On 26 May 2021, the District Court of The Hague (The Netherlands) passed an innovative judgment in Milieudefensie v. Royal Dutch Shell. The Court interpreted Shell's duty of care towards the inhabitants of the Netherlands as requiring it to mitigate climate change by reducing the carbon dioxide emissions resulting from its global operations by at least 45% by 2030, compared with 2019. This case comment salutes the identification of a corporate duty of care for climate change mitigation but expresses scepticism regarding the Court's interpretation of this duty. The Court's reading of global climate mitigation objectives and climate science, which form the basis of its determination of Shell's requisite level of mitigation action, is plagued with inconsistencies. It is argued here that, in order to determine the standard of care applicable to Shell, the Court should have relied not only on a ‘descending’ reasoning as to what ought to be done, but also on an ‘ascending’ reasoning accounting for industry practices.

This article argues that an improved legal methodology is needed to ensure that states’ greenhouse gas emissions mitigation obligations are specified in line with best available science and the equity principle. In this vein, the article explores the extent to which the ‘meta-equity assessment’ of states’ emissions by the Climate Action Tracker (CAT) can contribute to this aim. The article finds that the CAT's PRIMAP Equity tool, embedded in the Potsdam Real-time Integrated Model for the probabilistic Assessment of emission Paths, offers the best available approach to distributing a global carbon budget among states in line with equity criteria recognized by the Intergovernmental Panel on Climate Change. The emissions data and global pathways used in the PRIMAP Equity tool can be updated. The major challenge ahead lies in understanding which of the emissions and temperature pathways can be applied in the legal context, and how.

In recent years, climate citizens’ assemblies – randomly selected representative citizens gathered to make policy recommendations on greenhouse gas emissions targets – have gained in popularity as a potential innovative solution to the failure of governments to design and adopt ambitious climate change laws and policies. This article appraises the process and outcomes of three climate citizens’ assemblies held at the national level – in Ireland, France and the United Kingdom – and evaluates their contributions to the making of climate law and policy. In doing so, it first looks at whether citizens’ assemblies have the ability to improve the substance of climate law and suggests that they face difficulties in providing an integrated, holistic response to the climate problem. It then explores how citizens’ assemblies have fed into subsequent legislative processes to show their positive influence and draws lessons for our understanding of the role of citizens’ assemblies in climate lawmaking.

The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions.

The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence.

Humanity is at a crossroads in addressing biodiversity loss. Several assessments have reported on the weak compliance with the Aichi Biodiversity Targets by the parties to the Convention on Biological Diversity (CBD). To address this lack of compliance, the challenges in implementing and enforcing CBD obligations must be understood. Key implementation challenges of the CBD are identified through a content analysis of policy documents, multi-stakeholder interviews, and participant observation at the recent CBD Conference of the Parties. Building on this analysis, the article explores the extent to which the review mechanisms of international human rights law, with their various strategies for eliciting compliance, can help to improve CBD mechanisms. The findings of this article reveal insights that the CBD can draw from international human rights law to address these compliance challenges, such as facilitating the participation of civil society organizations to provide specific input, and engaging independent biodiversity experts to assess implementation. The article concludes that insights from human rights review mechanisms are useful for improving the emerging peer review mechanism of the CBD, which is important for strengthening accountability within the post-2020 global biodiversity framework.

This article takes stock of the many private and public instruments enacted transnationally to tackle the pressing problem of deforestation, ecosystem conversion, and associated human rights violations caused by international demand for and trade in agricultural commodities. The article argues that non-financial due diligence based on no-conversion criteria, and in line with the United Nations Guiding Principles on Business and Human Rights, holds considerable potential for ensuring deforestation-free value chains by enrolling and scaling up firm-level supply-chain management systems and private standards. The article introduces the main features of a possible European Union measure that disciplines via non-financial due diligence the placing on the market of commodities and products associated with deforestation, ecosystem conversion, degradation of forests and ecosystems, and associated human rights violations. Such a measure would also have the effect of streamlining initiatives enacted by private authority.

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.

Federalism is ostensibly misplaced to mitigate climate change as a global public concern as it is prone to import the inadequate incentive structures existing at the international level into the domestic domain. Drawing from the legal structures and procedures of Swiss federalism, this article attempts to provide a more nuanced assessment of the relationship between laws designed to mitigate climate change and federalism. It seeks to demonstrate that federalism may support effective policies to mitigate climate change, provided that the architecture of domestic climate change law meets certain criteria. These include considerable federal powers, a degree of institutional flexibility, robust formal channels of influence for subnational actors on policy formulation at the federal level, ample room for regulatory experimentalism at the lower layers of federalism, and the ‘right to act’ conferred on the Federation to avoid political impasse among the constituent units.

Global common concerns – including combating illegal, unreported and unregulated (IUU) fishing – necessitate effective global action to avoid displacing illegal practices to under-regulated jurisdictions. The response in international law has therefore included the obligation upon all states to exercise jurisdiction, albeit with varying clarity regarding the existence and scope of duties for each jurisdictional basis. This article argues that, through its non-cooperating third country identification procedure, the European Union (EU) has sought unilaterally to crystalize and promote the implementation of an obligation upon states to exercise extraterritorial active personality-based jurisdiction over their own nationals engaged in IUU fishing. This is demonstrated through an analysis of EU practice relating to Asian states and remains true despite the EU's non-cooperating third country identification procedure only formally targeting flag, port, coastal, and market states. The EU and Asian states have improved their laws governing nationals engaged in IUU fishing, but concerns over legal certainty arise.

This article examines ‘essential use’ as a novel form of regulatory control. An essential use approach to the regulation of potentially hazardous chemicals has not been used extensively (if at all) in European Union (EU) regulatory law and warrants further consideration. Essential use, as initially proposed by scientists and later referred to in the EU 2020 Chemicals Strategy for Sustainability, is a radical departure from the current method of regulating hazardous substances. The purpose of this article is to contribute to legal scholarship on essential use by (i) scoping its origins in United States law and subsequently in international law; (ii) noting its limited incorporation into the EU legal order over the past 30 years; (iii) analyzing how it could be further incorporated into the EU legal order; and (iv) considering the impact of such a move on the future regulation of hazardous substances in the EU.

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.

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.

The purpose of this article is to explore the normative nature of the Ecosystem Approach in international environmental law. To do so, the article examines the implementation of this approach in two Mediterranean regimes: the Barcelona Convention and the General Fisheries Commission for the Mediterranean. As these two regimes have implemented the Ecosystem Approach by taking into account the experiences of other international regimes, they are representative of broader trends in relation to this concept. The examination reveals that the Ecosystem Approach operates as an interstitial principle: a norm that fulfils the functions of a principle with regard to other rules, but is devoid of normative autonomy. This understanding of the Ecosystem Approach brings clarity to a concept that is ambiguous yet is widely disseminated in environmental governance. It may also further the progressive emergence of the Ecosystem Approach as a general principle of international environmental law.

A widespread response to the pressures placed on the ecological condition of rivers is the design and implementation of environmental flow regimes in domestic regulatory frameworks for water. Environmental interests in water are not confined to hydrological functioning but include relationships between water resources and human cultural and economic livelihoods, including those of Indigenous communities. Since the mid-1980s there has been some provision for environmental flows in Chilean law. However, the legal and policy requirements are limited in scope and have been poorly implemented by regulatory institutions. In this article we critically examine the treatment of environmental flows in Chilean legal and policy frameworks. We argue that there is an urgent need for a comprehensive minimum flow regime in Chile to protect the environmental qualities of rivers, which must also reflect and provide for Indigenous water rights and interests. The developing constitutional crisis in Chile, the most significant political crisis since the end of the Pinochet dictatorship (1973–90), highlights the need to revisit the sensitive and unresolved issues of water governance and equity.

The recognition of rivers and related ecosystems as legal persons or subjects is an emerging mechanism in transnational practice available to governments in seeking more effective and collaborative natural resource management, sometimes at the insistence of indigenous peoples. This approach is developing particularly quickly in Colombia, where legal rights for rivers and ecosystems are grasping onto, and evolving out of, constitutional human rights protections. This enables the development of a new type of constitutionalism of nature. Yet legal rights for rivers may obscure the rights of indigenous peoples and their role in resource ownership and governance. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful, in devising ecosystem rights, of the complex and interrelated rights, interests and tenures of indigenous peoples and local communities.

This contribution takes the form of an uncommon case report. It discusses an action brought to the Court of Justice of the European Union (CJEU) before the final decision has been rendered. The author believes this is justified because the innovative character of the procedural and substantive reasoning of the application could be of interest to a wider public. This may be the case even if the CJEU eventually dismisses the action as being inadmissible, leaving the substantive questions undecided. The applicants in Carvalho and Others v. European Union claim that European Union (EU) law does not limit greenhouse gas (GHG) emissions as strictly as is required by EU human rights and international law. The case note explains the parties in the case, the acts being challenged, the relief being sought, and the content and application of the relevant procedural and substantive law. The case is illustrative of the high barriers for direct access to the CJEU, and suggests how they might be overcome. It is also a laboratory for examining the interface of climate science, economics, and law. At this interface, available emissions budgets and the technical and economic feasibility of emissions reductions are calculated and made legally relevant. Carvalho is based on the applicants’ conviction that, where the EU assumes a regulatory competence such as that of GHG emissions reduction, it must exercise it in accordance with its human rights and international obligations.

Domestic climate change litigation is prospering across the globe to the extent of becoming a transnational phenomenon of growing importance. At the international level the Paris Agreement, although still in its infancy, has been established as the core element of the climate change governance framework. This article explores the still opaque relationship between domestic climate change litigation and the Paris Agreement. It is argued that dynamic interaction between domestic litigation and the Paris Agreement may improve the overall efficacy of both regimes. On the one hand, an examination of the Paris Agreement's architecture and provisions reveals pathways that are already being used or can be explored further in litigation. On the other hand, litigation can assist and complement the Paris Agreement with regard to its implementation and progress towards its overall goals. The result may deliver more than a multi-level perspective on climate change law. As it captures the law in action on different levels, the proposed ‘cross-level’ approach has due regard to the implications of the mutual supportiveness or complementarity of legal tools. It also thereby responds to the concern of whether the law can be of significant benefit in addressing complex global issues like climate change.

What scholars referred to as a climate change litigation ‘explosion’ in 2015 has today become an established movement which is unlikely to stop in the near future: worldwide, over a thousand lawsuits have been launched regarding responsibility for the dangers of climate change. Since the beginning of this trend in transnational climate litigation scholars have warned that the separation of powers is threatened where judges interfere with the politically hot issue of climate change. This article uses Jürgen Habermas's political theory on deliberative democracy to reconstruct the tension between law and politics generated by these lawsuits. This reconstruction affords a better understanding of the implications of climate change litigation: while the role of the judiciary as such remains unchanged, the trend is likely to influence the democratic legitimacy of judicial lawmaking on climate change, as it indicates an increasing realization that a sound environment is a constitutional value and is therefore a prerequisite for democracy.

Domestic courts enjoy generous attention in international political and legal climate change literature. As a result of the reluctance of national governments to pursue climate protection measures, courts are called on to enforce international climate goals. This article assesses two domestic climate change cases (the Thabametsi Case and the Vienna Airport Case) in the light of Anthea Roberts’ functional understanding of the role of domestic courts in international law. It argues that domestic courts play a pivotal role in linking international obligations of conduct with national obligations of result. This role depends on domestic contexts and, therefore, requires a comparative approach.