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Extraterritoriality and Climate Change Jurisdiction: Exploring EU Climate Protection under International Law

Natalie L. Dobson

ISBN13: 9781509951086

Published: March 2023

Publisher: Hart Publishing

Country of Publication: UK

Format: Paperback (Hardback in 2021)

Price: £41.99

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Hardback edition , ISBN13 9781509935826

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This book builds on the scholarship of the law of state jurisdiction, engaging with fundamental questions about states' legislative competence, to respond to climate change. Considering general theory, the author advocates for a systemic analytical framework for the contested issue of 'extraterritoriality' in international law.

Exploring the crystallisation of 'climate change jurisdiction', the book provides a comprehensive exploration of the jurisdictional bases and limitations for unilateral climate protection measures. In doing so, cross-cutting issues of world trade law, international civil aviation law, the law of the sea, and importantly, the customary international law of state jurisdiction are considered.

Amidst the myriad of developing norms, a novel 'considerate design' tool is introduced to assist policymakers in finding a better balance between regulatory autonomy, development needs and the protection of common concerns.

Subjects:: Environmental Law, EU Law

Contents:: 1. Introduction; 1. Introductory Remarks: The Dilemma of Ambitious Unilateral Climate Protection; 2. Focus of this Study: The EU as a Provocative Climate Leader; 3. Conceptual Parameters: Unilateral Jurisdiction and 'Extraterritoriality'; 4. Structure and Approach of this Book; PART I. REGULATING TO PROTECT THE GLOBAL CLIMATE: OBLIGATIONS AND RIGHTS; 2. The Obligation to Regulate: The Open International Legal Framework for Climate Protection; 1. Introduction; 2. An Imperative to Act: Climate Change as a 'Common Concern of Humankind'; 3. The Open International Legal Framework for Climate Protection; 4. Conclusion; 3. The Right to Regulate: Jurisdiction and Extraterritoriality in Theory and Practice; 1. Introduction; 2. Unilateral Jurisdiction; 3. Types and Bases of Jurisdiction; 4. 'Extraterritoriality' and the Law of State Jurisdiction; 5. Extraterritoriality in Practice: The EU's Ambitious Climate Policy; 6. Conclusion; PART II. JURISDICTIONAL BASES AND LIMITATIONS IN LEX SPECIALIS REGIMES; 4. Regulating Emissions from Foreign Production Processes under WTO Law; 1. Introduction; 2. Locating the 'Extraterritorial Element' in a Trade Law Context: Foreign Production Process Requirements; 3. Non-discrimination and the Foreign Carbon Footprint: A De Facto Limitation; 4. Justifying Prima Facie Violations: An Implied Jurisdictional Limitation?; 5. Conclusion; 5. Regulating Emissions from International Maritime Transport under the Law of the Sea; 1. Introduction; 2. 'Extraterritoriality' and the Division of State Powers under the Law of the Sea Regime; 3. Territorial Limitations on Port State Jurisdiction in the Law of the Sea Convention?; 4. Competing Responses to International Maritime Emissions: IMO and EU Measures; 5. Conclusion; 6. Regulating Emissions from International Aviation Transport under International Civil Aviation Law; 1. Introduction; 2. Roles and Agreements under International Civil Aviation Law; 3. Limitations on Unilateral Environmental Entry Conditions under the Chicago Convention; 4. Competing Responses to International Aviation Emissions: ICAO and EU Measures; 5. Conclusion; PART III. LEX GENERALIS: THE CRYSTALLISATION OF 'CLIMATE CHANGE JURISDICTION' UNDER CUSTOMARY INTERNATIONAL LAW; 7. The Classical Principles of State Jurisdiction under Customary International Law; 1. Introduction; 2. A Legal Basis to Legislate under the Classical Jurisdictional Principles; 3. The 'Substantial Connection' Requirement; 4. Conclusion; 8. Exploring the Basis of 'Climate Change Jurisdiction' under Customary International Law; 1. Introduction; 2. Relationships between the Classical Principles in the Context of Climate Change; 3. The Territorial Presence of Goods and Services Creating the Carbon Footprint; 4. The Effects-Doctrine and Environmental Harm; 5. The Protective Principle and Climate Change as a Threat to Vital State Interests; 6. The Universality Principle and Climate Change as a Common Concern of Humankind; 7. Conclusions: Constructing the Substantial Connection Requirement in the Context of Climate Change; PART IV. JURISDICTIONAL LIMITATIONS AND 'CONSIDERATE DESIGN'; 9. Jurisdictional Limitations: The 'Considerate Design' Approach; 1. Introduction; 2. Jurisdictional Limitations as a Second-Order Inquiry; 3. The Sources of Jurisdictional Restraint: Custom, Comity and General Principles; 4. Exploring the Conditions on Jurisdictional Design under International Law; 5. Proposed Regulatory Tool: The 'Considerate Design' Approach; 6. Conclusion; 10. Applying the 'Considerate Design' Approach: Opportunities and Challenges; 1. Introduction; 2. Considerate Design and Jurisdictional Restraint: Respect for Competing Standards; 3. Considerate Design and Equity: Common but Differentiated Responsibilities and Respective Capabilities; 4. Conclusion; 11. Concluding Remarks