Between 1966 and 1996, France conducted 193 nuclear weapons tests in French Polynesia, including 41 detonations at or above ground level. This chapter explores the history of legal and diplomatic contestations of the French right to conduct nuclear tests in the South Pacific through the lens of environmental violence. Polynesians and other Pacific stakeholders saw France’s use of the South Pacific as a nuclear proving ground as an act of colonial violence and sought, unsuccessfully, to prevent the imposition of any additional radiological risk in Polynesia. Data gaps, information asymmetries, and the inherent causal uncertainty surrounding harms from exposure to ionizing radiation frustrated both prospective and retrospective legal recourse, as Pacific Islanders struggled to prove that they would be – or, in ensuing decades, that they had in fact been – harmed by French nuclear tests. The complex dynamics around radiological risk provoked anguish not only during the period of nuclear testing, but also afterwards, as individuals who developed potentially radiogenic conditions continued to navigate challenging victim compensation landscapes. This chapter illustrates the particular difficulties of coming to terms with causally complex, underdetermined harms in modern contexts of environmental violence.

In several Latin American countries, the state has to consult impacted Indigenous communities before approving new hydrocarbon and mining development, in accordance with regulations that govern these “prior consultation” processes. However, when navigated by extractivist states, these formal norms have blocked the very participation they were intended to encourage and have facilitated state disregard of both Indigenous territorial rights and the environmental destruction caused by large-scale development. These unanticipated outcomes stem from the measures the state must take to determine whether a hydrocarbon or mining project directly impacts an Indigenous community and therefore requires prior consultation. To make this determination, the state must define lands to which Indigenous communities hold rights, and the area impacted by the proposed development. State agencies that are eager to approve new extraction have overlooked – and in some cases actively dismissed – both the impacts of mining and hydrocarbons, and the geographical reach of Indigenous authority, in contexts in which communities claim, but lack title to damaged lands. This chapter demonstrates how prior consultation has encouraged the state to overlook, and even actively deny, Indigenous territorial rights and environmental impacts of extraction through analysis of three important Indigenous mining and hydrocarbon conflicts in Bolivia, Colombia, and Peru.

Recent developments in international environmental law are increasingly characterized by the concern with ensuring the effectiveness of existing international environmental obligations, as well as by a growing awareness of the need to adopt a comprehensive and integrated approach in the management of natural resources. Non-compliance mechanisms are generally assumed to be better than courts for achieving these aims. This chapter assesses this assumption through the analysis of the Gabčíkovo-Nagymaros and Bystroe Canal cases. Despite a judgment of the International Court of Justice (ICJ) in Gabčíkovo-Nagymaros and the triggering of non-compliance procedures in Bystroe Canal, both cases are still pending or have remained substantially unsettled. In particular, this chapter compares the approaches adopted by the ICJ and the competent monitoring bodies, evaluating their respective contributions to: balancing the parties’ conflicting interests; stimulating meaningful and fruitful co-operation of the parties towards an agreed solution; integrating the interests of the parties concerned with the interests of other States, individuals or group of individuals and the global environment.

What would it mean to say that the public trust doctrine is transnational law? This chapter addresses that question. My main conclusion is that the public trust doctrine is a transnational legal norm but not a transnational legal order. To unpack this claim, I apply concepts from Gregory Shaffer and Terence Halliday’s theory of transnational legal orders (TLOs). My claim is that the public trust doctrine is not a transnational legal order in the way that, say, the rule of law is a transnational legal order. In using the public trust doctrine as a case study of the transnational dimensions of public fiduciary law, this chapter aims to introduce an empirically focused socio-legal approach into conversations about public fiduciary theory. Some scholars have made the conceptual claim that public fiduciary law is transnational in scope. In response, this chapter suggests the need for rigorous analysis of normative settlement (or lack thereof) around public fiduciary norms. To the extent that public fiduciary theory aims to reform transnational law, it must confront the challenges of achieving normative settlement in legal practice. The public trust doctrine’s transnational career is a case study in these challenges.

One of the main characteristics of international law is its claim to ‘universality’. International law’s body of rules and practices is generally supposed to apply to every state and individual member of the world. This chapter challenges the perception that international law cannot be viewed through comparative lenses, as well as the idea that legal comparativism is a set of methodologies to contrast only domestic and regional legal systems and concepts. The underlying argument of the chapter is that behind common rules and shared aspirations of principles, members of an international system may adopt very different approaches, doctrines and procedures of internalisation. That invites an important role for comparativism. The chapter exemplifies this broad research agenda through a panoramic analysis of international human rights law and international environmental law, in both cases looking at foreign relations law and its constituencies in different legal realities.

The Precautionary Principle has primarily found a place within the international environmental law regime, and to some extent, the international human rights regime. It is also, arguably, considered to be a principle of customary international law. While the international investment law regime has traditionally resisted (and still does) incorporating principles from other regimes, a few innovative International Investment Agreements (IIA) have gone against the grain and expressly incorporated principles of international environmental and human rights law. This chapter draws upon a clause in the Nigeria-Morocco Bilateral Investment Treaty (BIT) of 2016 which mandates that both the investor and the host state shall apply the precautionary principle to their investments. It will enquire whether the precautionary principle has achieved that normative status of customary international law which allows it to be binding on host states by virtue of inclusion in a BIT. Second, it will enquire whether the precautionary principle can be binding on foreign investors as non-state actors.

In this chapter, Malgosia Fitzmaurice examines the procedures and mechanisms for the peaceful settlement of environmental disputes. This chapter deals with the issue of classical settlement of environmental disputes and the relatively new and still-evolving phenomenon of so-called non-compliance procedures, which are an element of the legal structure of Multilateral Environmental Agreements and administered by the Conferences of the Parties/Meetings of the Parties. This chapter explores the legitimacy of these procedures and focuses in particular on the question of State consent. It explains that, while classical means of dispute settlement do not present questions of legitimacy, their inherent bilateralism is ill-suited for the protection of the environment. Non-compliance procedures may be a more effective tool in light of their multilateral nature, and recent trends based on co-operative efforts may eliminate, to some degree, questions of legitimacy.

Chapter 1 introduces the main themes of the book. It highlights three vantages on what it means to value nature on an aesthetic basis – philosophies of environmental aesthetics, aesthetic theories for the visual arts, and practices of international environmental law. It provides an outline of the book over the eight chapters, explaining how the different vantages on nature’s aesthetic value inform the analysis of photographic images in the book’s case studies of the World Heritage Convention, the Whaling Convention and the Biodiversity Convention. An overview of the international materials examined, and the visual art analysed, is provided. Here, particular mention is made of the book’s use of the rules and documentation of the decision-making processes of the World Heritage Committee, the International Court of Justice, and the Conference of the Parties to the Biodiversity Convention. In a final section, the scholarly theories that inform the book’s methods of analysis are introduced. This includes discussion of academic literature on law and image, sometimes called visual jurisprudence, and debates among philosophers of environmental aesthetics and theorists of visual art.

International environmental law (‘IEL’) began to emerge as a distinct subdiscipline of international law in the 1970s. Since then, it has assumed critical importance in helping to maintain the ecological systems upon which all life on planet Earth depends. It is continuing to develop and is relevant to all states and communities, affecting a wide range of human activities and concerns. This chapter briefly traces the history of IEL and sets out some recent institutional and policy developments, including the United Nations Environment Assembly and the UN Sustainable Development Goals. It also looks at concerted attempts to fill gaps in the field. Given the vastness of the subject matter, the chapter does not purport to be a comprehensive or in-depth analysis. It addresses the main organising principles of IEL, both established and emerging. It provides an overview of treaties (also referred to as multilateral environmental agreements or ‘MEAs’) in several key subfields, including regimes addressing the atmosphere, transboundary pollution, chemicals and wastes, biodiversity, and land degradation. It also includes a case study on world heritage and its implementation in Australia.

Maritime environmental crimes are one of the main causes of destruction of marine ecosystems and devastation of marine life. Although no single State is able to tackle the causes and consequences of maritime environmental crimes, there is little international cooperation in combating these crimes, mostly due to the perception that they are a matter exclusively subject to national law. Thus far, joint law enforcement operations to combat maritime environmental crimes are rare and take place on a case-by-case basis. Moreover, few States have passed legislation on maritime environmental crimes. In order to resolve the inadequacy of available legal tools to tackle maritime environmental crimes, a new global paradigm for protection and preservation of the marine environment is required: one that supports this concept within international law.

This chapter examines the ICJ’s influence on international environmental law. Drawing on concrete examples, the author identifies six ways in which the Court’s jurisprudence has contributed to environmental law: by articulating foundational principles; by acting as a gatekeeper for customary international law; by elaborating existing principles; by interpreting environmental agreements; by valuing environmental harms; and by incorporating environmental considerations into other areas of international law. The author reflects on potential future evolutions of the Court’s role in the international environmental law space, given the increasing number of disputes that the Court has addressed in this field in recent years.