Tag Archives: regulation

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing (L. Parks and E. Morgera)

Authors

Louisa Parks and Elisa Morgera

Keywords

benefit-sharing, international law, environmental law, human rights law, human rights, oceans law, regulation, national law, regional law, indigenous peoples, local communities, norm diffusion, scholarship, conservation, sustainability, natural resources, power asymmetry

Abstract

No systematic study discusses the evolution of fair and equitable benefit-sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit-sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit-sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

Citation

(2015) 24:3 Review of European, Comparative and International Environmental Law 353-367

Paper

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing

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Climate Change Adaptation and the Structural Transformation of Environmental Law (J. B. Ruhl)

Author(s)

J. B. Ruhl

Keywords

climate change, environmental law, greenhouse gas emissions, adaptation, mitigation, policy, pollution, land law, decision methods, regulation, conciliation

Abstract

The path of environmental law has come to a cliff called climate change, and there is no turning around. As climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this “adaptation deficit” become a concern now actively included in climate change policy debate. Previously treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success.

But do not expect adaptation policy to play out for environmental law the way mitigation policy has and is likely to continue. Mitigation policy has been framed as an initiative primarily within the domain of environmental law – a form of pollution control on steroids – and thus it will be environmental law that makes the first move and other policy realms that apply support or pushback. By contrast, environmental law does not “own” adaptation policy; rather, numerous policy fronts will compete simultaneously for primacy and priority as people demand protection from harms and enjoyment of benefits that play out as climate change moves relentlessly forward. This makes it all the more pressing for environmental law, early in the nation’s formulation of adaptation policy, to find its voice and establish its place in the effort to close the adaptation deficit.

Toward that purpose, this Article examines the context and policy dynamics of climate change adaptation and identifies ten trends that will have profound normative and structural impacts on how environmental law fits in: 1) Shift in emphasis from preservationism to transitionalism in natural resources conservation policy. 2) Rapid evolution of property rights and liability rules associated with natural capital adaptation resources. 3) Accelerated merger of water law, land use law, and environmental law. 4) Incorporation of a human rights dimension in climate change adaptation policy. 5) Catastrophe and crisis avoidance and management as an overarching adaptation policy priority. 6) Frequent reconfigurations of trans-policy linkages and trade-offs at all scales and across scales. 7) Shift from “front end” decision methods relying on robust predictive capacity to “back end” decision methods relying on active adaptive management. 8) Greater variety and flexibility in regulatory instruments 9) Increased reliance on multi-scalar governance networks. 10) Conciliation.

Citation

(2009) 40 Environmental Law 343

Paper

Climate Change Adaptation and the Structural Transformation of Environmental Law

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Human Rights and Environmental Regulation (R. M. Bratspies)

Author(s)

Rebecca M. Bratspies

Keywords

environment, regulation, BP Oil Spill, United States, US, legal obligations, participations, fairness, accountability, legitimacy

Abstract

Because environmental regulators exercise vast discretion against a background of scientific uncertainty, the background assumptions they use to guide their decisionmaking are particularly influential. This article suggests that were federal regulators to view themselves as human rights decisionmakers, we might well see a new kind of regulatory decisionmaking emerge–one not only more responsive and transparent but also more likely to enjoy the trust of the American public. Drawing from the BP Oil Spill and the United States regulatory response to climate change this article shows how human rights norms might enrich domestic regulatory processes and help environmental regulators implement their statutory mission of protecting the public welfare. It demonstrates how interpreting domestic legal obligations through the lens of human rights would enhance a commitment to participation, fairness and accountability, thereby making the domestic regulatory process not only better and fairer, but also more likely to be perceived as legitimate by the general public. The article concludes by pointing out some key obstacles the human rights approach for achieving environmental ends.

Citation

(2012) 19 New York University Environmental Law Journal 225.

Paper

Human Rights and Environmental Regulation

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China Water Falls (S. Vernay & N. Ganesan)

Author(s)

Stephane Vernay and Nadine Ganesan

Keywords

China, Drinking water, Foreign investment, Regulation, Utilities, Water supply

Abstract

Details the problems of access to safe drinking water in China , and examines the regulatory framework governing foreign investment in the country’s municipal water industry. Reviews the sector’s institutional framework, the policy concerning foreign direct investment, the typical structure of foreign investment projects and the main regulatory provisions, including the rules on competitive tendering for water utilities projects. Discusses the financing rules for such projects, and the main challenges facing foreign investors, such as the reallocation of risks.

Citation

(2010) 3 International Business Law Journal 233-251

Paper

China Water Falls

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The regulation of multinational companies operating in developing countries: a case study of the Chad-Cameroon pipeline project (E. Mujih)

Author

Edwin Mujih

Keywords

Cameroon, Chad, corporate social responsibility, developing countries, environmental protection, human rights record, international law, multinational companies, pipelines, regulation

Abstract

Examines, with reference to the Chad-Cameroon oil pipeline, the regulatory problems of projects involving multinational companies in developing countries. Outlines key features of the project, notes the political, economic, social and environmental concerns associated with it, and evaluates the measures taken to address these. Reviews the shortcomings of the project’s legal framework and considers the international law rules that may be used to fill the regulatory gaps and increase the accountability of multinationals.

Citation

(2008) 16(1) African Journal of International Comparative Law, 83-99.

Paper

The regulation of multinational companies operating in developing countries: a case study of the Chad-Cameroon pipeline project.

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