the ecosystem approach, an internationally recognized sustainability strategy, in the context of such protection. A better understanding of the ecosystem approach to manage ancient woodland is critical for promoting sustainable forestry practices in the UK and informs the discussion in this article of the importance of conserving ancient woodland globally. Lessons learned from UK woodland policies and certification schemes include the need to have in place strong regulatory frameworks, introduce clear indicators, and recognize pluralistic value systems alongside economic considerations. The article concludes that the protection of ancient woodland in the UK requires distinct and strong laws that reflect multiple values of this resource, acknowledge the trade-offs among stakeholders, and adopt an inclusive approach to reduce power asymmetries.

This article examines access to justice for victims of the Southeast Asian haze pollution within the legal system of Indonesia as the source-of-origin state. It argues that bringing civil claims against the polluting companies before Indonesian courts offers a more effective avenue towards justice than relying on resolution at the level of state to state. The article first discusses barriers to resolving the problem through the state-to-state level. It then considers whether, under international law, the source-of-origin state is obliged to provide remedies for victims of transboundary environmental damage. The article then reviews the efficacy of pursuing remedies for transboundary civil claims against polluters through the legal system of the source-of-origin state. Finally, the article considers the limitations of the laws of the affected states, which, as a consequence, mean that transboundary civil litigation in the source-of-origin state may be the most effective avenue for redress.