The competency debate over small cetacean regulation at the International Whaling Commission (IWC) is legal in nature, yet has been in a political stalemate for years. In this article we argue that the IWC has the competence to regulate small cetaceans and that the commercial whaling of ‘small cetaceans’ is a violation of the moratorium on commercial whaling. We present hybrid legal and scientific arguments and counter-arguments for the treaty interpretation of the International Convention for the Regulation of Whaling and, given recent precedent, advocate that the International Court of Justice be called upon to resolve this matter.

This commentary, which presents an expanded version of the keynote address at the 2012 Conference on ‘Global Climate Change Without the United States’, outlines Palau’s role in attempting to motivate international action on climate change. It explains two initiatives: the passage of a United Nations (UN) General Assembly resolution highlighting the security implications of climate change, and the attempt to obtain an advisory opinion from the International Court of Justice on the responsibility of states for climate change. The two avenues are located ‘inside the system’ in that they target well-established organs of the UN system. However, they are ‘outside the box’ because they seek to bypass and ultimately jump-start the international negotiation process that has unfolded under the auspices of the UNFCCC.

Written as a response to the article ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ by Sean Stephenson, Arne Mooers and Amir Attaran, this commentary considers how important global and regional biodiversity- or conservation-related conventions have deliberately avoided the issue area of cetacean management. One of the effects of this is that so-called ‘small cetaceans’ – approximately 70 species – are left largely unregulated. This article differs from that of Stephenson and his co-authors, who argue that the ‘only appropriate’ forum for dealing with the issue is the International Court of Justice. Instead, it is argued here that the ‘Future of the IWC’ compromise process may yet represent the best course for bringing small cetaceans under IWC management authority. Another alternative was recently suggested in a draft resolution put forward by Monaco in 2012 – and is likely to be put forward again in 2014 – which advocated involving the United Nations General Assembly in the issue. The issue is both complicated and important, and a solution is needed.

Climate change has pushed governmental authorities within the United States (US) into new routes of national and transnational policy-making. The normal route for national policy-making runs from Congress in setting policy, to the President in agency implementation, to judicial oversight and enforcement. When that route is blocked, however, federalism and the separation of powers provide some byways and detours that may still be used to make progress. State governments and the executive branch have moved into the breach left by congressional deadlock. In the absence of federal climate legislation or a formal treaty, however, constitutional challenges will predictably meet efforts to limit carbon leakage or to establish linkages between regulatory systems.

These constitutional issues often involve corners of constitutional law such as foreign affairs, where doctrines are particularly murky. Solid arguments can be made in favour of state efforts to avoid leakage and create linkage, despite claims of discrimination against interstate commerce, extraterritoriality, and foreign affairs pre-emption. The Environmental Protection Agency has some statutory authority to deal with leakage, and the President seems to have authority to pursue linkage through executive agreement. Thus, both states and the executive branch should have room to deal with transboundary implications of climate policies. Although the deadlock in Congress regarding climate change may be unusually severe, these modes of response may also be important for other kinds of transnational activity by US state governments and the national executive.

Despite widespread recognition of the threat posed by emerging zoonotic diseases (EZDs) to human and animal health and the economy, the root causes of EZDs are largely ignored by the international community. In particular, the links between wildlife health, human-induced land-use change, and EZDs have not been adequately addressed. Generally, states are not required to evaluate the health impacts of land-use decisions within their territories. Similarly, global efforts to protect wild spaces are rarely identified as a health imperative. Where initiatives have been undertaken, they remain focused largely on detecting and controlling only those wildlife diseases that are known or suspected to be a threat to human and animal health or the economy. A critique of the existing international responses leaves no doubt that a preventative approach must be adopted to address human vulnerability to EZDs.

The inadequacies of the inter-state institutions and negotiating processes central to international climate policy create a pressing need for governance innovation. This article proposes one promising and feasible approach: strengthening the existing transnational regime complex for climate change. Leading organizations could strengthen the regime complex by forging stronger links among institutions, increasing coordination and collaboration, supporting weaker institutions and encouraging the entry of new ones where governance gaps exist. An enhanced regime complex would have a multilevel structure, enabling transnational institutions to bypass recalcitrant national governments by directly engaging sub-state and societal actors at multiple levels of authority and scale. It would also help to manage recalcitrant states by mobilizing advocacy, demonstration effects and other pressures on governments. Regime entrepreneurs, using the strategy of orchestration, could deploy a range of incentives and other tools of influence to enrol, support and steer transnational organizations.

The prospect of climate engineering (CE) – also known as geoengineering, referring to modification of the global environment to partly offset climate change and impacts from elevated atmospheric greenhouse gases – poses major, disruptive challenges to international policy and governance. If full global cooperation to manage climate change is not initially achievable, adding CE to the agenda has major effects on the challenges and risks associated with alternative configurations of participation – for example, variants of partial cooperation, unilateral action, and exclusion. Although the risks of unilateral CE by small states or non-state actors have been over-stated, some powerful states may be able to pursue CE unilaterally, risking international destabilization and conflict. These risks are not limited to future CE deployment, but may also be triggered by unilateral research and development (R&D), secrecy about intentions and capabilities, or assertion of legal rights of unilateral action. They may be reduced by early cooperative steps, such as international collaboration in R&D and open sharing of information. CE presents novel opportunities for explicit bargaining linkages within a complete climate response. Four CE-mitigation linkage scenarios suggest how CE may enhance mitigation incentives, and not weaken them as commonly assumed. Such synergy appears to be challenging if CE is treated only as a contingent response to a future climate crisis, but may be more achievable if CE is used earlier and at lower intensity, either to reduce peak near-term climate disruption in parallel with a programme of deep emission cuts or to target regional climate processes linked to acute global risks.

International nature protection law has developed without a coherent plan, with disparate governance instruments each largely evolving within their own separate sphere. Yet, many other issues are closely linked to the challenges of nature degradation, such as developmental challenges, climate change, food security and food safety, disease prevention, and rural poverty. These interconnections have partly been recognized in Agenda 21 and more recently in the Aichi Biodiversity Targets. This response commentary draws on and extrapolates further the conclusions of Patricia Farnese in ‘The Prevention Imperative’, published in this issue of Transnational Environmental Law, and argues for a more coherent approach and effective leadership in this area of global regulation, along with a more flexible and holistic approach to governance responses.

This commentary details the United States’ progress in advancing climate change law since President Barrack Obama’s re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has gained more prominence in the Obama administration’s second term agenda and considers how domestic actions help the United States to reposition itself in international climate diplomacy.

The question of what status the precautionary principle enjoys in international law has once again reared its head, most recently in the Indus Waters Treaty dispute between India and Pakistan before the Permanent Court of Arbitration. This article assesses the current state of play in respect of the precautionary principle and its status in international law. It identifies what it terms the two camps of custom – the custom camp and the no-custom camp – which find themselves on opposing sides in the debate. The article argues that the two camps are equally guilty of misunderstanding the precautionary principle and the nature of customary international law, though for different reasons. In so doing, the article shows that one side is guilty of ‘precaution spotting’, whereas the other ignores the implications of the ‘rule v. standard’ dialectic. These two concepts help us to understand the different claims advanced by the two camps. They also alert us to the fact that it is possible to conceptualize customary international law along two separate lines of inquiry: one lending emphasis to state practice and one relying on statements and declarations of rules. In pursuing these arguments, the article compares the precautionary principle with (other) norms of customary law, such as the ‘no-harm rule’ and the rules on cross-border environmental impact assessment, and argues that customary international law is best understood if we come to accept that there are multiple ways of identifying customary international rules.

There is no hope for international environmental law to be an engine for global social change when it can no longer provide a compelling account of itself. This article presents a theoretical framework, constructed from the works of Michel Foucault, capable of tracing this loss of descriptive capacity, as well as the resultant prescriptive confusion. The analysis examines the challenges posed by the triptych of biodiversity, biotechnology and neoliberalism housed under the idea of genetic gold, and calls for attention to micro-politics, in the shape of the apparatuses for the production of environmental subjectivity that operate outside the formal structures of the international legal sphere. The trope of genetic gold is revealed as an obsolete attempt to protect a fixed idea of biodiversity based on an outdated conception of environmental value. In response, the author argues for a mature confrontation with the end(s) of international environmental law.

This article examines the role of environmental non-governmental organizations (ENGOs) in Russia and the impact of tightening governmental accountability measures. Drawing on 18 interviews conducted in 2012–13 with Russian and international ENGOs, the article examines three key governance issues, namely: the collaborative relationship between the state and ENGOs, the impact of accountability measures on ENGO activities, and the relationships between ENGOs themselves. The findings reveal that ENGOs maintain a legitimate and effective role within Russian environmental governance. However, their legitimacy and success is significantly limited and threatened by increasing accountability measures and state actions. The article accordingly identifies a number of recommendations for increasing the likelihood of successful ENGO action in Russian environmental governance, including improving ENGO collaboration with the state and resolving tensions between participation and accountability.

Public access to environmental information is a recurring theme in many international environmental law regimes. Nigeria has ratified and committed itself to many such regimes over the years. And yet, until recently, it had a culture of secrecy in (environmental) governance that was sustained by legislation, with the attendant harm to the environment and public well-being. This changed in 2011, with the enactment of the Nigerian Freedom of Information (FOI) Act. This article uniquely assesses the value of the Nigerian FOI Act in relation to what may largely be considered international best practice principles on public access to environmental information as generally reflected in the UNECE’s Aarhus Convention. Even though Nigeria is not a party to it, it is argued that the Convention is still legally and politically relevant to Nigeria. This comparative analysis will reveal areas where the Nigerian FOI Act aligns with, probably goes beyond, but also falls short of best practice, thus leading to some suggestions for improvement in the Act in order to ensure better public access to environmental information.

This article describes the processes that led the Irish Environmental Protection Agency (EPA) to develop a National Inspection Plan for domestic waste water treatment systems, following intervention from European Union institutions. The discussion focuses on two issues: the role of transnational institutional settings in galvanizing innovation and regulatory reform, and the practical challenges of dealing with lower risks. It is argued that multi-level transnational regimes have considerable potential to stimulate high-level reviews of regulatory strategy. As a result, lower risks present challenges that cannot be ignored in favour of policies that focus on the most severe risks. Traditional risk regulation theories, it is contended, do not provide much assistance in selecting intervention strategies in the face of such pressures, but the example of the Irish EPA shows how regulators can address these issues.

Over the past years, two important challenges to traditional conceptions of international law have come to the fore: pluralism and informality. Pluralism refers to the fact that global society is characterized by multiple legal systems that frequently overlap. Informality refers to the increasing relevance of non-traditional actors, processes and outputs in the realm of international law. Two recent books provide important contributions to enhancing our understanding of these challenges. In the first book, Nico Krisch presents a powerful plea that in a ‘postnational’ context legal pluralism is to be preferred over its alternative, transferring constitutionalism to the global level. In the second book, Joost Pauwelyn, Ramses Wessel and Jan Wouters offer a collection of essays that seek to further knowledge of the concept, legal nature, impacts and accountability of ‘informal international lawmaking’. In reviewing these two books, this review essay seeks to identify avenues for further inquiry in the area of transnational environmental law.