Review of European, Comparative & International Environmental Law

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 2050-0386

Issue Number

Latest documents

Going beyond CO2: Strengthening action on global methane emissions under the UN climate regime
According to the 1.5°C Special Report of the Intergovernmental Panel on Climate Change, limiting global warming to 1.5 or 2°C, as specified in the Paris Agreement, will require significant reductions, both in cumulative carbon dioxide emissions and in short‐lived climate pollutants, including methane. This article seeks to explore how action on global methane emissions could be strengthened under the United Nations climate regime, particularly through the Paris Agreement. To answer this question, the article begins by analysing the existing methane mitigation and reporting commitments under the United Nations Framework Convention on Climate Change, the Kyoto Protocol, the Paris Agreement and the Paris rulebook. The article then explores the possibilities to further strengthen these commitments through the Paris Agreement. Methane can be targeted in future rounds of nationally determined contributions through specified methane mitigation targets and strategies. The reporting of methane emissions will significantly improve through the enhanced transparency framework of the Paris Agreement and the reporting guidelines agreed under the Paris rulebook. In addition, the article identifies several further opportunities for strengthening action on methane under the Paris Agreement, including through its sustainable development mechanism, long‐term low greenhouse gas emission development strategies, global stocktake, support and non‐party action.
Can reporting enhance transboundary water cooperation? Early insights from the Water Convention and the Sustainable Development Goals reporting exercise
A notable milestone in transboundary water cooperation has been the incorporation of reporting both under the Sustainable Development Goals (SDGs) framework and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Much can be gained from reviewing the initial reporting exercise, which took place in 2017 and 2018. The first reporting exercise has demonstrated that, while progress has been made in the last decades, the need to strengthen cooperation over transboundary rivers, lakes and aquifers is clearly evident. Additionally, the experience of the first reporting exercise suggests that, although some adjustments might be made, reporting can play a valuable role in advancing transboundary water cooperation in the years to come.
Beyond semantics: Overcoming the normative incoherence surrounding the protection of international watercourse ecosystems
Protecting and preserving the ecosystems of international watercourses requires a coherent normative framework. Problems can arise where inconsistent terms are used to define and describe these shared resources. This leads to possible normative incoherence around the duties to protect and preserve ecosystems. At the heart of the matter are the diverse definitions used for shared freshwaters and international ecosystems. In many cases, there is a ‘terrestrial gap’—the geographical space created by the terms used to describe ‘international watercourse’ on the one hand, and ‘ecosystem’ on the other. More often than not, the former is defined in narrow geographical terms, while the latter is more broadly cast, to include related terrestrial elements. This article explores how the potential normative incoherence related to the protection and preservation of the ecosystems of an international watercourse might be overcome through three approaches, which are explored in treaty practice across the field.
Enforcing transboundary water obligations through investment treaty arbitration: China, Laos and the Mekong River
The study of the intersection between international investment law and international water law is not new. However, this intersection may be better understood through the analysis of specific case studies, regions and/or economic sectors. This article observes the relationship between China and Laos in connection to the construction of dams in the Lancang/Mekong River. In so doing, it addresses China’s attitudes towards the negotiation and conclusion of economic integration and transboundary water agreements, observing a sharp contrast between the two. Against this background, the article examines some of the most important agreements between China and Laos regarding both the protection of foreign investment and the management of shared waters. The article argues that investor‐State dispute settlement may lend some ‘teeth’ to the enforcement of transboundary obligations with regard to the Mekong River.
China and the global water conventions in light of recent developments: Time to take a second look?
China is an important yet often misunderstood upstream neighbour on many transboundary watercourses. In 1997, after participating in the drafting process of the United Nations Convention on the Law of the Non‐navigational Uses of International Watercourses, China, along with Burundi and Turkey, voted against the Convention. Since that time, however, both China’s practice and the law of international watercourses have evolved. In explanation of its vote, China provided four reasons including a lack of general agreement, that the Convention did not recognize sovereignty, that select provisions were imbalanced and disagreement regarding mandatory dispute settlement mechanisms. This article aims to revisit these reasons in light of recent developments and our current understanding of Chinese practice and international water law, asking the question: is it time for China to take a second look? Although China’s vote concerned the Watercourses Convention, given their complementarity, this article will discuss these reasons in relation to both global water conventions, the 1997 Watercourses Convention and the 1992 Water Convention.
The continental shelf beyond 200 nautical miles: Rights and responsibilities by Joanna Mossop Published by Oxford University Press, 2016, 278 pp., £85.00, hardback.
SCIENCE ADVICE AND GLOBAL ENVIRONMENTAL GOVERNANCE: EXPERT INSTITUTIONS AND THE IMPLEMENTATION OF INTERNATIONAL ENVIRONMENTAL TREATIES by Pia M. Kohler Published by Anthem Press, 2019, 226 pp., £80.00, hardback.
Payments for ecosystem services in transboundary water allocation cases: An approach for China and its neighbours
Given the geographical characteristics of river basins, a unidirectional externality problem exists between upstream and downstream countries. Current legal mechanisms include remedial measures that address negative externalities, such as pollution, but fail to recognize or provide systems to reward positive externalities that benefit downstream countries. Payments for ecosystem services (PES), which are widely applied to domestic water quality advancement practices, could be extended to transboundary water allocation cases to mitigate this conflict and balance the interests of upstream and downstream States, providing incentives for both to conserve riverine ecosystems. The PES approach is consistent with the principles of international water law and founded on similar domestic and international practices. Drawing on these experiences and a cooperative approach, China could negotiate PES with its downstream neighbours in transboundary water allocation cases. The PES mechanism could also be applied to similar disputes among other primarily upper‐riparian States and their neighbours.
Evolving normativity in contemporary international water law: A communicative approach to the growing role of non‐state actors
Legitimacy issues in international law have traditionally related to State consent and legality. This State‐centric paradigm, largely built upon legal formalism, fails to fully capture the various forms of participation of non‐State actors (NSAs) in international water law and their impacts. This is especially true in the context of water governance which, as part of global governance, witnessed an increased delegation of decision‐making authority to global institutions and a growing distance between those exercising authority and the public. This article argues that the communicative approach, embedded within international law, can better account for the role of NSAs in the development of norms in international water law, as these legal norms are formed and developed through communication among actors. Public participation, the main avenue through which NSAs participate in international water law, is essentially a communicative process. Therefore, the essential elements of the communicative approach, including inclusiveness, access to information, interaction and continuation, play not only a constitutive but also a functional role in public participation. Together, they combine to form an analytical framework which can be applied to the analysis of the participation of NSAs in international water law.
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