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Fuzzy Universality in Climate Change Litigation 气候变化诉讼中的模糊普遍性
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-10-09 DOI: 10.1017/s2047102524000141
Emma Lees, Emilie Gjaldbæk-Sverdrup
{"title":"Fuzzy Universality in Climate Change Litigation","authors":"Emma Lees, Emilie Gjaldbæk-Sverdrup","doi":"10.1017/s2047102524000141","DOIUrl":"https://doi.org/10.1017/s2047102524000141","url":null,"abstract":"<p>Climate change litigation is developing rapidly and pervasively, emerging as a space for legal innovation. Until now, this process has occurred mainly in national courts. The result is a decentralization of the interpretation of human rights relating to climate change. This article argues that such decentralization could, in principle, have a destabilizing impact on claims to the universality of human rights. However, close examination of this litigation shows that a prototype is emerging, certain features of which are becoming ‘hard wired’ through the process of judicial dialogue. By exploring the content of this prototype, its decentralized development, and its self-reinforcing nature, we see a legal space emerging in which environmental human rights sit between the universal and the contextual.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"227 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142386288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Children and Future Generations Rights before the Courts: The Vexed Question of Definitions 法院面前的儿童与后代权利：令人纠结的定义问题
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-09-27 DOI: 10.1017/s2047102524000165
Aoife Nolan
{"title":"Children and Future Generations Rights before the Courts: The Vexed Question of Definitions","authors":"Aoife Nolan","doi":"10.1017/s2047102524000165","DOIUrl":"https://doi.org/10.1017/s2047102524000165","url":null,"abstract":"<p>Recent years have seen a sharp increase in the number of cases being brought before national courts addressing the constitutional rights of children and future generations (FG) in the context of environmental protection. These cases have required courts to devote increasing attention to a wide-ranging and complicated array of constitutional rights claims involving the short- and longer-term impacts of environmental harm on children and FG. This article argues that both litigation and judicial efforts in this area have been hampered by the lack of precision of definitions of ‘future generations’ under comparative constitutional and international human rights law, in particular vis-à-vis children. This lack of precision poses a major challenge to both the delineation and enforcement of rights claims in the context of such litigation. After outlining how these cases are being brought and how courts are addressing (or not) the complexities involved in defining children and FG respectively, the article highlights the lack of authoritative definitions of FG in comparative constitutional law – a lacuna that, the author argues, is exacerbated by the ongoing lack of a clear definition of FG in the international human rights law context. The article concludes by identifying key challenges faced by litigators and courts seeking to engage with the rights of children and FG that result from this definitional gap.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"66 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142325336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Due Regard for Future Generations? The No Harm Rule and Sovereignty in the Advisory Opinions on Climate Change 适当顾及后代？气候变化咨询意见中的无损害规则和主权
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-09-26 DOI: 10.1017/s2047102524000207
Caroline E. Foster
{"title":"Due Regard for Future Generations? The No Harm Rule and Sovereignty in the Advisory Opinions on Climate Change","authors":"Caroline E. Foster","doi":"10.1017/s2047102524000207","DOIUrl":"https://doi.org/10.1017/s2047102524000207","url":null,"abstract":"<p>States have long been understood to have an obligation to protect the international legal rights and interests of others, consistent with the maxim <span>sic utere tuo ut alienum non laedas</span> (use what is yours in such a manner as not to injure that of another). As the world's population becomes more interdependent, this no harm obligation becomes more significant. Further, as knowledge increases about the consequences of human activity for the climate and the environment, the no harm obligation takes on greater relevance vis-à-vis the interests of the Earth's future populations. Future generations’ legal interests have been recognized in the context of sustainable development and through the principle of intergenerational equity. The no harm rule requires that these interests be properly considered and addressed appropriately, commensurate with what is at stake. At a minimum, this may require avoidance of ‘manifestly excessive adverse impacts’.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"82 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142321526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Why Do States Adhere to the Sustainable Development Goals? 各国为何坚持可持续发展目标？
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-09-18 DOI: 10.1017/s2047102524000190
Niamh Guiry
{"title":"Why Do States Adhere to the Sustainable Development Goals?","authors":"Niamh Guiry","doi":"10.1017/s2047102524000190","DOIUrl":"https://doi.org/10.1017/s2047102524000190","url":null,"abstract":"<p>The rationale behind state support for, and obedience to, normative rules and obligations has long been a topic of international law scholarship discourse. What has yet to be fully established, however, is why virtually all states have agreed to adhere to a seemingly novel global paradigm with ambitious yet non-binding objectives – the United Nations 2030 Sustainable Development Goals (SDGs). This article identifies six factors as contributing to the influencing power of the SDGs – namely, the role of law, particularly inter- and transnational law, the legitimacy of the framework, the notion of reciprocity, reputational concerns, national self-interest, and the moral duty to address the shared global challenges of sustainable development.</p><p>By exploring their strengths and limitations through several theoretical frameworks (including Harold Koh's theory of transnational legal processes, Thomas Franck's theory of legitimacy, and Ryan Goodman and Derek Jinks’ three mechanisms of social influence), this article argues that the combination of these factors motivates voluntary state commitment, reporting, and cooperation under the SDG framework and that, overall, the SDGs offer a versatile lens to explore the different motives for state adherence to a soft law framework in the inter- and transnational legal spheres.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"16 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142236835","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The Legal Objectives of the EU Emissions Trading System: An Evaluation Framework 欧盟排放交易体系的法律目标：评估框架
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-08-27 DOI: 10.1017/s2047102524000153
Manolis Kotzampasakis, Edwin Woerdman
{"title":"The Legal Objectives of the EU Emissions Trading System: An Evaluation Framework","authors":"Manolis Kotzampasakis, Edwin Woerdman","doi":"10.1017/s2047102524000153","DOIUrl":"https://doi.org/10.1017/s2047102524000153","url":null,"abstract":"Climate policies are often evaluated using criteria that are heterogeneous and misaligned with the stated aims of these policies. By combining legal research methods with insights from economic theory, we systematically map and analyze the legal objectives of the European Union (EU) Emissions Trading System (ETS), a key climate policy instrument. We find that the EU ETS is shaped by a nuanced internal normative framework, the principal goal of which is emissions reduction, combined with three secondary goals of cost-effectiveness, economic efficiency and equity, and a meta-goal of coherence. Based on the contents and interrelations of these legal objectives, we formulate evaluation criteria that can be used to critically analyze and evaluate the EU ETS performance in a more comprehensive, transparent, and comparable manner. The resulting methodology is applicable to other environmental policies and jurisdictions.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"8 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142084665","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A New Leaf: Is It Time to De-objectify Plants in Private Law? 新的一叶：现在是在私法中去物化植物的时候了吗？
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-05-27 DOI: 10.1017/s204710252400013x
Joris van Laarhoven, Rens Claerhoudt
{"title":"A New Leaf: Is It Time to De-objectify Plants in Private Law?","authors":"Joris van Laarhoven, Rens Claerhoudt","doi":"10.1017/s204710252400013x","DOIUrl":"https://doi.org/10.1017/s204710252400013x","url":null,"abstract":"<p>In civil law jurisdictions, plants have traditionally been classified as ‘objects’ (or ‘things’) under private law, reflecting an age-old tendency, certainly in the Western world, to underestimate and undervalue plants. Recent legal debates increasingly acknowledge the special nature of plants. Perhaps the most eye-catching debate in this context is the one on Rights of Nature, which have much potential but pose some practical and conceptual challenges. We propose an additional way of acknowledging the special nature of plants in a legal context: de-objectifying plants in private law and thereby explicating that they are not mere objects. Numerous civil codes already separate animals from objects, often – though not exclusively – based on the sentience of animals. Recent scientific research suggests that plants may be sentient, too. We aim to open the debate on the de-objectification of plants, based on their sentience, in civil codes as a feasible and unobtrusive way to acknowledge in law that plants are living beings, and more than mere things.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"26 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141156693","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Transforming the Rule of Law in Environmental and Climate Litigation: Prohibiting the Arbitrary Treatment of Future Generations 改变环境和气候诉讼中的法治：禁止任意对待子孙后代
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-05-24 DOI: 10.1017/s2047102524000116
Katalin Sulyok
{"title":"Transforming the Rule of Law in Environmental and Climate Litigation: Prohibiting the Arbitrary Treatment of Future Generations","authors":"Katalin Sulyok","doi":"10.1017/s2047102524000116","DOIUrl":"https://doi.org/10.1017/s2047102524000116","url":null,"abstract":"<p>This article maps the shared legal anatomy of climate and environmental lawsuits, in which plaintiffs claim protection for future generations before domestic or international courts. By closely analyzing the litigation strategies of plaintiffs and the inquiry of courts, the article argues that these proceedings revolve around structurally similar legal standards across domestic and international jurisdictions, which correspond to five normative requirements flowing from the rule of law: namely, respect for human rights, certain quality of law requirements, prohibition of arbitrary exercise of governmental powers, non-discrimination, and access to justice. The cross-jurisdictional analysis shows that courts appear to be increasingly willing to protect future generations against arbitrary treatment by present-day decision makers. The article appraises whether such an intergenerationally sensitive reinterpretation of the rule of law could help to change the short-termist paradigm of environmental and climate law.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"42 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141091887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Law, Colonial-Capitalist Floods, and the Production of Injustices in Eastern India: Insights for Climate Adaptation 印度东部的法律、殖民资本主义洪水和不公正的产生：对气候适应的启示
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-05-07 DOI: 10.1017/s2047102524000074
Birsha Ohdedar
{"title":"Law, Colonial-Capitalist Floods, and the Production of Injustices in Eastern India: Insights for Climate Adaptation","authors":"Birsha Ohdedar","doi":"10.1017/s2047102524000074","DOIUrl":"https://doi.org/10.1017/s2047102524000074","url":null,"abstract":"<p>Floods are not merely ‘natural’ disasters; rather, they emerge as socio-natural phenomena shaped by political, social, and economic processes. Law plays a pivotal role in producing and sustaining these processes and contributes to the creation of unjust environments. Drawing on political ecology and environmental history, this article analyzes the role of law and its interactions with colonialism and capitalism in the Damodar river valley in Eastern India. The Damodar river valley is an intensely engineered and hazardous region, a site of multiple interventions and developmental and ecological experiments for over a century. Colonial and post-colonial legacies have left a lasting imprint on legal, policy, and institutional frameworks, establishing a path-dependent trajectory for addressing future climate change adaptation challenges. While focusing on a specific case study, the article's approach and findings have broader significance, especially in the context of climate adaptation. The central argument underscores the need to understand the political and legal dimensions of flooding, and reinforces the need for a shift beyond incremental adjustments that do not tackle the underlying structures that produce the injustices associated with floods. It highlights the importance of ‘transformative adaptation’ approaches that address the root causes of climate-related disasters, such as restructuring power relations between actors, reconfiguring governance structures, and scrutinizing ideologies that mediate how water is used and distributed.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"52 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140875152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Assessing Drifting Fish Aggregating Device (dFAD) Abandonment under International Marine Pollution Law 根据国际海洋污染法评估漂流集鱼装置（dFAD）废弃情况
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-05-02 DOI: 10.1017/s2047102524000098
Valentin Schatz
{"title":"Assessing Drifting Fish Aggregating Device (dFAD) Abandonment under International Marine Pollution Law","authors":"Valentin Schatz","doi":"10.1017/s2047102524000098","DOIUrl":"https://doi.org/10.1017/s2047102524000098","url":null,"abstract":"<p>This article asks whether the abandonment of drifting fish aggregating devices (dFADs) is illegal under international marine pollution law. To answer this question, it provides a brief overview of the general international legal framework for the protection of the marine environment as well as specific legal regimes, namely the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LC), its 1996 Protocol (LP), and Annex V of the International Convention for the Prevention of Pollution from Ships (MARPOL). The article concludes that the abandonment of dFADs contravenes the LC/LP and/or, depending on the preferred interpretation, MARPOL Annex V. The decision as to which of the two regimes is applicable depends on whether dFAD abandonment can be classified as ‘incidental to, or derived from the normal operations of vessels … and their equipment’ or not. The negligent loss of dFADs always violates MARPOL Annex V. The article also shows that certain state practice and <span>opinio juris</span> suggests a parallel applicability of the two regimes with respect to deliberate dFAD abandonment. While such a development would ensure more comprehensive coverage of the relevant standards and prohibitions, a clear regulatory decision as to which of the two regimes is the correct one would be preferable from an implementation and enforcement perspective.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"33 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140819995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation 在基于人权的国际气候诉讼中，作为变革推动者的跨部门受害者
IF 4.3 1区 社会学
Transnational Environmental Law Pub Date : 2024-04-16 DOI: 10.1017/s2047102524000128
Angela Hefti
{"title":"Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation","authors":"Angela Hefti","doi":"10.1017/s2047102524000128","DOIUrl":"https://doi.org/10.1017/s2047102524000128","url":null,"abstract":"<p>Climate change uniquely affects those who are at the intersection of several inequalities simultaneously, such as those based on gender, age, and disability. This makes them ‘directly affected’ by climate change, which is crucial in establishing ‘victim status’ under Article 34 of the European Convention on Human Rights. At the same time, as a result of unequal power relations, intersectional victims face exclusion from, or minimal participation in, political decision-making processes concerning climate change. This further justifies their claim to victim status as a matter of procedural climate justice. As agents of change, intersectional victims, namely elderly women and girls with disabilities, can be empowered to contribute to climate decision making, thereby reshaping unjust power relations. The article examines two climate cases currently before the European Court of Human Rights: <span>Verein KlimaSeniorinnen Schweiz and Others</span> v. <span>Switzerland</span>, brought by elderly women, and <span>Duarte Agostinho et al.</span> v. <span>Portugal and 32 other States</span>, brought by children and young people.</p>","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"29 1","pages":""},"PeriodicalIF":4.3,"publicationDate":"2024-04-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140557268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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