Today, numerous constitutions provide for a rights-based approach to environmental protection. Based as they are on an instrumentalist rationality that seeks to promote human entitlements to nature, the majority of these rights remain anthropocentric. Although there are growing calls within academic and activist circles to reorient rights alongside an ecocentric ontology, only one country to date has taken the bold step to bestow rights on nature in its constitution. The Ecuadorian Constitution of 2008 announces the transition from a juridical anthropocentric orientation to an ecocentric position by recognizing enforceable rights of nature. This article critically reflects on the legal significance of granting rights to nature, with specific reference to Ecuador’s constitutional experiment. It first provides a contextual description of rights in an attempt to illustrate their anthropogenic genesis, and then explores the notion of environmental rights. The following part traces the discourse that has developed over the years in relation to the rights of nature by revealing aspects of an ecocentric counter-narrative. The final part focuses specifically on the Ecuadorian constitutional regime and provides (i) a historical-contextual discussion of the events that led to the adoption of the rights of nature; (ii) an analysis of the constitutional provisions directly and indirectly related to the rights of nature; and (iii) a critical appraisal of whether those provisions, so far, measure up to the rhetoric of constitutional ecocentric rights of nature in that country.

This article explores the development and enforcement of the Republic of Korea’s Soil Environmental Conservation Act (SECA). It argues that, although Korea has adopted the statutory model of the United States (US) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and US case law, it has formulated SECA to devise a Korean model of an effective and reasonable liability scheme based on the Korean regulatory context. The original SECA, especially its retroactive liability provision, was declared unconstitutional by the Constitutional Court of Korea, because it violated ‘the principle of legitimate expectations protection’. Since then, SECA has been amended to include more diverse categories of polluter and to provide more adequate defences. The development process of this Korean model can be instructive for less developed countries that urgently need to address soil pollution but are not yet equipped with the necessary environmental statutes and regulatory infrastructure and, thus, are vulnerable to environmental risks.

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 examines the manner in which ‘macro’ legal analysis can potentially assist in overcoming some of the issues that are faced in the understanding and development of global environmental governance (GEG). It argues that the analysis of law through separate and distinct disciplines – such as environmental law, trade law, corporate law, and human rights law – results in what this article refers to as ‘micro’ legal analysis. As such, it contends that this can have the effect of creating obstacles in the development of coherent and effective legal and policy choices related to the protection of the environment. It illustrates these arguments with examples of practical problems that have arisen from the separation of legal issues in practice and provides the theoretical underpinnings, based on the critique of international lawyers, for the application of ‘macro’ legal analysis. In other words, it argues for a form of analysis that would consider the entire range of relevant legal disciplines in a unitary process. It then provides a methodology for the development and application of ‘macro’ legal analysis in relation to environmental issues. Finally, it considers the potential that this approach could have within the field of GEG and comments on the implications that it could have for the way in which lawyers are trained in the future.

While 148 of the 196 national constitutions in effect today manifest some form of environmental constitutionalism, the fact that some states have not adopted such provisions suggests that their spread is not inexorable. This article investigates the factors which affect whether a state adopts environmental constitutionalism. By undertaking a historical analysis of those countries which have so amended their constitutions, it identifies the context in which the constitutional change takes place as a significant consideration. The context of constitutional change influences the amendment process, which is then opened up to a range of other factors, both external (learning/persuasion, acculturation/emulation) and internal (political leadership, public and sectoral engagement, constitutional ideology, national environmental damage), all of which are considered by examining previous efforts to enshrine environmental constitutionalism. The article concludes by highlighting four specific responses that are key to successful amendment processes, namely: capitalizing on crisis situations; ensuring that economic concerns are adequately addressed; leveraging the support of the public and politicians; and linking environmental protection to national values.

Over several years, the European Union (EU) has gradually developed its legal framework to assist in the proper application of EU environmental protection rules, both at Member State as well as at EU institutional levels. This article focuses on one particular and relatively recent emerging element of that supranational framework, namely the range of EU secondary legislative measures and provisions concerning the management of environmental inspections. In addition to appraising the extent of EU legislative engagement in relation to environmental inspections, this article reflects on certain challenges of a constitutional nature that the EU will need to address in the future if its intervention in this particular policy field is to continue to develop.

The work on ‘regime complexes’ – loosely coupled regimes linked through non-hierarchical relationships – provides a lens for understanding the increasing density of international rules and institutions. However, the role of private authority in the regime complex – situations where non-state actors set rules or standards that other actors adopt – has only recently received academic attention. In this article, we ‘unbundle’ the concept of the regime complex in two novel ways. Firstly, we argue that an accurate depiction of any regime complex must also include private authority. Secondly, using examples from environmental governance, we carefully elaborate four specific mechanisms through which public and private authority interact, demonstrating the ways in which private authority can improve the problem-solving capacity of regime complexes. In short, a full understanding of the contributions of private authority to solving environmental problems requires examining its interactions with public rules and institutions.

International wildlife law is concerned with the conservation of sentient species, but generally ignores the welfare of individual animals. It therefore does not reflect a recognition of the moral worth of animals and perpetuates the dichotomy between conservation and welfare. It is the primary goal of this article to ascertain how welfare concerns may be incorporated into international wildlife law in order to ensure that it takes cognizance of the moral worth of animals. The article advocates an injection of ethics, via a welfare-centric approach, into wildlife law in order to escape the dichotomy between conservation and welfare in relation to wild animals, and so to advance the progressive development of law that is conducive to wildlife protection rather than merely to its conservation.

Following the European Union (EU) experience, an increasing number of countries are establishing an Emissions Trading Scheme (ETS). The EU ETS often serves as a ‘model’ despite fundamental differences in the receiving environment. In the EU liberalized energy markets, carbon prices are intended to raise the cost of carbon-intensive energy and thereby stimulate cleaner alternatives. In contrast, many emerging economies continue to regulate energy investments and prices, which may insulate consumers and producers from the impact of an ETS. To avoid this risk, energy economists advocate EU-style energy market reforms as a prerequisite to the introduction of the ETS concept abroad. By focusing on the cases of China, Kazakhstan, and Russia, this article highlights the limits on the exportation of the EU liberalization model and argues that, instead of energy reform, the ETS must be reconceptualized as a mechanism that integrates the regulated energy market paradigm in emerging economies.

Transparency is fundamental to environmental governance. It promotes public trust, goodwill, and credibility in environmental decision making. It also ensures that monitoring and enforcement of emissions reduction targets are efficient and effective. As the impacts of climate change increase, it is urgent that scholars and policy makers develop and test criteria for transparency in both the calculation of emissions reductions and the public reporting of emissions. This article highlights basic principles of transparency that should inform such criteria and that may be applied on a transnational basis. We also examine China’s recently implemented pilot emissions trading schemes and find that the approach in China does not yet comply with our suggested principles. Nevertheless, the positive direction of environmental governance in this region is encouraging.

Examples abound of national and international legal developments that indicate growing concern and respect for animals. However, a key barrier remains: animals are not recognized as legal persons and therefore do not have standing to pursue independent legal action. This significantly limits the scope for legal redress when animals’ interests are harmed. This article examines recent attempts in the United States and Europe to establish standing for animals via strategic litigation and the barriers that have so far undermined this project. The article argues that, despite their lack of success to date, cases that seek to establish standing for animals should continue to be pursued. Societal views about the value of animals’ lives are continually evolving such that these cases may soon be successful. Furthermore, even if unsuccessful, these cases help in creating the socio-cultural space required to redefine the human–animal divide and potentially transform animals into rights bearers.

English common law and United Kingdom legislation provide various – overall liberal – jurisdictional grounds for hearing foreign tort claims. The article examines these grounds with reference to recent and ongoing oil pollution nuisance litigation involving Royal Dutch Shell Plc and its Nigerian subsidiary operating in the Niger Delta. Particular attention is given to the factors taken into account by the court in exercising its discretion to allow service out of the jurisdiction in cases of pollution taking place abroad under the principle of forum non conveniens. Following the widely commented decision of the United States Supreme Court in Kiobel v. Royal Dutch Petroleum Corporation, which ruled against the extraterritorial application of the Alien Tort Statute, it is easy to forget that the rules of jurisdiction vary from country to country and that different legal systems apply similar concepts in often radically different ways. Attention is also given to the future development of English jurisdictional law and practice in the context of environmental nuisance.

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.

Discourses on ‘climate migration’ have played an instrumental role in initiating negotiations on loss and damage under the United Nations Framework Convention on Climate Change (UNFCCC). Yet, to date, the framing of climate migration has not been clear: it has been considered as a tool for reducing loss and damage (hence essentially a form of adaptation) or, alternatively, as a source of loss and damage for the migrants or for other concerned communities. Moreover, proposed approaches to address climate migration as a form of loss and damage have extended beyond compensation, and remain controversial among developed nations. In the highly politicized field of migration governance, however, this article submits that policy support and guidance in addressing loss and damage could prompt dangerous forms of political interference, such as the imposition of a Western objective of containing migrants to the Global South. It is thus suggested that top-down migration policies may not help vulnerable nations who face loss and damage in the context of climate migration.

In the context of sustainable development, both developed and developing countries are implementing policies that encourage economic growth, environmental protection and social well-being in resource decisions. According to the 2012 Rio+20 Declaration, market-based instruments that complement regulations can offer an economically efficient push to sustainable growth. Market-based instruments, such as payments for ecosystem services (PES) and other market incentives, may play a crucial role in enhancing the livelihoods and wider well-being of poor people. However, for economic tools such as PES to prove valuable in managing natural resources, the decision-making and implementation processes must integrate adequate rights allocation and participatory mechanisms. This article examines forest ecosystem services in the context of the mangrove reserve forest of the Sundarbans in Bangladesh. It is a UNESCO World Heritage site and one of the largest remaining areas of mangroves in the world with an exceptional level of biodiversity. The article argues for a more realistic and equitable approach to PES projects in Bangladesh. It underscores the need for effective participatory tools, third-party monitoring and multi-service PES schemes to improve multiple mangrove ecosystem services in the Sundarbans.

The proper division of responsibility for environmental protection between national and state governments has long been the subject of fierce debate. During the 1970s the United States Congress decided to shift the most important environmental responsibilities from state governments to the federal government. The main reason for this decision was to prevent a ‘race to the bottom’ in that states competing for industries could otherwise be lax in implementing and enforcing federal environmental standards. Yet, some scholars have argued that there could just as easily be a ‘race to the top’ among states as they compete to attract people and businesses concerned with environmental protection. China, in turn, is plagued with severe air and water pollution and soil contamination, which is attributed largely to ineffective enforcement of its national environmental laws. This article investigates whether China’s experience confirms the race-to-the-bottom theory. It demonstrates that devolution of responsibility for environmental protection to lower levels of government tends to result in lax implementation and enforcement of national environmental laws, particularly where national governments also create strong incentives for economic growth. It concludes that China’s highly devolved system of environmental governance is consistent with this theory, even if it does not provide conclusive evidence of its correctness.

Economic arguments in support of linking emissions trading schemes suggest that such linking could provide access to lower cost abatement options and increase market stability. The decisions of whether and how to link emissions trading schemes often focus on the design features of the relevant schemes, but an additional factor which has the potential to undermine the efficiency of linked schemes is taxation. This article systematically tests two alternative approaches to the direct (income) taxation of cross-border transfers of emission allowances for differential tax outcomes. Four hypothetical transactions are considered under three different linking mechanisms and on the assumption that a tax treaty based on the OECD Model Tax Convention on Income and on Capital is in force. This analysis evidences that, in some cases – and especially if the relevant jurisdictions adopt different approaches to the taxation of allowance transactions under domestic law – there is the potential for timing differences or double taxation that could impact on the efficiency of the linked trading schemes. It is therefore important for tax implications to be considered as part of any linking proposal.