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.

Few issue areas exemplify the centrifugal forces that have prompted the emergence of global law scholarship better than the environment. With its propensity to blur or transcend conventional distinctions between national and international, public and private, and formal and informal, environmental governance offers a consummate case study to test the promise and perils of global law. In this article we situate global environmental law in the broader debate about lawmaking and application beyond the nation state, tracing the evolution and elusive boundaries of this nascent field. Our survey allows us to identify conceptual ambiguities and missed opportunities in the literature on global environmental law, including challenges to its normativity and legitimacy. From there, however, we proceed to outline a twofold opportunity for the global environmental law project: (i) an opportunity to enrich environmental law with more diverse and inclusive practices; and (ii) an opportunity for collaborative self-reflexivity by the scholars and practitioners of environmental law as these not only interpret and apply but, through their work, actively shape the content of the law.

Legal scholars rely heavily on vocabularies of ‘actors’, ‘agents’, and ‘experts’ to account for the fact that law does not develop by itself. However, the identities, idiosyncrasies, and individual professional contributions of law's people are rarely illuminated. This article suggests that the relative absence of people in transnational legal scholarship helps to explain some of its gaps. The task of bringing ‘human actors back on stage’ creates some new opportunities for transnational environmental law scholarship. It invites attention to both dominant and excluded voices. It offers a way of bridging the gap between the bureaucratic language of law and its lived reality. It also provides an understanding of why, despite ferocious attempts to roll back the advances of environmental law in some places, many scholars and practitioners find reason to be optimistic about the future of environmental law.

This article examines the international legitimacy of unilateral dam development in an international watercourse from the perspective of international water law. Drawing upon technical analysis over the Harirud River Basin, the article discusses probable negative impacts of unilateral dam development in Afghanistan on downstream Iran and Turkmenistan. Competing claims are analyzed to assess emerging transboundary damage under customary international water law. Applying these insights to the case study, this article explores how legal norms and principles can contribute to transboundary water cooperation. It investigates how equitable and reasonable utilization, as required by the United Nations Watercourse Convention, could be reached and whether current activities are in conformity with international norms. Based on this analysis and in the light of international customary law, the article questions the compatibility of unilateral control and capture of water resources in Afghanistan, particularly through the Salma Dam, with ‘equitable and reasonable utilization’ and ‘no significant harm’ rules. The article also argues that building the Salma Dam results in significant transboundary harm to downstream states. Hence, such harm could be considered as significant transboundary damage. Conclusions point to an understanding of water law as a form of institutional guidance in order to provide a transparent setting for transboundary water cooperation among riparian states.

This article provides a comprehensive empirical analysis of the composition, development and use of the List of World Heritage in Danger (IDL) under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. The statutory records of this Convention have been coded in order to generate an overview of the development and use of the IDL between 1978 and 2017. The quantitative data was further developed by reference to World Heritage and transnational law literature. A key finding of this article is that the IDL serves a dual purpose in regulation: firstly, as a ‘fire alarm’ to alert the international community of imminent dangers at World Heritage sites; secondly, as a non-compliance procedure used for ‘naming and shaming’ states that breach the rules. The findings in this article have relevance for heritage scholars and policy makers concerned with the governance of World Heritage as well as those with a broader interest in non-compliance procedures under transnational environmental law.

Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law in which we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so, first, by sketching the juridical-political context within which these statutes were drafted and adopted, and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part 4, in which we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience, which could be instructive for civil society groups, academics, politicians and legislatures in a transnational setting.

This article assesses current and proposed European Union (EU) climate and environmental law, and the legal instruments associated with the Common Agricultural Policy (CAP), to see whether soil carbon sequestration is sufficiently promoted as a promising example of ‘climate-smart agriculture’. The assessment shows that current and proposed policies and instruments are inadequate to stimulate large-scale adoption of soil carbon projects across Europe. Given the identified structural flaws, it is likely that this is true for all climate-smart agricultural practices. An alternative approach needs to be developed. Under EU climate policy, agriculture should be included in the EU Emissions Trading System (ETS) by allowing regulated industries to buy offsets from the agricultural sector, following the examples set by Australia and others. The second element of a new approach is aimed at the CAP, which needs to be far more focused on the specific requirements of climate change mitigation and adaptation. Yet, such stronger focus does not take away the need to explore new income streams for farmers from offsets under the ETS, as the CAP will never have sufficient funds for the deep and full transition of Europe’s agriculture sector that is needed.

In 2015, a Pakistani court in the case of Leghari v. Federation of Pakistan made history by accepting arguments that governmental failures to address climate change adequately violated petitioners’ rights. This case forms part of an emerging body of pending or decided climate change-related lawsuits that incorporate rights-based arguments in several countries, including the Netherlands, the Philippines, Austria, South Africa, and the United States (US). These decisions align with efforts to recognize the human rights dimensions of climate change, which received important endorsement in the Paris Agreement. The decisions also represent a significant milestone in climate change litigation. Although there have been hundreds of climate-based cases around the world over the past two decades – especially in the US – past and much of the ongoing litigation focuses primarily on statutory interpretation avenues. Previous efforts to bring human rights cases have also failed to achieve formal success. The new cases demonstrate an increasing trend for petitioners to employ rights claims in climate change lawsuits, as well as a growing receptivity of courts to this framing. This ‘rights turn’ could serve as a model or inspiration for rights-based litigation in other jurisdictions, especially those with similarly structured law and court access.

This article argues that the rise of transnational regulation has a transformative impact on law. It examines the field of transnational environmental regulation to show that its proliferation challenges the continued appropriateness of representations of law as (i) territorial, (ii) emanating from the state, (iii) composed of a public and private sphere, (iv) constitutive and regulatory in function, and (v) cohesive and regimented. Instead, law is increasingly perceived as (i) delocalized, (ii) flowing from a plurality of sources, (iii) organizationally inchoate, (iv) reflexive and coordinating in function, and (v) polycentric. Together, these shifts in perception amount to a transformation that the article identifies as the transnationalization of law. The article then explores three responses to the transnationalization of law. It distinguishes responses motivated by a desire to reclaim the traditional conception of law from those that seek to reconstruct law at the transnational level and responses that advocate a context-responsive reconceptualization of law. Each response, it will be shown, creates a different set of opportunities for, and challenges to, the relevance of law for transnational regulation.

This article argues that the involvement of technical experts in decision making promotes better environmental results while simultaneously recognizing the uncertainty in science. India’s record as a progressive jurisdiction in environmental matters through its proactive judiciary is internationally recognized. The neoteric National Green Tribunal of India (NGT) – officially described as a ‘specialised body equipped with necessary expertise to handle environmental disputes involving multi-disciplinary issues’ – is a forum which offers greater plurality for environmental justice. The NGT, in exercising wide powers, is staffed by judicial and technical expert members who decide cases in an open forum. The experts are ‘central’, rather than ‘marginal’, to the NGT’s decision-making process.

This article draws on theoretical insights developed by Lorna Schrefler and Peter Haas to analyze the role of scientific experts as decision makers within the NGT. Unprecedented interview access provides data that grants an insight into the internal decision-making processes of the five benches of the NGT. Reported cases, supported by additional comments of bench members, illustrate the wider policy impact of scientific knowledge and its contribution to the NGT’s decision-making process.

Meat production and the transport sector contribute almost equally to global warming. However, unlike the transport sector, in terms of climate change policies meat production is relatively unregulated. Many scientists have called for a meat tax as a means of reducing consumption but governments and politicians have not responded. Has the law been an obstacle to the acceptance of a meat tax? To address that question, this article analyzes three examples of European Union (EU) taxes that could be imposed on the consumption of domestic and imported meat, and examines them in relation to the international climate change regime, human rights law, and the legal regimes of the World Trade Organization and the EU. It shows that, if carefully designed, an EU meat tax is consistent with these bodies of law. To address adequately the industrial sectors that give rise to global warming, governments will need to overcome the taboo relating to the concept of a meat tax.

There is no definitive approach to assessing the effectiveness of international environmental regimes. In order to explore the regime established by the 1979 Geneva Convention on Long-Range Transboundary Air Pollution this article broadly integrates the approach to effectiveness taken by Peter H. Sand in The Effectiveness of International Environmental Agreements, and Daniel Bodansky in The Art and Craft of International Environmental Law. The article finds that compliance, institutional, and normative effectiveness can be evaluated relatively confidently. An effectiveness assessment of the long-range transboundary air pollution (LRTAP) regime indicates that, on the whole, it has helped states to reach agreement on contentious issues and achieve results in air pollution reduction. However, it faces significant challenges with regard to participation, implementation procedures, empowerment of domestic stakeholders, and funding. The article provides an in-depth and up-to-date look at the LRTAP regime, including the most recent amendments and its relationship with European Union and international law.

There is a compelling argument for developing a low carbon emissions trajectory to mitigate climate change and for doing so urgently. What is needed is a transformation of the energy sector and an ‘energy revolution’. Such a revolution can only be achieved through effective energy governance nationally, regionally, and globally. But frequently such governance is constrained by the tensions between energy security, climate change mitigation and energy poverty. At national level, there is a chasm between what is needed and what governments do ‘on the ground’, while regionally and globally, collective action challenges have often presented insurmountable obstacles. The article examines what forms of energy law, regulation and governance are most needed to overcome these challenges and whether answers are most likely to be found in hierarchy, markets, or networks.