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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.
This article begins by questioning the capacity of the concept of sustainable development to stabilize social reproduction and foster global justice. Based on interdisciplinary perspectives on global governance, it discusses the way in which global law fails to cope with the resonance of advanced capitalism in the world society and ecological systems. Our analysis focuses on the regulatory and institutional features of three interwoven functional regulatory regimes (global finance, energy, and environmental protection), which demonstrate structural governance dysfunction at the expense of ecological integrity and justice in the global realm. The article further examines the capacity of global law to foster a ‘compositive’ and ‘compensatory’ contribution to global justice and the stability of the Earth system through global constitutionalism. In this context, it concludes that Neil Walker's global law approach provides a fertile analytical framework for describing the patterns of interaction between different species of global law but proves to be particularly ‘slippery’ in its normative propositions regarding the gap between global law and justice. Drawing from the Earth system approach, we argue in favour of a global material constitutionalism, recognizant of ecosystemic boundaries and socio-environmental impacts of the global socio-economic metabolism. We consider that the gap between global law and global justice is best addressed by devising more deliberative patterns of transnational governance, as well as ecosystem and human rights approaches, in order to accommodate the fair and equitable internalization of material limits across global regulatory regimes that act as functionally differentiated economic constitutions of advanced capitalism.
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 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.
This commentary considers the intellectual property (IP) system from a global environmental law perspective by exploring the extent to which patent-related treaties, such as the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights and the World Intellectual Property Organization Patent Cooperation Treaty, can facilitate implementation of global environmental standards in the field of biodiversity law. It provides practical guidance to countries that wish to introduce patent disclosure-related mechanisms into their legal systems with a view to mainstreaming instances of global justice, fairness and equity, and raises awareness of the limitations arising from their extant IP obligations. Global environmental law standards have exercised an undeniable influence on the political discourse in international IP policy making in the field of patent disclosure. Still, many patent disclosure requirements that pre-date the Nagoya Protocol apply only to genetic resources the provenance of which is the same country that established the requirement. However, if a country designates its patent or IP office as a compliance checkpoint under the Nagoya Protocol, then the disclosure requirement should encompass at least the genetic resources originating from all countries that are contracting parties to this instrument. This could allow the fulfilment of a core monitoring obligation of the latter, while enabling wider synergies and transparency within the IP system.
Big Data is now permeating environmental law and affecting its evolution. Data-driven innovation is highlighted as a means for major organizations to address social and global challenges. We present various contributions of Big Data technologies and show how they transform our knowledge and understanding of domains regulated by environmental law – environmental changes, socio-ecological systems, sustainable development issues – and of environmental law itself as a complex system. In particular, the mining of massive data sets makes it possible to undertake concrete actions dedicated to the elaboration, production, implementation, follow-up, and adaptation of the environmental targets defined at various levels of decision making (from the international to the subnational level).
This development calls into question the traditional approach to legal epistemology and ethics, as implementation and enforcement of rules take on new forms, such as regulation through smart environmental targets and securing legal compliance through the design of technological artefacts. The entry of Big Data therefore requires the development of a new and specific epistemology of environmental law.
Considerable global attention has focused on the plight of sharks and the implications for ocean health. Scientists point to the importance of sharks for healthy ecosystems and the consequences of their disproportionate removal; yet legal and management responses vary considerably. In some states, negative human-shark interactions have led to shark culls and swimming bans, and have prompted public fears about future activities that might attract species closer to coasts and communities. In other countries, sharks are respected, conserved and utilized only as a non-consumptive marine-based tourism resource. This article argues that culture plays an important role in the variety of legal responses to the conservation and management of sharks. By examining the development of shark sanctuaries across the Indian and Pacific Ocean island states, this analysis highlights the legal approaches taken, and the varying socio-cultural values that have influenced these responses. Understanding the role of culture will remain important as these laws mature, because it may affect implementation, compliance, and ultimately the achievement of conservation outcomes.