Volume 21, 2017

Alexander Gillespie

This article is about the development of best international practice and the New Zealand experience in the formation of scientific advice, from which robust policy decisions can be based. While solid progress has recently been made in this area in New Zealand, there is still considerable work to be done.

Luis Fuentes Godoy

International law has always been a political tool for the domination of issues of social and economic importance, and environmental protection has certainly not been an exception. It is generally considered that international environmental law emerged in the late 1960's, with the rise of the environmentalist movement and the 1972 Declaration of the United Nations Conference on the Human Environment in Stockholm, Sweden (Stockholm Declaration). However, national and international laws and policies for the protection of the environment have existed since the 19th century, when the industrial revolution increased economic growth and urban population in the developed world. Industrialised states began to expand their economies beyond their territories, and with them, the need to regulate navigation rights and commercial activities on transboundary resources such as oceans, lakes and rivers became crucial for peaceful coexistence. Additionally, during this period, social movements started to promote the conservation and preservation of the environment with the creation of natural reserves and the protection of animal wildlife. It was within this movement that values and ideas over the relationship between the economy and the environment collided for the first time, and they have remained in constant dispute until the present day. Anthropocentric approaches to the environment believe in the protection of the biosphere for its instrumental service to humankind, while ecocentric ideas consider the environment as a holistic system that should be preserved for its intrinsic worth. These perspectives on the environment have struggled since the origin of international environmental law for the control of the laws and policies that are enacted to regulate human activities, and the effects they have on the ecosystems of the planet. Anthropocentric perspectives on environmental protection dominate the political discussion in the beginning when they succeeded in appointing their representatives on key positions in governments of developed countries. Their postulates of conserving nature for future use by humanity ended up giving content to national and international law. Ecocentrists, on the other hand, developed their ideas in the scientific and academic fields and their influence on international environmental law was limited. The creation of the United Nations brought a new world order in which the protection of human rights was the essential issue of concern. As a result, environmental protection continued to evolve with an anthropocentric focus. However, the leniency of international environmental law permitted an unrestricted growth in technology, industry and warfare that caused severe harm to the environment. Social concerns over the irresponsible contamination of the planet gave rise to a massive environmental movement in the 1960s, that urged governments to adopt stricter environmental regulations. Environmentalism represented a reawakening of ecocentrist beliefs, giving them the political power and the ideal opportunity to finally be able to incorporate their concepts into international environmental law in the 1972 Stockholm Declaration. This article examines the disputes between anthropocentrism and ecocentrism along with the historic events that motivated the legal and political frameworks that were established before the Stockholm Declaration, as well as the scientific and political discussions that shaped the evolution of international environmental law.

Matthew CM Hill

Climate change will profoundly impact the physical and human world well into the 21st century and likely beyond. Since the beginning of international climate change negotiations at the 1992 Earth Summit in Rio De Janeiro there has been a critical need for international environmental efforts to culminate into an effective global response to climate change. With the adoption of the Paris Agreement in 2015, a new diversified approach was attempted relying on more "bottom up" mitigation measures, taking into account national sovereignty to enhance compliance. The issue of differentiation between the parties is now highly relevant. Specifically, the new terms "progression" and "highest possible ambition" help set the scope for the level of differentiation. However, it is not yet known what the exact scope might be. This article examines these new terms by looking at how they appear in the Paris Agreement and how they can be understood in the wider context. To do this, it examines their textual basis, before regarding the wider international legal framework and norms including those found in human rights law and existing environmental law, ending with a brief overview of the role of litigation attempts post-Paris.

Luke Elborough

Climate change is a global concern of humankind. The impacts will touch almost every aspect of our lives and countering the challenge requires a comprehensive international response. This article argues that despite individual decisions in international climate-related litigation not achieving climate justice, judicial and arbitral decisions foster dialogue among significant actors. Most imperatively, this highlights governance gaps, thereby emphasising significant questions regarding how to constructively reform the climate, trade and investment regimes. Examining relevant decisions of the International Court of Justice (ICJ) indicates that the ICJ could potentially beneficially develop the scope of international obligations on states to address climate change, yet there is no guarantee given the underdevelopment of fundamental international obligations. Surveying key cases from the World Trade Organization (WTO) dispute settlement bodies as well as investor-state arbitral tribunals leads to the conclusion that there are deficiencies with both systems which fundamentally must be rectified if climate justice is to be achieved. Several starting points are identified, in particular greater emphasis on sustainable development in the WTO as well as substantial modification of investment rules. Significantly, utilising the compelling force of international human rights could have tangible benefits, especially asserting the human rights dimensions of climate issues in trade and investment spheres. Overall, while climate change litigation may not provide definitive solutions, such cases reveal structural deficiencies and expose institutional preferences within the outdated rules of the international economic system. These impede concerted climate action by the international community, an issue that is accentuated by the comparative weakness of climate change obligations. International litigation involving climate dimensions will continue to instigate, influence and strengthen dialogue to compel civil society, private entities and most importantly political actors to take meaningful climate action.

Mark Bracey

Emissions trading schemes are becoming ever more prevalent in climate change policy around the world. Implementing such a scheme requires significant decisions to be made regarding its coverage and the costs that its participants will bear. This article focuses closely on the scheme that has existed in New Zealand since 2008. The article examines the legislation of the scheme and any significant changes that have been made throughout its history. Specifically, the examination will involve deciphering the justifications and objectives underlying the scheme in order to compare these to the provisions as enacted in the legislation. The aim is to show that there is a disjuncture between what the scheme was intended to achieve and what has been enacted in the legislation, with the overall result being that the scheme has not adequately reduced greenhouse gas emissions levels.

Julia Maskill

In this article, I assess how well the Resource Management Act 1991 (RMA) supports food security in Aotearoa New Zealand and whether reforms to its terms would help to strengthen its role for this purpose. I describe the multidisciplinary concept of food security and its status in Aotearoa New Zealand, and identify provisions of the RMA that empower planning approaches to promote two aspects: a positive food environment and long-term protection of natural resources for food production. I analyse how central government's interventions to release rural land with productive soils for development in Tāmaki Makaurau Auckland overrode Auckland Council's ability to fully implement RMA provisions to promote long-term food security. I conclude that the best way forward for food security would be to formalise it as an ongoing institutionalised policy area for broad central government attention to avoid repeat undermining of RMA implementation, rather than by another round of RMA reforms. My reasons include that adding food security to the purposes of the RMA would only address some of its requirements and that local authority implementation of the RMA is in any case always subject to central government's support. 

William Hume-Moir

This article examines the use of adaptive management under the Fisheries Act 1996. Adaptive management has the potential to reduce risk and uncertainty in fisheries management in the face of climate change. To be efficient it requires a legislative regime that promotes clear management objectives, a grounding in precaution, and administrative flexibility. This article argues that the Fisheries Act 1996 does not accord with these requirements because of its grounding in an ideology that is supposed to achieve environmentally sound outcomes through the ownership of private property. The result of such an ideology is an Act that promotes certainty and commercial growth ahead of flexibility and precaution. As such, adaptive management is inherently at odds with the Fisheries Act.

David J Round

The pressures of international tourism, already provoking the resentment of local inhabitants in some parts of the world, present particular management issues where tourists are attracted to undeveloped wild country with minimal infrastructure. Wilderness recreation is often underlain by a philosophy of "Nature on Nature's terms" fundamentally opposed to the tourism industry's commercial imperatives and its need for safe, predictable experiences. In New Zealand, the Conservation Act 1987 draws a distinction between "tourism" and "recreation", and requires the Department of Conservation, which administers most wild lands, to prefer "recreation" and do no more than "allow" tourism. In practice, the Department in many ways ignores its legal obligations and behaves as an arm of the tourism industry. This provokes the ire of New Zealand users of the public conservation estate, and also endangers wilderness tourism itself, as pressure of numbers damages the very things - unspoilt Nature, simple living and solitude - that tourists come to experience. Yet legally guaranteed public access, treasured by locals, impedes effective management of large numbers of visitors. The author suggests a means whereby, with minimal unpleasantness and legal change, overseas visitors may be gently encouraged to prefer slightly less fragile and wild country for tourism experiences, to the mutual benefit of locals, tourists, the tourism industry and the national economy.