1. INTRODUCTION
As this Editorial is being written, we reflect on yet another extraordinary year. While vaccination programmes brought immense hope in the fight against COVID-19, the effects of the pandemic continued to be severely felt. In particular, the borderless world that globalization had increasingly created seems to be reverting to one with legal and practical obstacles to movement and connection. Our news cycle has been dominated with reporting on constantly changing COVID-19 travel restrictions and last-minute border closures,Footnote 1 new and controversial immigration control measures,Footnote 2 and the tragic deaths of migrants in attempting to cross borders.Footnote 3 At the same time, the Director General of the International Organization for Migration noted a record-breaking increase in the number of forcibly displaced persons combined with a significant drop in global mobility as a result of strict travel rules, described as a ‘paradox not seen before in human history’.Footnote 4
An earlier Transnational Environmental Law (TEL) Editorial, in 2017, reflected on how recent inward-looking policies had affected the rule of law.Footnote 5 Protectionism materialized even more sharply in the past two years as borders closed to limit the spread of COVID-19, significantly affecting the global environmental agenda. The 26th Conference of the Parties (COP-26) to the United Nations Framework Convention on Climate Change,Footnote 6 held in Glasgow (United Kingdom) in November 2021, is illustrative of these disruptions. The COVID-19 pandemic had delayed the climate summit by a year; in the meantime, the limitations of online meetings quickly became clear, as diplomats proved uneasy about negotiating over Zoom an agreement vital for the future of our planet.Footnote 7 Lack of vaccines, quarantine requirements, and other risks linked to bringing together thousands of people negatively affected the feasibility of the summit, and led to critiques that COP-26 was the ‘most exclusionary’ climate summit to date.Footnote 8
Restrictions on global mobility bring new challenges for transnational environmental law, a field built around global and shared challenges, and various forms of border crossings, both practical and intellectual: How do we engage with multilateralism and carry out international cooperation in a semi-closed world? Is border closure necessarily associated with environmental regression or can political ambition still be raised? How do legal norms travel in a world impacted by border closures?
As we look ahead, 2022 is likely to see further disruptions of the global environmental agenda as a result of COVID-19.Footnote 9 At the same time, it will be a year to reflect on past achievements and future challenges, as the international community comes together to commemorate the 50-year anniversary of the 1972 United Nations (UN) Stockholm Conference on the Environment.Footnote 10 The Stockholm+50 SummitFootnote 11 is an opportunity for the community of scholars to reflect on how contemporary international environmental law (IEL) has developed, while at the same time catalyzing environmental action. For us, as scholars of transnational environmental law, it is the chance to reflect on how scholarship has made sense of the increasing complexity of actions governing the protection of the environment and of the remaining gaps in our knowledge.
Contributions to this issue of TEL similarly represent opportunities to reflect on the boundaries of transnational environmental law: they offer rich insights into the core themes of transnational environmental law that question our conceptualization of both the environment and the law. At the same time, they offer the chance to take stock of 50 years of international cooperation in the field of environmental protection and to encourage our community of transnational legal scholars to further extend its analytical lenses.
2. EXTENDING THE HORIZONS OF ENVIRONMENTAL LAW BEYOND THE HUMAN
The first two contributions to this issue speak to environmental law's increasingly visible failure to stop, or even meaningfully mitigate, the climate and biodiversity crises. Specifically, environmental law scholarship has become critical of the anthropocentric focus of the field, which is considered one of the reasons for its inability to address environmental degradation effectively. Through reflection on the rights of nature and non-human animals, the first two articles of this issue both make a case for a rule of law that protects the more-than-human world.
In ‘Steps Towards a Legal Ontological Turn: Proposals for Law's Place beyond the Human’, Emille Boulot and Joshua Sterlin are interested in how the framing of environmental law justifies human exploitation of nature, seen as an object devoid of meaning.Footnote 12 They lament the ‘ontological assumption of a single objective, and an objectifiable reality’ that underpins the fieldFootnote 13 and which ‘continues to reinforce the constructed dichotomy between the sphere of the anthropos and that of the natural world’.Footnote 14 Boulot and Sterlin engage with the rights of nature discourse that has been widely analyzed in TEL.Footnote 15 They argue that the growth of the rights of nature discourse has been mischaracterized as mere progress in the field of environmental law, when it, instead, represents something much more profound. They explain that rights of nature can be seen as a ‘radical leaking’ of Indigenous legal orders into the legal framework of the nation-state.Footnote 16
Extending the scope of environmental law by accounting for alternative worldviews creates significant challenges for legal thinking; the authors argue that the meeting of ‘vastly differing legalities’Footnote 17 cannot be fully understood through the traditional notion of legal pluralism and has the potential to destabilize modern legal orders.Footnote 18 Boulot and Sterlin thus make a passionate call for a ‘legal ontological turn’ to explore important questions about how to communicate with the more-than-human world.Footnote 19 In order to extend our understanding of the environment beyond the human, they find a need for ‘inspiration from and cross-fertilization with fields more familiar with ontological analysis and questioning’.Footnote 20 In particular, they rely on the ontological turn within anthropology and invite legal scholars to ‘bring its essential instruction to legal thinking’.Footnote 21
The anthropocentric function of the law is also at the heart of the case comment written by Charlotte Blattner and Raffael Fasel, which reflects on how the protection of the law can be extended to non-humans.Footnote 22 In ‘The Swiss Primate Case: How Courts Have Paved the Way for the First Direct Democratic Vote on Animal Rights’, the authors offer unique insights into a dispute in Switzerland over a citizens’ initiative to include a right to life and to bodily and mental integrity for non-human primates in the Basel-Stadt Cantonal Constitution. The case comment reflects on the 2019 decision of the Constitutional Court of Basel-Stadt, which ruled that citizens should be allowed to vote on whether to ‘expand the circle of rights holders beyond the anthropological barrier’,Footnote 23 and the subsequent decision of the Swiss Federal Supreme Court to uphold the validity of the citizens’ initiative.Footnote 24 Blattner and Fasel explain why including rights for non-human primates in a cantonal constitution could add value to their protection in comparison with the traditional animal welfare protection measures.Footnote 25 While acknowledging that the change of law advocated by the initiative might have limited practical implications, they posit that the mere symbolism of the initiative is worthwhile.Footnote 26
These two decisions form part of a recent judicial trend of challenging the absence of basic rights for non-human beings.Footnote 27 However, it emerges from the case comment that these decisions are particularly original in three ways. Firstly, the courts addressed, possibly for the first time, the relationship between animal rights and federalism in order to evaluate whether the primate rights initiative would be inconsistent with federal law. The courts responded in the negative, finding that while the Swiss Civil Code precludes animals from having fundamental rights, the initiative sought to reform Swiss public law to alter the relationship between individuals and the state: as a result, cantons were free to extend rights to non-human animals.Footnote 28 Secondly, the decision of the Federal Supreme Court departed from existing animal rights scholarship, which concentrates on the overlaps between human and animal rights. Instead, it declared that the initiative ‘does not aim to extend existing human constitutional rights to animals, but instead seeks to create special fundamental rights for non-human primates’.Footnote 29 Thirdly, the case resulted in an important opportunity for citizens to participate in lawmaking processes as it paved the way for ‘the first ever direct democratic vote on whether some non-human animals should be granted basic rights to life and to bodily and mental integrity’.Footnote 30
While the two contributions adopt a different starting point – one grounded in a theoretical exercise, the other in the commentary of a judicial decision – they nevertheless converge in their claims that our legal systems need to be reconceptualized to better account for the non-human in our worlds.
3. PROTECTING THE ENVIRONMENT BEYOND THE BOUNDARIES OF ENVIRONMENTAL LAW
A second set of articles centres on the promises of other legal fields for enhancing environmental protection. In 1972, the Stockholm Declaration recognized the connection between human rights and environmental protection,Footnote 31 setting the scene for recognition by the UN Human Rights Council (HRC) in 2021 of a human right to a clean, healthy and sustainable environment.Footnote 32 Building upon a rich body of literature on the relationship between human rights law and environmental law,Footnote 33 these two contributions offer a hopeful, albeit cautious, message. Both articles aim to identify synergies between two fields which share a common concern for upholding fundamental values that cannot be squarely protected by a state-driven, reciprocity-based international legal system – IEL and international human rights law (IHRL).
In ‘Mind the Compliance Gap: How Insights from International Human Rights Mechanisms Can Help to Implement the Convention on Biological Diversity’,Footnote 34 Niak Sian Koh, Claudia Ituarte-Lima and Thomas Hahn examine issues of compliance and accountability that hinder the effectiveness of multilateral environmental agreements. They address weak compliance with the Aichi Biodiversity Targets by the parties to the Convention on Biological Diversity (CBD).Footnote 35 This analysis comes at a crucial time as the international community is set in 2022 to identify new biodiversity targets for the decade to 2030.Footnote 36
Through the analysis of national reports and multi-stakeholder interviews, the authors identify core obstacles to implementation and enforcement facing the CBD.Footnote 37 These include difficulties in monitoring, a lack of institutional capacity, and complications in mainstream biodiversity policies.Footnote 38 In order to remedy this situation, the authors look at how lessons from human rights review mechanisms could help to improve compliance with biodiversity targets. They conclude that relying on both managerial and enforcement compliance approaches of human rights mechanisms could help in strengthening accountability within the CBD regime.Footnote 39
The next article, ‘Addressing Climate Change through International Human Rights Law: From (Extra)Territoriality to Common Concern of Humankind’,Footnote 40 looks at the other side of the coin: it is not interested in how IEL can copy techniques from IHRL, but rather what IHRL can learn from IEL to better protect the planet. Vincent Bellinkx, Deborah Casalin, Gamze Erdem Türkelli, Werner Scholtz and Wouter Vandenhole take climate change migrations as a case study of the inability of IHRL adequately to respond to environmental challenges. They emphasize that IHRL's focus on territoriality and causality makes it unable to respond to global, a-territorial challenges that are difficult to link back to specific acts or omissions of individual states. The authors hence warn that the ‘human rights-environment project may be doomed from the outset as a result of the jurisdictional tenets of IHRL’.Footnote 41
Bellinkx and his co-authors go on to advocate a radical reconfiguration of IHRL. To do so, they suggest reliance on global international cooperation obligations, inspired by the Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011.Footnote 42 Duties of international cooperation, however, remain vague and general, and to implement them ‘states must have the political will to accept burden sharing that deviates from the doctrinal tenets of IHRL’.Footnote 43 The authors consider that the IEL concept of common concern of humankind can provide guidance on how states can facilitate international cooperation, in particular, because it enables the sharing of global environmental burdens.Footnote 44 They hope that such an approach will form the basis of a ‘radical reform’Footnote 45 that will make the field better able to respond to the harmful effects of climate change.
A third article, entitled ‘Fighting Deforestation in Non-International Armed Conflicts: The Relevance of the Rome Statute for Rosewood Trafficking in Senegal’, considers the potential of another field of law – international criminal law – to protect natural resources and the environment.Footnote 46 Pauline Martini and Maud Sarliève note the shortcomings of international criminal law when attempting to prosecute acts of mass deforestation; like Boulot and Sterlin, they lament the anthropocentric nature of the law, noting that the International Criminal Court's ‘Rome Statute is an anthropocentric instrument; it was not designed to protect the environment but to protect humankind’.Footnote 47 This explains why the Rome StatuteFootnote 48 does not provide for the prosecution of environmental crimes, except via Article 8(2)(b)(iv), which sets a high threshold, and establishes conditions that are rarely applicable and are restricted to armed conflicts of an international nature.Footnote 49
To circumvent these difficulties, Martini and Sarliève analyze the applicability of the war crimes of destruction of property and pillage.Footnote 50 To do so, they use the case study of the non-international armed conflict in the Casamance region of Senegal, involving illegal logging and trafficking of rosewood timber, a species threatened with extinction and protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).Footnote 51 Throughout their article, the authors emphasize the complexity of assessing whether and how this situation would qualify as a war crime under the Rome Statute, noting, for instance, the absence of clear data on the role of various actors involved in logging and trafficking,Footnote 52 and the difficulty of establishing a causal relationship between resource exploitation and armed conflict.Footnote 53
When thinking about the applicability of the Rome Statute, the authors delve into the notion of ‘property’, and whether it could encompass ownership of natural resources. Indeed, for acts of deforestation to qualify as war crimes, important questions around ownership of the forests and the relationship between the owners and the armed forces would need to be resolved.Footnote 54 If forests on Senegalese territory are the collective property of the people, ‘any act of exploitation of natural resources would require the consent of the Senegalese people as a whole’, which causes significant legal challenges based on the fact that some individuals consent to the exploitation of forests while others value their sacred nature.Footnote 55
Each contribution in this section critically reflects on the rigidity of international law and how this has a negative impact on its potential contribution to environmental protection. Each also offers suggestions for reform. In this vein, Martini and Sarliève urge scholars to look at the rights of Indigenous peoples to understand how collective property can be managed.Footnote 56 In addition, they draw general lessons for the prosecution of environmental crimes, which are particularly relevant in the light of the debates around the recognition of a crime of ecocide, which have gained in momentum in the past year.Footnote 57
4. BRIDGING THE LEGAL AND NON-LEGAL TO STRENGTHEN ENVIRONMENTAL LAW
The final trio of articles extends our scholarly understanding of the interactions between the legal and the non-legal to offer thoughts on how to bridge the divide in order to better govern our environment. Their contribution could not be more timely as the international community reflects on how the Stockholm Declaration,Footnote 58 a political declaration adopted 50 years ago, served as the basis for the development of contemporary IEL. At the core of the three articles is an important willingness to make sure that as environmental law relies more heavily on non-traditional tools, its interactions with law's existing tools are positive and contribute to the shared goal of enhanced environmental protection.
In ‘The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?’, Mingzhe Zhu concentrates on what she calls the ‘lawlessness’ of China's climate governance – that is, the absence of legislative instruments with regard to climate change and the preference of the executive branch for adopting action plans on mitigation and adaptation.Footnote 59 Climate litigation in China has been the subject of multiple TEL articles in the past.Footnote 60 Zhu adds to this debate by considering the implications of the absence of legally binding laws for climate litigation. She finds that existing climate policies are not legally binding in civil litigation and do not actually prescribe well-defined rights and duties for private entities; yet, courts do implement them through contractual and statutory interpretation.Footnote 61 By doing so, Chinese judges have tended to ‘behave more akin to enforcers of state policy than as impartial arbitrators of the law’.Footnote 62 Zhu argues that the situation has led to a ‘rule of climate policy’ rather than a strict rule of law.Footnote 63
In order to explain this development, the legal reasoning behind such positioning is analyzed. Zhu concludes that Chinese judges tend to rely on a different type of argument compared with courts in other jurisdictions that rely on human rights and ethics-based justification. Chinese courts turn to ‘national or local state policies to determine what is required for the global public good, and thus justify [their] rulings and interpretations’.Footnote 64 In doing so, Chinese judges ‘guide private entities towards more sustainable business activities and lifestyles’.Footnote 65
The next contribution illustrates the governing power of private initiatives that aim to address deforestation, ecosystem conversion, and human rights violations driven by trade in agricultural commodities.Footnote 66 In ‘Private Processes and Public Values: Disciplining Trade in Forest and Ecosystem Risk Commodities via Non-Financial Due Diligence’, Enrico Partiti shows that private initiatives form a transnational legal order that, despite contributing to the governance of deforestation, suffers from important shortcomings and coordination challenges as a result of its multi-level, multi-actor nature.Footnote 67 Overlaps, lack of comprehensiveness, and ‘tokenistic’Footnote 68 corporate commitments limit the effectiveness of the transnational legal order. As a result, Partiti argues, public intervention ‘remains indispensable’Footnote 69 because it alone is able to remedy these weaknesses and offers ‘institutional complementarity’.Footnote 70
Partiti maintains that human rights due diligence, in line with the UN Guiding Principles on Business and Human Rights,Footnote 71 offers an opportunity to govern private regulation. According to the author, it ‘allocates responsibilities for harm caused by or directly linked to firms’Footnote 72 as well as ‘provides the boundaries of expected corporate conduct while offering accountability, participation, and remediation mechanisms’.Footnote 73 Partiti therefore advocates combining private management systems with public enforcement measures to enhance the effectiveness and accountability of the transnational legal order.Footnote 74
The final article in this issue also looks at the lack of binding effect in the context of climate litigation. In ‘From Bushfires to Misfires: Climate-related Financial Risk after McVeigh v. Retail Employees Superannuation Trust’, Esmeralda Colombo reflects on the fiduciary duties (including disclosure and due diligence) of retail pension funds.Footnote 75 Her analysis of the Australian case McVeigh,Footnote 76 the first brought by a beneficiary against a public pension fund, provides a unique opportunity to assess the positive implications, not of a court pronouncement, but of an out-of-court settlement.Footnote 77 The absence of legal binding effect is at the heart of Colombo's piece. Firstly, the commitments of the Retail Employees Superannuation Trust (REST) to comply with both disclosure and due diligence climate-related dutiesFootnote 78 rest on the voluntary recommendations of the Task Force on Climate-related Financial Disclosures (TCFD).Footnote 79 She evaluates the complex role played by this non-binding instrument, noting that it seems to be ‘defining the discourse on climate-related financial risk’,Footnote 80 but remains, nevertheless, insufficient to force the financial sector to manage climate risks effectively.Footnote 81 Secondly, Colombo also looks at the implications of the voluntary settlement beyond REST, arguing that the settlement ‘raise[s] the bar for pension fund climate-risk practices’,Footnote 82 and will carry repercussions for the entire superannuation industry in Australia.Footnote 83
The article shares commonalities with the two other contributions in this set. Like Partiti, Colombo finds a role for public authority (in this case, the courts) to fortify the TCFD Recommendations. She argues that the discourse on climate risk can cover binding standards and could provide courts with ‘opportunities to clarify and standardize climate-related duties for pension funds’,Footnote 84 and notes that ‘McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions’.Footnote 85 Like Zhu, Colombo is interested in thinking about how non-legally binding instruments should be used. She considers that it is not possible to rely on the TCFD Recommendations merely as a disclosure instrument because ‘the business case for pension funds to align their investment portfolios with climate risk assessments is insufficient’.Footnote 86 Rather, she shows that the Recommendations need to become a ‘normative expectation’ used as a benchmark for the interpretation of due diligence.Footnote 87
The articles by Zhu, Partiti, and Colombo reveal that an important question for transnational environmental scholars is how to integrate traditional means of lawmaking with complementary solutions with a view to better protecting the environment. They are keen to ensure that legislation and court decisions remain legitimate while, at the same time, flexible enough to accommodate newer actors and forms of governance.
5. CONCLUSION
Fifty years since the emergence of contemporary IEL, legal protection of the environment has significantly improved. The contributions in this issue are a tribute to how research can contribute to better conceptualizing our relationship with the environment and to clarifying the functions and nature of law in this endeavour. They are also a powerful reminder that transnational environmental scholars are increasingly concerned about the inadequacy of the rule of law to respond to environmental degradation. This explains why each contributor in this issue laments the constrained analytical lenses that reduce our ability to protect the environment and call upon our readers to extend their horizons. In the coming year, the pandemic may keep us local, if not home-bound, but this issue shows that this should not restrict our imagination and that, by crossing conceptual borders of all sorts, we might be better able to respond to the complexity of the task ahead.
