Global Environmental Change and Innovation in International Law

Description

The challenges to global order posed by rapid environmental change are increasingly recognized as defining features of our time. In this groundbreaking work, the concept of innovation is deployed to explore normative and institutional responses in international law to such environmental change by addressing two fundamental themes: first, whether law can foresee, prevent, and adapt to environmental transformations; and second, whether international legal responses to social, economic, and technological innovation can appropriately reflect the evolving needs of contemporary societies at national and international scales. Using a range of case studies, the contributions to this collection track innovation - descriptively, normatively, and as a process in and of itself - to explain international environmental law's functionality in the Anthropocene. This book should be read by anyone interested in the critical intersection of environmental and international law. Cover Half Title Title Page Imprints Page Contents List of Figures List of Tables List of Contributors Preface List of Abbreviations 1 International Law, Innovation, and Environmental Change in the Anthropocene 1.1. Why We Need Innovation: Global Environmental Challenges 1.2. How Can International Law Respond? Prospects for Normative Innovation in the Anthropocene 1.2.1. Defining Innovation 1.2.2. International Legal Innovation in the Anthropocene 1.2.3. The Science–Law Interface 1.3. The Contributions in this Volume: The Dimensions of Innovation in Contemporary International Law PART I. Innovation in Legal Responses to Normative Change 2 Differentiation in International Environmental Law 2.1. Introduction 2.2. Environmental Justice and the Principle of Differentiation 2.3. Unpacking the Normative Bases for Differentiation in IEL 2.4. Examining State Practice on Differentiation in IEL 2.4.1. Disparities between Treaty Text and State Practice 2.4.2. Confounding Exception: Climate Justice Differentiation 2.5. Conclusion 3 The Paris Agreement 3.1. Introduction 3.2. Getting to Paris: The UNFCCC, the Kyoto Protocol, and the Post­Kyoto Negotiations 3.3. Main Elements of the Paris Agreement inside the UNFCCC Regime 3.3.1. Objectives and Principles 3.3.2. Nationally Determined Contributions 3.3.3. Market Mechanisms 3.3.4. Adaptation and Loss and Damage 3.3.5. Finance 3.3.6. International Cooperation on Climate Change outside the UNFCCC Regime 3.4. Conclusion 4 Global Climate Finance and the Green Climate Fund 4.1. Forms of Innovation under the Green Climate Fund 4.2. Constructing a Process for Democratic Innovation 4.3. The Deliberative Capacities of the Green Climate Fund 4.3.1. Processes for Initiating and Preparing Funding Proposals 4.3.2. Processes for Assessing and Deciding on Funding Proposals 4.4. Conclusions PART IIA. Innovative Legal Responses to the Consequences of Physical Change: Ecosystem Impacts 5 ‘Blue Carbon’ and the Need to Integrate Mitigation, Adaptation, and Conservation Goals within the International Climate Law Framework 5.1. Introduction 5.2. Innovation and Climate-change Law: Integrating Mitigation, Adaptation, and Conservation Goals 5.3. Coastal Ecosystems: Carbon Sequestration and Beyond 5.3.1. An Introduction to Coastal Ecosystems and Carbon 5.3.2. Multiple Benefits 5.4. What Should a Blue-Carbon Project Consist of, and What Are the Costs? 5.5. Blue­carbon Opportunities within the International Law Framework 5.5.1. The UNFCCC and REDD+ 5.5.2. The Role of Non­carbon Benefits under REDD+ 5.6. Other Avenues for Recognizing the Non-carbon Benefits of Coastal Ecosystems under the Paris Agreement – Adaptation 5.7. Conclusion 6 Developments in International Fisheries Law and Their Contribution to Improving the Effectiveness of RFMOs and Other Environmental Regimes 6.1. High­seas Fisheries: Problems and Prospects 6.1.1. The International Regulatory Framework for Certain High-seas Fisheries 6.1.2. Problems in International Fisheries Governance 6.2. Innovative Developments in International Fisheries Law to Improve Compliance and Effectiveness 6.2.1. Mechanisms to Improve Effectiveness and Compliance 6.3. Lessons Learned and Potential Application to Other Environmental Regimes 6.3.1. Lessons from the International Fisheries Regime for International Environmental Law 6.3.2. Application to Biodiversity beyond National Jurisdiction 6.4. Conclusion PART IIB. Innovative Legal Responses to the Consequences of Physical Change: Human Rights Impact 7 Addressing Climate-Induced Displacement 7.1. Introduction 7.2. Climate-induced Displacement and International Law 7.2.1. The Challenge of Defining ‘Climate Refugees’ 7.2.2. Internal Climate-induced Displacement 7.2.3. Climate-induced Displacement and the UNFCCC 7.2.4. The Need for Planned Climate­induced Migration 7.3. Conclusion 8 Climate Change and Protection of the Marine Environment 8.1. Food Security, the Right to Adequate Food, and UNCLOS 8.1.1. UNCLOS and Food Security 8.1.2. UNCLOS and the Right to Adequate Food 8.2. UNCLOS Part XII and Climate Change 8.2.1. Prevention, Reduction, and Control of Marine Pollution 8.2.2. Protection and Preservation of Marine Ecosystems 8.3. International Dispute Settlement under UNCLOS and Climate Change 8.3.1. Use of UNCLOS Part XV for Non­compliance with UNFCCC 8.3.2. Use of UNCLOS Part XV through the Fish Stocks Agreement 8.3.3. Use of UNCLOS Part XV through RFMOs 8.4. Conclusion PART III. International Law Responses to Technological Innovation 9 Solar Radiation Management Geoengineering and Strict Liability for Ultrahazardous Activities 9.1. Introduction 9.2. Risks of Global Environmental Harm from SAI 9.3. The No-harm Rule and SAI 9.4. SAI and the Development of the No-harm Rule for Ultra-hazardous Activities 9.5. Conclusion 10 Balancing Innovation, Development, and Security 10.1. Dual-use Items in our Societies 10.2. Regulatory Frameworks 10.3. Multifaceted Duality and Dichotomy 10.3.1. Peaceful versus Non-peaceful Purposes 10.3.2. States versus Non-state Actors 10.3.3. Safe versus Sensitive Destinations 10.3.4. Economic Development versus Security 10.3.5. Military versus Human Security 10.4. Risk Assessment 10.5. Conclusion 11 Innovative Policies for Overcoming Barriers to Financing for Green Energy Projects in Sub-Saharan Africa 11.1. Development Agency Interventions in Energy Modernization in SSA 11.2. The Problem of Financing High-capital Renewable-energy Projects in SSA 11.3. The Ghanaian Case Study: Attracting Investment through Innovative Industrial Policy 11.3.1. The BXC Project 11.3.2. Model Jurisdictions for Renewable-energy Investment in SSA: Ghana and Uganda Compared 11.4. Building Innovative Industrial Policy Institutions in the Ghanaian Renewable-energy Sector 11.4.1. The GET FiT Solution 11.4.2. Building Financial Relations for an Innovative Industrial Policy 11.4.3. Creating Incentives to Invest 11.5. Conclusion 12 International Cooperation, Intellectual Property, and Climate-Essential Innovation 12.1. From Pooling Money to Pooling Knowledge 12.2. Intellectual Property, Technological Innovation, and Diffusion 12.2.1. Innovation: Full Participation, Deep Cooperation 12.2.2. Diffusion: Availability, Affordability 12.2.3. Balancing the Innovation and Diffusion Sides of the Equation 12.3. Engineering a Climate Technology Moonshot 12.3.1. Overview of the Climate Technology Pool 12.3.2. Legal and Institutional Arrangements for Optimizing Innovation and Diffusion 12.3.3. Comparing the CTP with Patent Licensing Collectives 12.4. Hybridizing Public and Private Ordering 12.5. From Paris to Hamburg and beyond PART IV. Innovation to Address Governance Challenges in Intersecting Regimes 13 The Climate-Change Tent and the Trade Cathedral 13.1. WTO Law and Space for National Environmental Regulations: A Case for Carbon Pricing 13.1.1. Carbon Pricing and Border Carbon Adjustments 13.1.2. Carbon Pricing and Other Agreements 13.1.3. Tariff Renegotiation 13.2. WTO Policy Space for Carbon-accountable Trade Measures 13.3. Conclusions: Potluck Governance at the WTO 14 Legislative Innovation in the Trade and Climate Regimes 14.1. Introduction 14.2. Two Models of International Lawmaking 14.3. Principles 14.4. Techniques 14.5. Modalities 14.6. Form 14.7. Effects 14.8. Conclusion 15 Investor–State Arbitration and Domestic Environmental Governance 15.1. Canada’s Investment Treaty Practice: Fair and Equitable Treatment 15.2. NAFTA Article 1105: Fair and Equitable Treatment 15.3. NAFTA Chapter 11 Arbitrations on the Ontario Green Energy Act 15.4. bilcon’s Expansive Standard for Fair and Equitable Treatment 15.5. Conclusion PART V. Conclusions 16 Conclusions 16.1. Introduction 16.2. What is Legal Innovation? 16.3. Sources of Innovation 16.4. Instruments of Innovation 16.5. Innovation and Transformation 16.6. Conclusion Index