2. GLOBAL ENVIRONMENTAL LAW

In their leading 2009 article on the ‘emergence’ of GEL, Tseming Yang and Robert Percival describe GEL as ‘the set of legal principles developed by national, international, and transnational environmental regulatory systems to protect the environment and manage natural resources’.Footnote ¹⁰ In this early work, Yang and Percival conceived GEL largely in descriptive terms as a new way of capturing the polycentric development of the field. Writing in a later article for the inaugural issue of TEL, Yang posited GEL as the product of various globalizing trends that have created greater integration and convergence between previously separate systems of national and international environmental laws.Footnote ¹¹ This development, Yang argued, was relevant not only as a theoretical concept, but also for ‘the actual practice of environmental law’.Footnote ¹² However, even in these early conceptions, GEL appeared to have a normative underpinning through its emphasis on global-level responses as ideal or at least necessary for both substantive and moral reasons.Footnote ¹³

Later contributions on GEL, including several featured in this journal, have fleshed out its normative dimensions through discussion of topics such as global environmental constitutionalism.Footnote ¹⁴ The Symposium Collection on GEL in this issue continues this tradition, deepening our understanding of this field. As explained in Elisa Morgera's Foreword, the symposium sought to discuss ‘whether and to what extent the emerging concept of global environmental law can help in shedding new light on the evolution and challenges of environmental law across different levels and sectors’.Footnote ¹⁵ In the symposium articles and commentaries, the authors explore questions such as whether GEL is a research approach, an interpretative approach or a distinct body of law, and to what extent it adds to existing theories and approaches in international and transnational environmental law. As Morgera notes, ‘[t]he symposium also provided an opportunity to engage with distinctions between global environmental law and transnational environmental law’.Footnote ¹⁶

3. RELATIONSHIP BETWEEN GLOBAL AND TRANSNATIONAL ENVIRONMENTAL LAW

How then does GEL relate to or overlap with transnational environmental law, and the multiple other notions of environmental law that now populate the field?

As discussed in ‘Introducing Transnational Environmental Law’, the editorial to TEL’s inaugural issue, there are similarities between transnational and global environmental law. For example, both are ‘interested in the manner in which and the extent to which environmental law responds to the global nature of most of today's environmental problems’.Footnote ¹⁷ Equally, both seek to understand the role of norms that are neither purely national nor international but arise ‘beyond the state’.Footnote ¹⁸ However, while GEL is generally conceived in holistic terms as the development of globalized environmental law principles, norms and regulatory approaches that seek some larger normative end such as global environmental justice, transnational environmental law tends to be presented as ‘an approach to legal studies and practices’.Footnote ¹⁹ The primary preoccupation of a global environmental lawyer, as the symposium articles indicate, is thus with questions of legitimacy and accountability, voice and exclusion, ethics and epistemology. These questions may also motivate transnational environmental legal research and practice, but the general goal of such work is to generate a new, richer understanding and application of environmental law that elucidates its many layers, interconnections and dynamic interactions.

4. DO DISTINCTIONS BETWEEN TRANSNATIONAL AND ‘OTHER’ ENVIRONMENTAL LAWS MATTER?

A reader might reasonably ask whether the creation of these different categories of environmental law is helpful in either a descriptive or normative sense. Does it aid us in understanding and responding to environmental crises?

Erika Techera's article – apart from, but related to, the symposium articles – on shark conservation provides a practical illustration of the value of multiple notions of environmental law, as well as what they may help to illuminate or potentially to conceal. In particular, her contribution reminds us that globalized accounts sometimes overlook the significance of cultural variables, which remain of crucial import especially in developing states.Footnote ²⁰ This coheres with the warning in Natasha Affolder's symposium article regarding the potential ‘perils’ of the GEL approach, which may create its own anxieties about the potential risks of exclusion. Affolder thus calls for globally focused studies to be undertaken with humility and caution.Footnote ²¹

Techera's analysis of shark conservation in the island states of the Indo-Pacific region concludes that the diverse histories of these states, stretching back across thousands of years of transoceanic settlement, led to broadly divergent beliefs about aquatic life generally and sharks in particular. Contemporary attitudes, far from homogenizing in a modern and globalized melting-pot, remain distinctive and continue to exert contrastive pressures on both state and non-state approaches to shark management. While some Pacific cultures have mythologized sharks and attributed spiritual powers to them, others – such as island societies in the Indian Ocean – have regarded sharks with spiritual indifference, allowing economic factors to drive patterns of shark utilization. ‘Shark sanctuaries’ have emerged in a number of Indo-Pacific island states, but Techera cautions that this common label, often employed in media accounts, obscures a great deal of variation in shark management. A ‘sanctuary’ typically denotes the operation of a stringent area management regime, yet most of the states in Techera's study eschew area-specific rules, choosing instead to address shark management and conservation through fisheries regulation. Here the variation is substantial. Fisheries laws across the region reflect considerably different strategies, evidenced in disparate finning and bycatch rules as well as equipment restrictions. ‘The variances in the laws’, Techera writes, ‘are likely to relate at least in part to underlying cultural diversity, given the history of customs and practices surrounding sharks in the Pacific and the history of shark fishing in the Indian Ocean’.Footnote ²²

Following the approach of transnational environmental legal research, Techera's study extends beyond formal, black-letter fisheries rules to consider non-consumptive shark-related policies, including those pertaining to marine tourism and human safety, as well as the issues of implementation, compliance, and enforcement that are crucial to the actual impact of a given management approach. Although Techera takes comfort in the fact that ‘concern for sharks is becoming more widespread’, she acknowledges that the effectiveness of protective policies is still very much in doubt: ‘paper parks and unenforced protection’, she cautions, ‘are of little value’.Footnote ²³ Thus subsequent research and policy work must continue to examine the relationship between cultural values and their enhancement of or derogation from conservation objectives.