Table Of Content

Global Environmental Change and Innovation in International Law 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 the 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. Neil Craik is an Associate Professor at the University of Waterloo with appointments to the Balsillie School of International Affairs and the School of Environment, Enterprise and Development, where he teaches and researches in the fields of international and Canadian environmental law. His current research examines the legal structure of global commons regimes, with particular interests in climate and geoengineering law and governance, deep seabed mining regulation, and environmental impact assessment. He is the author of several books, including The International Law of Environmental Impact Assessment: Process Substance and Integration (Cambridge University Press, 2008). He is a Senior Fellow at the Centre for International Governance Innovation (CIGI) and Co- Director of the BSIA/CIGI International Law Summer Institute. Cameron S. G. Jefferies researches in the areas of environmental law, natural resource law, ocean law, and animal law. He is also interested in public interest law and has advocated for shark conservation and environmental rights in various forums. Jefferies has published a number of articles and book chapters on international and domestic environmental law, wildlife conservation, and climate change. He holds degrees from the University of Alberta and the University of Virginia, where he studied as a Fulbright Scholar. He is the author of Marine Mammal Conservation and the Law of the Sea (2016) and co- author of Tort Law (sixth edition, 2017). Sara L. Seck is an Associate Professor at the Schulich School of Law and Marine Environmental Law Institute, Dalhousie University, a Senior Fellow in the International Law Research Program, Centre for International Governance Innovation (CIGI), and Co- Director of the BSIA/CIGI International Law Summer Institute. In 2015, Seck received the IUCN Academy of Environmental Law’s Emerging Scholarship Award for her research on transnational corporate accountability and colonialism in international environmental law. She is a member of the editorial board of the Business & Human Rights Journal and a member of the International Law Association’s Study Group on Business and Human Rights. Tim Stephens is Professor of International Law and Australian Research Council Future Fellow at the University of Sydney Faculty of Law. He is the President of the Australian and New Zealand Society of International Law. His major works include The International Law of the Sea (second edition, 2016) with Donald R. Rothwell and International Courts and Environmental Protection (Cambridge University Press, 2009). His Australian Research Council Future Fellowship research project is examining the implications of the Anthropocene for international law. Global Environmental Change and Innovation in International Law Edited by NEIL CRAIK University of Waterloo CAMERON S. G. JEFFERIES University of Alberta SARA L. SECK Dalhousie University TIM STEPHENS University of Sydney University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108423441 DOI: 10.1017/9781108526081 © Cambridge University Press 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging- in- Publication Data Names: Craik, Neil, 1965, editor. | Jefferies, Cameron S.G., editor. | Seck Sara L., editor. | Stephens, Tim, editor. Title: Global environmental change and innovation in international law / edited by Neil Craik, University of Waterloo School of Environment, Enterprise and Development; Cameron S.G. Jefferies, University of Alberta Faculty of Law; Sara L. Seck, Dalhousie University, Nova Scotia; Tim Stephens, University of Sydney Faculty of Law. Description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2018. | Based on papers presented at the Sixth International Four Societies Conference, 21-22 July 2016 in Waterloo, ON, sponsored by the Australian and New Zealand Society of International Law (ANZSIL), the Canadian Council on International Law (CCIL), the Japanese Society of International Law (JSIL) and the American Society of International Law (ASIL). | Includes bibliographical references and index. Identifiers: LCCN 2018009344 | ISBN 9781108423441 (hardback : alk. paper) Subjects: LCSH: Environmental law, International—Congresses. | Foreign trade regulation—Congresses. | Climatic changes—Law and legislation—Congresses Classification: LCC K3584.8 .G577 2018 | DDC 344.04/6—dc23 LC record available at https://lccn.loc.gov/2018009344 ISBN 978-1-108-42344-1 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third- party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Contents List of Figures page ix List of Tables xi List of Contributors xiii Preface xxi Oonagh E. Fitzgerald and Cameron S. G. Jefferies List of Abbreviations xxv 1 International Law, Innovation, and Environmental Change in the Anthropocene 1 Cameron S. G. Jefferies, Sara L. Seck, and Tim Stephens part i innovation in legal responses to normative change 19 2 Differentiation in International Environmental Law: Has Pragmatism Displaced Considerations of Justice? 21 Patricia Galvao Ferreira 3 The Paris Agreement: Continuity and Change within the Climate Regime 42 Tomoaki Nishimura 4 Global Climate Finance and the Green Climate Fund: Can Innovation and Democracy Co exist? 59 Katherine Owens v vi Contents part iia innovative legal responses to the consequences of physical change: ecosystem impacts 79 5 ‘Blue Carbon’ and the Need to Integrate Mitigation, Adaptation, and Conservation Goals within the International Climate Law Framework 81 Justine Bell- James 6 Developments in International Fisheries Law and Their Contribution to Improving the Effectiveness of RFMOs and Other Environmental Regimes 102 Holly Matley part iib innovative legal responses to the consequences of physical change: human rights impact 123 7 Addressing Climate- Induced Displacement: The Need for Innovation in International Law 125 Hitomi Kimura 8 Climate Change and Protection of the Marine Environment: Food Security, Evolutionary Interpretation, and the Novel Application of Dispute Settlement Mechanisms under the United Nations Convention on the Law of the Sea 138 Chie Kojima part iii international law responses to technological innovation 159 9 Solar Radiation Management Geoengineering and Strict Liability for Ultrahazardous Activities 161 Kerryn Brent 10 Balancing Innovation, Development, and Security: Dual- Use Concepts in Export Control Laws 180 Machiko Kanetake 11 Innovative Policies for Overcoming Barriers to Financing for Green Energy Projects in Sub-S aharan Africa 201 Leslyn A. Lewis Contents vii 12 International Cooperation, Intellectual Property, and Climate- Essential Innovation 223 Brian R. Israel part iv innovation to address governance challenges in intersecting regimes 247 13 The Climate-Change Tent and the Trade Cathedral: Assessing the Relationship between Environmental Regulations and WTO Law after the Paris Agreement 249 Maria Panezi 14 Legislative Innovation in the Trade and Climate Regimes: Towards a Framework for the Comparative Analysis of Multilateral Lawmaking 270 Nicolas Lamp 15 Investor–S tate Arbitration and Domestic Environmental Governance: Recent Developments in Canada 296 Matthew Levine part v conclusions 315 16 Conclusions: The Value of an Innovation Framework for International Law 317 Neil Craik and Sara L. Seck Index 329