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Restoration efforts can target very different outcomes. Simply put, restoration is a process, and diverse values and ontological dispositions can shape the why, what and how questions about what people do. Restorative inputs focused on adaptively adding complexity into an ecosystem commits to values that go beyond rehabilitating and just removing threats and harms that are disturbing an ecosystem. Restoring within a landscape to enhance its ecological complexity is a useful goal for adaptive governance, and one which will also enable discussions about how humans and legal and governance institutions can change and respond to managing the environment. Using two scenarios we briefly explore how governance approaches to restoration need ontological dispositions focused on ecological complexity. In particular, we argue in this article that a focus on inputs into ecological complexity creates not only opportunities for overall net gain, but also, and more critically, that it requires legal and governance changes that establish parameters for how the vision will be realised. We explore and briefly discuss four of these institutional challenges to chart further research trajectories for how restorative inputs into ecological complexity can be achieved. [ABSTRACT FROM AUTHOR]

The extinction of a species can provoke deep feelings of sadness, injustice, compassion and empathy for the individuals lost. In this paper we argue that law, as a governance institution, does not allow decision-makers the use of emotions such as compassion or empathy, when making decisions relevant to the possible extinction of species, despite evidence to suggest that such emotions elevate the importance of moral concerns, and so may be utilised to halt the extinction process. Further, we argue that law can impact our ability to feel compassion and empathy for species heading towards extinction, as it creates a narrative of apathy. This is particularly exacerbated when it comes to the potential extinction of invertebrates, whose needs and interests are often already subject to people's negative emotional pre-dispositions. By analysing the recent legal decisions surrounding the approval of the Yeelirrie Uranium mine in Western Australia, we highlight the nature of this problem and what it means for the conservation of invertebrate species, and argue that environmental law's commitment to utilitarian and rational traditions will continue to challenge how we react to, and allow, the extinction of invertebrate. [ABSTRACT FROM AUTHOR]

The extinction of species and ecological systems is occurring more quickly than any other time in human history. Our social and cultural institutions and the concepts and framings that underpin them are key contributors to modern extinctions. In this paper we ask how engaging explicitly with extinction enables a critical and hopeful rethinking of environmental law. We explore the potential of this question by summarising and categorising the literature that discusses how extinction provides a useful frame and moral compass for interrogating environmental law rules, systems and ambitions. Through an evaluation of biodiversity-related multilateral environmental agreements we illustrate the potential of our approach. We demonstrate that if law is to effectively address mass extinction then we need to also interrogate the values and worldviews perpetuated by existing and potential future legal instruments. Drawing on the papers from this special issue we argue that there is much scope for scholarship to develop critical and hopeful approaches for environmental law to address the ecological, social and ethical challenges of extinction. [ABSTRACT FROM AUTHOR]

Environmental law is ontologically committed to competition. This is evidenced by its use of framing concepts like sustainability which assume that landscapes have always had the carrying capacity to regenerate on their own. The Anthropocene, if anything, points to the deep entanglements that exist in nature and for human beings. Whilst competition explains evolutionary trends, there is much evidence pointing to the idea that cooperation and symbiosis amongst living things is a much better indicator of long-term change in the natural environment. Deep entanglements are better supported through cooperation than competition. Drawing on ideas from scientific research on symbiosis, this paper argues that environmental law is missing deep ontological commitments to cooperation between human beings and the natural world. Restoration, approached not just as a technical rules-based response to damage and degradation, but as an activity requiring cooperation with the natural world would potentially better support flourishing socio-ecological landscapes. [ABSTRACT FROM AUTHOR]

The investor-state dispute-settlement (ISDS) system has been suffering from a crisis of legitimacy caused by the perception that there is a bias in the system in favor of investors. The solution offered by this Article is an increase in the use of deference to the policy choices and public interests of sovereign states, thereby ensuring that the system is viewed as providing a fair service to parties. In the context of ISDS, scholars have mostly explained deference as a limitation on the level of scrutiny an investment tribunal can apply to states' public policy choices. In current arbitral practice, consideration of the specific circumstances of a case is commonly restricted to an assessment of the host states' conduct or policies that purportedly violate investors' treaty rights. However, this Article argues that the exercise of appropriate deference is the better standard. Appropriate deference requires tribunals to take into account the role of the foreign investors in the dispute, particularly where little due diligence was done or when there is evidence of serious misconduct by the investors. Focusing on the role of foreign investors enables a more nuanced examination of the issues before an investment tribunal. It creates a pathway for tribunals to give sovereign host states and their policy choices more credibility and support. Thinking about deference should continue to become important for the functioning of the ISDS system, since without it perceptions of bias can exacerbate the legitimacy crisis within the system. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusess topics within the issue including ecological restoration; environmental protection; and environmental law.

Investment arbitration is plagued with a backlash from states, potentially leading to a crisis of legitimacy in the investor-state system as a whole. This has arisen primarily from states not being able to enact public policy to pursue their agendas without having to provide substantial compensation to investors. In developing countries, expropriation has been direct and indirect; however, developed countries are also facing problems as they enact socially and ecologically progressive legislation that is seen as indirectly expropriating foreign investors' assets. The recent case of Yukos suggests that arbitration panels are not deterred by the size of investors' claims and are willing to rule in favor of them accordingly. This article argues that recent cases related to indirect expropriation have not settled on the test that should be used, even though they have maneuvered towards a more conciliatory approach that takes into account both the sole effect of the legislation and its purpose. The problem herein lies in the tribunals relying on abstract and open-textured norms in investment arbitration treaties that enable the enactment of real politics in favor of the sole effects test. Understanding the contribution that doctrine makes in creating uncertainty and ambiguity is an important step for arbitration because it encourages states to (1) negotiate and develop more specific rules and (2) determine which rules address their concerns about what "public interest" is in favor of certain states wanting to indirectly expropriate property. Tribunals rarely consider the legitimacy and value of the public interest for which the state enacted policy and legislative measures. As this article argues, this doctrinal uncertainty in relation to indirect expropriation is an issue for the ongoing legitimacy problems in investment arbitration, despite attempts to procedurally reform the system to avoid impressions of bias. [ABSTRACT FROM AUTHOR]

The United Nations Decade of Ecosystem Restoration is an opportunity for States to advance the development of substantive and qualitative international law obligations for conducting restoration activities. This will help countries move beyond the more quantitative target‐driven approach that currently focuses international commitments on the percentage of degraded areas that have to be restored. In this paper, we argue for two pathways for States to accelerate and pursue international obligations to undertake ecological restoration. Firstly, we advocate for the development of a new international legal principle on ecological restoration, adding to existing international environmental law principles such as the prevention principle, and aiming at achieving the highest level of recovery possible. Secondly, we advocate to utilize available mechanisms through the 1992 Convention on Biological Diversity and create a new protocol that will spell out a high ambition level for ecological restoration and a legal basis for adopting generally accepted rules and standards for restoration. The voluntary SER Principles and Standards can play an important role in the development of the legal principle on ecological restoration and standards of best practice. [ABSTRACT FROM AUTHOR]

The United Nations Decade of Ecosystem Restoration is an opportunity for States to advance the development of substantive and qualitative international law obligations for conducting restoration activities. This will help countries move beyond the more quantitative target‐driven approach that currently focuses international commitments on the percentage of degraded areas that have to be restored. In this paper, we argue for two pathways for States to accelerate and pursue international obligations to undertake ecological restoration. Firstly, we advocate for the development of a new international legal principle on ecological restoration, adding to existing international environmental law principles such as the prevention principle, and aiming at achieving the highest level of recovery possible. Secondly, we advocate to utilize available mechanisms through the 1992 Convention on Biological Diversity and create a new protocol that will spell out a high ambition level for ecological restoration and a legal basis for adopting generally accepted rules and standards for restoration. The voluntary SER Principles and Standards can play an important role in the development of the legal principle on ecological restoration and standards of best practice. [ABSTRACT FROM AUTHOR]

Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature's novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an 'environmental person'). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive 'development'. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or 'First Law', in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, the ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an 'ancestral person' as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue. [ABSTRACT FROM AUTHOR]