Under what conditions should epistemic institutions (institutions that provide policy-relevant scientific advice) be integrated into international legal institutions – for example, the Conference of the Parties to the United Nations Framework Convention on Climate Change? Following work in law and economics on the theory of the firm, this article argues that where states will not implement environmental policies absent a collective decision to do so, greater hierarchical control of epistemic institutions by legal institutions may be necessary to ensure the credibility and availability of a usable scientific record. Hierarchy creates credibility because it allows all states necessary for cooperation in the legal institution to oversee the production of the scientific record that provides the basis for international legal rules. Hierarchy thus enhances the effectiveness of international law as a coordination tool, even at the expense of the autonomy of the scientific process. By contrast, where collective action is not necessary because states will unilaterally regulate an environmental problem once scientific uncertainty has been reduced, epistemic and legal institutions should be fragmented to ensure the unbiased production and dissemination of scientific information. In such situations, the credibility of the scientific record is demonstrated by decentralized adoption of science-based regulation.

There is growing interest in the use of market mechanisms, such as offsetting and payments for ecosystem services, to further the conservation of biodiversity. The specific needs of biodiversity mean that this approach faces significant challenges in terms of defining the units that can be the subject of the economic or market devices, of ensuring that such mechanisms do deliver conservation gains and of establishing appropriate governance arrangements. There are also ethical concerns that a market approach entails a commodification of nature which sacrifices some of the very elements which make nature valuable to us. The market-based schemes currently being operated and devised should be studied carefully to see how successfully these challenges can be met.

The main objective of this article is to develop a better understanding of the structure of transnational regulatory scientific institutions (RSIs). We will argue that the hybrid political-legal-epistemic nature of RSIs creates a continual tension between their hierarchical and policy-driven structure and the paradigms of objectivity, parallelism and non-centralism that characterize science. The article examines the way in which RSIs cope with the challenge of maintaining their epistemic/political authority against the tensions generated by their hybrid structure. The article focuses on three institutions: the Intergovernmental Panel on Climate Change (IPCC), the International Commission on Non-Ionizing Radiation Protection (ICNIRP), and the International Competition Network (ICN), and examines how this challenge manifests itself in the context of these three bodies. The article links the discussion of hybrid authority with the problem of scientific uncertainty. It concludes with a discussion of the optimal design of RSIs.

The emergence of market mechanisms for the protection of biodiversity and ecosystem services in recent years has been portrayed by most conservation institutions and epistemological frameworks as an unprecedented opportunity for the conservation of nature. This article shifts the focus from the improved effectiveness arguments concerning such mechanisms to examine their institutional and political context and origins. It outlines the field of transnational biodiversity markets and uncovers the normative biases it displays. The regulatory vocabulary of ‘market mechanisms’ is juxtaposed to the more explicit ideological approach professed by the critics of neoliberalism. The argument is that, rather than an inevitable component in contemporary conservation governance, market mechanisms imply a set of contested choices for certain values, a particular economic development trajectory, a particular understanding of the biodiversity problem, and a weak role for legal obligations. Transnational environmental law needs to establish its interest beyond that of the regulation literature if it is to account for the proliferating movements around the world in favour of a reasserted normative guidance for the markets and against the process of marketing the market.

‘Nanotechnology’, the manipulation of matter on an atomic and molecular scale, is projected to profoundly alter manufacturing systems globally. However, along with the promise that these new technologies hold, there are concerns about the possibility of unknown latent risks to human health or the environment. Under current scientific uncertainties, regulators explore new strategies for overseeing the development and safe use of nanotechnologies. Information disclosure plays a prominent role among these strategies. Thus far, however, the informational strategies actually employed by governments have focused on means by which to collect information from industry, and the types of information requested do not allow for an adequate health risk assessment. Moreover, little effort has been made to make the information collected publicly available. The article addresses the question of what information is disclosed (or not disclosed) and why, highlighting the socio-political context within which these decisions are made, and their democratic implications. It argues that the current ‘light-touch’ disclosure-based approach may lie in technical, evidence-based, ‘risk’ conception, which is common to both the United States and the European Union. It further argues for a more democratic ‘governance-by-disclosure’ approach, which allows society to prioritize risks that it is willing to take to enjoy the benefit of technological progress.

Markets in ecosystem services have the potential to provide financial incentives to protect the environment either in lieu of or in addition to more traditional regulatory programmes. If these markets function properly, they can provide enhanced levels of environmental quality or more efficient mechanisms for protecting natural resources that provide vital services to humans. The theoretical benefits of ecosystem services markets may be undercut, however, if care is not taken in creating the legal infrastructure that supports trading to ensure that trades actually provide the promised environmental benefits. This article identifies five essential pillars of an ecosystem services market regime that are necessary to provide operational accountability safeguards. These include financial safeguards, verifiable performance standards, transparency and public participation standards, regulatory oversight mechanisms, and rule of law safeguards. The article assesses whether the laws of the United States (US) and European Union (EU) are well designed to provide such accountability. It concludes that despite recognition of the risk of market manipulation and outright fraud, regulators in the US and the EU to date have responded to these risks largely in an ad hoc and incomplete fashion, rather than embedding the mechanisms for operational accountability discussed in this article into the regulatory framework that governs ecosystem services trading markets.

In 2006, the EU adopted the REACH Regulation – the world’s most demanding chemicals regime so far. Even before it entered into force, the European Commission declared its ambition to make REACH a global standard, and several authors see a potential for far-reaching influence via the ‘California effect’, as conceptualized by David Vogel. Economic preconditions are indeed fulfilled with the chemicals industry being highly globalized, the EU as an attractive export market and REACH applying to imports. Following Vogel, firms exporting to the EU might have an incentive to lobby for similar requirements in their country. This article examines whether American chemical producers do, indeed, push for EU-like provisions in the debate on US policy reform. While there is some influence on the US, it is shown that REACH does not (yet) trigger a ‘California effect’. The business case does not seem to be strong enough.

Our point of analytical departure is that the state of the global environment is deteriorating despite the accumulating body of international environmental law. By drawing on the recent Earth system science concept of interlinked planetary boundaries, this article makes a case for a goal-oriented, purposive system of multilateral environmental agreements. The notion of ‘goal’ is used here to mean a single, legally binding, superior norm – a grundnorm – that gives all international regimes and organizations a shared purpose to which their specific objectives must contribute. A bird’s eye view of the international environmental law system reveals how the absence of a unifying goal has created a condition that is conducive to environmental problem shifting rather than problem solving. We argue that a clearly agreed goal would provide the legal system with a point of reference for legal reasoning and interpretation, thereby enhancing institutional coherence across Earth’s subsystems. To this end, this article concludes by observing that the protection of the integrity of Earth’s life-support system has emerged as a common denominator among international environmental law instruments. Accordingly, we suggest that this notion is a strong candidate for the overarching goal of international environmental law.

Wild animals periodically encounter difficulties or suffer injuries that require human intervention and assistance. The natural assumption is that a surviving animal will, where viable, be released back to the wild. But is there a formal legal obligation for a rescuer to do so? This question arose recently in the context of ‘Morgan’, a female killer whale rescued in poor health in Dutch waters. Morgan was successfully restored to full health, but the Dutch authorities subsequently declined to repatriate her to the wild and, controversially, transferred her to a zoological facility in Spain. This article examines the largely unexplored legal obligations incumbent upon the Netherlands in respect of rehabilitated cetaceans, in the process exposing certain problems of clarity and consistency within the present regulatory framework. By necessary implication, this article identifies emerging issues of interpretation posed by the Morgan saga, illustrating the tensions between animal welfare and nature conservation – especially in the transboundary context – and concluding firmly that the Dutch authorities erred legally in making their final decision.

In the wake of the Global Financial Crisis and worsening collateral social and environmental problems, socially responsible investing (SRI) has garnered more interest internationally as a potential civilizing influence on the financial economy. In particular, SRI is increasingly conceptualized as a means to promote environmentally sustainable development by disciplining financial markets to be more attentive to their ecological impacts. In this sense, SRI emerges as a putative form of transnational governance that utilizes non-state actors and mechanisms to promote sustainability in an economic sector that traditionally has had little accountability for its environmental performance. But as a largely voluntary movement, with rudimentary legal support, SRI so far has wielded limited clout.

A hindrance to the aspirations of SRI is deficiencies in its rationales. This article critiques the main theories advanced to justify SRI from the perspective of their contribution to promoting environmental sustainability: the complicity-based doctrine, leverage-based responsibility, and the universal owner thesis. Apart from gaps or limitations shown in each rationale, the article demonstrates that they conflict with the existing parameters of fiduciary law responsibility of financial institutions. An alternative rationale that emphasizes the temporal perspective to invest over the long term is suggested as a better approach for SRI if it is to be relevant to the pressing challenges of promoting sustainability and governing global financial markets.

Because transnational environmental crime (TEC) can result in the demise of an environmental resource or irreversible damage to the environment and has implications for national and global security, its prevention is a critical issue. Deterrence through law enforcement can go only a limited distance towards preventing TEC. However, there is a huge potential for third parties to be active participants, alongside governmental authorities, in crafting and implementing strategies for TEC prevention. This article explores the ways in which states can catalyze third parties – non-state, non-offending actors – to contribute their own capacities towards the pursuit of preventive outcomes. It draws together concepts and theories from policing studies, criminology and regulatory studies to highlight changing relationships between the state and non-state actors with respect to crime control, and applies them to TEC. Examples and illustrations used in the article relate mainly to efforts to combat the illegal wildlife trade. The article concludes that a more systematic approach to TEC prevention involving third parties is needed, and that this requires dedicated strategic analysis and planning on the part of states, working individually and together.

The Decision on Criteria and Methodological Standards on Good Environmental Status of Marine Waters provides the conceptual framework for the assessment and valuation of the marine waters of EU Member States. In particular, it provides concepts for defining what constitutes good marine environmental status – a status which Member States are obligated to achieve by the year 2020 under the 2008 Marine Strategy Framework Directive. This article aims to elucidate the epistemic and normative dimensions of scientific criteria and methodological standards, as well as their importance in the legal treatment of the marine environment of the EU. The article also assesses how and to what extent the transnational process leading up to the Decision was structured, surveying existing ideas and perspectives as to what exactly constitutes good environmental status, and examining whether the structure of the Decision ensures that those affected by it would want to accept it.

EU law is teeming with framework norms – ‘laws in progress’. They provide little clarity for those to whom they apply, engendering rule-making in networks to assist those charged with implementing and applying laws at the national level. Taking as its specific focus the particular process through which the concept of an ‘article’ was constructed and constituted in a set of negotiations around the EU Chemicals Regulation, REACH, this article shows that networks not only make framework norms operational but also transform them in the process. The fact that networks have an important role in laying out what the law says throws the effectiveness of traditional forms of accountability in doubt. In particular, judicial control is in need of rethinking in order to accommodate norms that change and the networks that change them. This article suggests looking at the connections between internal peer control and externally operating judicial control as a way to keep up with the progress of laws in progress.

This article makes the case for the obligation to conserve plant biodiversity to be classified as a common concern of humankind, to justify and indeed prescribe limitations on private intellectual property rights over plants and related processes. Within the biodiversity regime, the notion of ‘common concern of humankind’ subjects the permanent sovereignty of states over natural resources to the interests of humanity. It shifts the obligations of states from managing their own plant biodiversity towards conserving it on behalf of humankind. In contrast, TRIPS requires states to protect private intellectual property rights with little discretion to adequately balance them with public interests. This creates a dichotomy. This article argues that rather than mobilizing state sovereignty as rhetoric to distract from addressing common concerns of humankind, it should be constructed as a concept capable of facilitating these very concerns.