This book engages with international legal responses to the global environmental crisis.
Humanity faces a triple planetary crisis, consisting of the interlinked problems of climate change, depletion of biological diversity and pollution.The chapters in this volume of the Netherlands Yearbook of International Law address important questions of how and to what extent these environmental concerns have been integrated into international law, who or what drives these developments, and what all of this tells us about international law’s ability to tackle the challenges that a deteriorating environment brings for the future of life on Earth.
The strength of the volume is that it brings together a wide range of perspectives on the ‘greening’ phenomenon in international law. It includes perspectives from international environmental law, human rights law, investment law, financial law, humanitarian law and criminal law. Moreover, it raises important questions regarding the validity of the predominant approach in international law to (the protection of) nature. By providing such a wide range of perspectives on international legal responses (or lack thereof) to the environmental crisis, the volume seeks to engage scholars and practitioners from a variety of disciplines. It invites readers to compare the state-of-the-art across disciplines and to reflect on ways to strengthen international law’s responses to the environmental crisis. Furthermore, as has become standard for the Netherlands Yearbook of International Law, the second part consists of a section on Dutch practice in international law.
The Netherlands Yearbook of International Law was first published in 1970. It offers a forum for the publication of scholarly articles in a varying thematic area of public international law.
Chapter 3 is available open access under a Creative Commons Attribution 4.0 International License via link.springer.com.
Author(s): Daniëlla Dam-de Jong, Fabian Amtenbrink
Series: Netherlands Yearbook of International Law, 52
Publisher: T.M.C. Asser Press
Year: 2023
Language: English
Pages: 347
City: Berlin
Board of Editors
Contents
Part I The Greening Phenomenon in International Law
1 A Greener International Law: International Legal Responses to the Global Environmental Crisis
1.1 Introduction
1.2 International Legal Responses to the Global Environmental Crisis
1.3 A Greener International Law?
1.4 Final Reflections
References
2 Remedies for Climate Change—A Decisive Push Towards Paris?
2.1 Introduction
2.2 Remedies and Climate Change: Distinguishing Concepts
2.2.1 The International Law on Remedies
2.2.2 Remedies Versus Climate Change Law
2.3 Framing Remedies for Climate Change
2.3.1 Cessation and Guarantees of Non-repetition
2.3.2 Reparation
2.3.3 Summary and Challenges: A Framework for Climate Change Remedies
2.4 Filling the Frame: Designing Remedies for Climate Change
2.4.1 The Flexibility of Remedies
2.4.2 A Remedial Proposal: Clear Goals, Accountability, and Influencing Processes
2.5 Conclusion
References
3 The Rights of Nature as a Legal Response to the Global Environmental Crisis? A Critical Review of International Law’s ‘Greening’ Agenda
3.1 Introduction
3.2 The Problems with International Law: Sovereignty, Development and Extractivism
3.2.1 Nature and Sovereignty
3.2.2 The Sustainable Development Paradigm
3.2.3 Extractivism and Nature
3.3 Critical Review of the Various Attempts to Incorporate Rights of Nature into International Law
3.3.1 Asserting Rights of Nature as an International Right: The Universal Declaration of Mother Earth
3.3.2 Common Heritage of Humankind, Areas Beyond National Jurisdiction and Rights of Nature
3.4 Learning from Transnational Law: Towards a Relational Approach to Nature?
3.4.1 The Dangers of Universalism
3.4.2 Towards a ‘Relational’ Approach to Nature
3.5 Conclusion
References
4 Greening the Law of Environmental Protection in Armed Conflicts
4.1 Introduction
4.2 Utilizing the Concept of ‘Greening’ in International Law
4.3 The Different Phases of PERAC
4.3.1 First Phase: 1960–1980s
4.3.2 Second Phase: 1990s
4.3.3 Third Phase: The Modern Era (Post-2000s)
4.4 Principal Actors of Greening PERAC
4.4.1 Greening the Practice of PERAC: The Influential Role of UNEP and the UNSC
4.4.2 Greening the Law of PERAC: The Leading Role of the ICRC and the ILC
4.5 Concluding Remarks
References
5 From Anthropos to Oikos in International Criminal Law: A Critical-Theoretical Exploration of Ecocide as an ‘Ecocentric’ Amendment to the Rome Statute
5.1 Introduction
5.2 Anthropocentrism and Ecocentrism: A Conceptual Binary in Environmentalism
5.2.1 Anthropocentrism
5.2.2 Ecocentrism
5.3 Dominant Anthropocentric Conditions in ICL: A Genealogy
5.3.1 The International Community: Humanity as an Abstract Ideal
5.3.2 Marketing of an Ideal Victim
5.4 A Green Progress Narrative in ICL: From Anthropos to Oikos
5.5 Why Such a Green Progress Narrative is Problematic
5.6 Conclusion
References
6 Greening International Investment Agreements
6.1 Introductory Remarks
6.2 Preambles and Policy-Environment
6.3 Reserving Policy Space for Environmental Protection
6.4 Prohibiting or Discouraging the Relaxation of Environmental Standards
6.5 Recognising the Need for Compliance with International Environmental Law
6.6 The Potential of Counterclaims
6.7 Obligations on Investors
6.7.1 Negative Obligations for Investors
6.7.2 Positive Obligations for Investors
6.8 Areas in Need of Greening
6.9 Conclusion
References
7 Climate Justice and The Greening of Investment Arbitration
7.1 Introduction
7.2 The Concept of Climate Justice
7.3 Systemic Integration of Climate Justice in Investment Arbitration
7.4 Climate Justice and Obligations of States
7.4.1 Mitigation
7.4.2 Adaptation
7.4.3 Finance
7.4.4 Nationally Determined Contributions (NDCs)
7.5 Harmonization of Climate Justice and Treatment Standards
7.5.1 Expropriation
7.5.2 Fair and Equitable Treatment (FET)
7.5.3 Most Favoured Nation (MFN) and National Treatment (NT)
7.5.4 Standard of Review
7.6 Conclusions
References
8 The International Regulation and Coordination of Sustainable Finance
8.1 Introduction
8.2 The Rationale of Sustainable Finance Regulation
8.2.1 ESG Disclosures and Market Transparency
8.2.2 Climate Action
8.2.3 The Recognition of Climate-Related Financial Risks
8.3 The Tumultuous Development of Sustainable Finance Regulation
8.3.1 The Diverging Regulatory Approaches to Sustainability Disclosure
8.3.2 Taxonomies: A Novel Instrument for Market Transparency and the Transition
8.3.3 Supervisory Initiatives for Risk Management
8.4 The Coordination of Sustainable Finance Regulation at International Level
8.4.1 From the TCFD to the ISSB: Hybrid Regulation on Trial
8.4.2 Taxonomies: In Search of a Common Dictionary
8.4.3 Banking Regulation: A Two-Track System?
8.5 Conclusion
References
9 “A Coalition of the Committed”— Climate Protection of Central Banks Through the Central Bank Supervisors Network for Greening the Financial System (NGFS) from a Perspective of Global Administrative Law
9.1 Beyond “Minilateralism”
9.2 Towards “Generous Orthodoxy”
9.2.1 Adjusting “Operational Frameworks”
9.2.2 Leveraging “Financial Stability”
9.2.3 Wielding “Liquid Authority”
9.3 Against “Unjustified Disregard”
9.3.1 Clandestine “Administrative Agencies”
9.3.2 Disregard of “A Common Concern of Humankind”
9.3.3 Disregard “Infra Vires”?
9.4 Between “Ersatz Governments” and “Building Blocks”
References
Part II Dutch Practice in International Law
10 Ziada vs Gantz and Eshel: A Civilian Claimant Between Ship and Shore in The Netherlands
10.1 Introduction
10.2 Jurisdictional Immunities as Exceptions Recognized in International Law
10.3 Jurisdiction in National and International Law
10.3.1 Is There a Universal Civil Jurisdiction?
10.4 The Ziada Case
10.4.1 The Facts
10.4.2 The Claim
10.5 Jurisdiction in Dutch Civil Law
10.5.1 Jurisdiction under the Dutch Code of Civil Procedure
10.5.2 Jurisdiction Under Article 9 Rv: A Forum Necessitatis
10.6 The Dutch Courts’ Position on Jurisdiction in This Case
10.7 Israel’s Civil Liability Provisions
10.8 The Netherlands as a Forum Necessitatis?
10.8.1 Impossibility for the Purposes of Article 9(b) Rv
10.8.2 Unacceptability for the Purposes of Article 9(c) Rv
10.8.3 Connection to the Dutch Legal Sphere
10.9 Conclusion
References
11 Reimagining the Energy Corporation: Milieudefensie and Others v Royal Dutch Shell Plc
11.1 Introduction
11.2 Background: The Improving Odds of Private Climate Litigation
11.3 The Judgment
11.4 Discussion: Reimagining the Energy Corporation Through Climate Litigation
11.5 Conclusion
References
12 Syrian War Crimes Trials in The Netherlands: Claiming Universal Jurisdiction Over Terrorist Offences and the War Crime of Outrages Upon Personal Dignity of the Dead
12.1 Introduction
12.2 The Ahmad al-Y. and Ahmad al-Khedr Cases: Relevant Facts and Charges
12.2.1 The Case against Ahmad al-Y.
12.2.2 The Case Against Ahmad al-Khedr
12.3 The Exercise of Universal Jurisdiction in Ahmad al-Y. and Ahmad al-Khedr
12.3.1 Establishing Jurisdiction Over the Charged Terrorist Offences
12.3.2 Treaty-Based Universal Jurisdiction Over Terrorist Offences in a Non-party State?
12.3.3 Charges Falling within the Meaning of Article 2 of the Terrorist Bombings Convention
12.4 The War Crimes Charges: Defining the Limits of ‘Outrages Upon Personal Dignity’
12.4.1 The Acts in ‘Video 1’: Deceased Persons as Victims of Outrages Upon Personal Dignity?
12.4.2 The Acts in ‘Video 2’: Exposure to Public Curiosity as an Outrage Upon Personal Dignity?
12.5 Conclusion
References
Table of Cases
INTERNATIONAL
NATIONAL
Index
