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PIL WEEK 10 - X. International environmental Law, ANJ NOTES - Coggle…
PIL WEEK 10 - X. International environmental Law
A. Principles
B. Climate Change
C. Biodiversity
D. Marine Environment
Principle 21 of Stockholm Declaration
Precautionary principle (Rio 15
) - Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Concept of Precaution
- A strategy to address risk, refers to the manner in which policymakers, for the purposes of protecting the environment, apply science, technology and economics
Effect of Principle
- It lowers the standard of proof of risk. Sufficient that there is SOME EVIDENCE, even if there is uncertainty of a risk of serious or irreversible harm.
Enforcement (Birnie)
- It requires that once environmental damage is threatened action should be taken to control or abate possible environmental interference even though there may still be scientific uncertainty as to the effects of the activities. This refers to a state's duty to regulate and control.
Importance
- Brings existing rules of international law on control of environmental risk/conservation at an earlier stage i.e., before definitive proof of risk. Sufficient that there is evidence that the harm is possible.
Legal Status (Birnie, p. 160)
- Considered as a rule of customary international law. However, international courts and tribunals have been reluctant to accept explicitly that the PP has a customary international law status, .
a. Right to permanent sovereignty over natural resources
b. Sic utere tuo principle - International law does not allow states to conduct or permit activities within their territories, or in common spaces, without regard for the rights of other states or for the protection of the global environment. This can be subvidided into two rules, namely prevention and cooperation.[BIRNIE, p. 137]
Prevention
- States have a duty to prevent, reduce, and control transboundary pollution and environmental harm resulting from activities within their jurisdiction or control.
Cooperation
- States also have the duty to cooperate in mitigating transboundary environmental risks and emergencies, through notification, consultation, negotiation, and in appropriate cases, environmental impact assessment.
Legal Status - Considered an obligatory rule of customary international law.
Transboundary Harm
- harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border. [APTH, Art. 2]
Element of Risk - Contemplates only The third criterion is that activities covered in these
articles must involve a “risk of causing significant transboundary harm”. The term is defined in article 2 (see the commentary to article 2). The words “transboundary harm” are intended to exclude activities which cause harm only in the territory of the State within which the activity is undertaken without the possibility of any harm to any other State. For discussion of the term “significant”, see the commentary to article 2.
Principle 21
. States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
IEL Principles
- less settled, not as clear as IHL if customary law.
Precautionary Principle
- different permutations. Ultimate purpose is to make greater allowance for uncertainty in the regulation of environmental risk and the sustainable use of natural resources. (Birnie 136)
Strands of Precautionary
-
Principle 15 Rio
- Threats of serious and irreversible damage, act right away.
Precautionary Approach
- Precaution to wait/not act.
Res Ipsa
- applicable by analogy, some evidence to trigger res ipsa. Once triggered, it substitutes the proof required for cause of damage.
Importance
- Allows rules of environmental law to be triggered at an earlier stage than before. For environmental damage, difficult to prove causation.
Treaties - Principle reflects CBD and UNFCC.
Scientific Uncertainty
- Generally applied when there is some evidence of risk, no need for full scientific certainty.
Sustainable Development
- development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
Jurisprudence
- Gabcikovo recognized this, need to reconcile economic development with protection of the environment.
Argument that not environmental, but economic principle.
Obligations - Contains substantive and procedural
elements.
Substantive - RIO 3-8
Procedural - RIO 10-17.
Torts Analogy- Sustainable development an umbrella concept, covering many different obligations.
Rationale (Rio 1) -
Anthropocentric, human beings center of development.
Principle 4 - a principle of general international law --
Integration - Integrate environment in developmental plans.
Legal Status
- Customary international law.Thus, applies to both autonomous activities and activities in the interpretation of specific treaties.
Casis - By nature, not customary due to multiple elements. But, regardless a policy that can influence outcome of cases, interpretation of cases, etc., may be used to break impasse in policy.
Polluter Pays principle
- Not a rule, more a general guideline. Essentially, programmatic and hortatory. (Non-Binding)
Sic Utere Tuo Principle (Stockholm 21 & Rio 2)
- General obligation of states to ensure that activities in their jurisdiction and control respect the environment of other states.
Scope
- Obligation to not cause damage. Imposes responsibility on states re: activities within their jurisdiction and control.
Principle 2
- Not an absolute prohibition on environmental damage, neither is it an absolute allowance to exploit resources. Balancing act.
Sovereign Right to Exploit
- States can decide whatever they want to do with natural resources int heir territory/jurisdiction/control.
UNCLOS
- Different wording, here limits the damage to pollution as specifically defined by UNCLOS. Sufficient that does not SPREAD the pollution NOT does not cause damage.
CBD
Transboundary Harm - Activity must be connected to exploitation of natural resources.a
Customary Norm (Threat of Nuclear)
- Ensures that activities within their jurisdiction and control to RESPECT the environment of other stares or of areas beyond their jurisdiction.
Here, advantageous, no limitation as regards harm. But, weaker only obligation to respect, not obligation to prevent damage.
IHRL
- IHRL provisions on armed conlcit and protection of environment similar here, states must take environmetnal consideraitons in military objectives.
Transboundary Harm (APTH 2)
- harm caused in the territory of or in other places under the jurisdiction of a state OTHER than the state of origin.
Obligation (APTH 3)
- State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.
Problem of Movement
- for transboundary harm, there must be a movement of harm from one state to another. Thus, if animals migrate from state of origin to another causing harm, questionable if tarnsboundary harm.
Erga Omnes
- Obligation to prevent, reduce and control environmental harm is erga omnes. Q. if this covers transboundary harm as erga omnes.
Requirement of EIA
- States are required to enter into an environmental impact assessment before exploiting. This is customary.
Due Diligence
- most environmental treaties are only due diligence treaties. Only exception is damage caused by nuclear materials which is strict liability.
Best Technique
- Due diligence imposes evolving standard of technology and regulation. best available technique/practice/practicable means to prevent environmental damage.
Common but Differentiated Responsibilities
- Common responsibility, but higher standards of conduct imposed on developed states. Principle is developed states contributed the most to causing problems + greater capacity to respond.
Commonly paired with equity
Developing Countries
- determined by per capita status. Thus, China not considered as developing.
Common Concern of Human Kind
- Indicates a legal status both for climate change and biological resources which is distinct from the common concepts of permanent sovereignty, common property, shared resources or common heritage.
Scope
- change in the Earth's climate is a common concern of humankind. Applied also to biological diversity.
Common Property / Common Heritage
Impact
- Gives intentional communities of state legitimate interest in resources of global significant and a common responsibility to assist in their sustainable development.
Sir says creates erga omnes obligaiton, no need to prove damage
Instruments
-
UNFCCC
- Not a law of the atmosphere, unlike UNCLOS. Instead, a framework convention giving the general goal & process for reaching future agreement. Preparatory documents.
Legal Status (UNFCCC 4)
- Treaty so pacta sunt servanda. Binding commitments also.
Develop prediocally update, publish and make available the national inventories of anthropogenic emissions.
Adaptation - reigonale progrrames containing measures to mitigate cliamte change
Sustainable Development
Paris Agreement -
Biodiversity Convention
- Multiple goals. Conserve biodiversity, sustainable use of its components and the fair and equitable sharing of benefits.
Biological Resources
- Includes genetic resources. So long as with actual or potential use or value for humanity.
Sustainable Use
- Use of components of biological diversity so long as it does not lead to a long term decline of biological diversity.
Q. Would bio-tech developments change scope of biodiversity obligations re: sustainable use?
- If CRISPR allows reproduction of mammoths, then no risk to long term decline of biological diversity since you just bring them back.
Since CBDR 8 can be argued as non-binding.
Scope -
Obligation to Cooperate (CBD 5)
- Each contracting party shall as far as possible, cooperate in areas beyond national jurisdiction and on other matters of mutual intersect for the conservation and sustainable use of biological diversity.
General Measures (CBD 6)
- Limits obligations to sufficient resources i.e., less for less fortunate states.
In Situ Conservation (CBD 8)
- Protect, as far as possible, regulate or manage biological resources important for the conservation of biological diversity.
As far as Possible
- no excuse for compliance, but only comply within ability as far as possible for their economy.
Ex-Situ Conservation (CBD 9)
- protecting endangered species in a different location. However, in-situ is always preferred. Ex-situ is predominantly for the purpose of complementing in-situ measures.
EIA CBD 14
- conventional requirement for use of environmental impact assessments. Sir says this is more specific than the customary rule on EIA.
Relationship with Other Conventions (CBD 22)
GR - Other agreements.
XCPN - when there is serious damage or threat to biological diversity.
Alternative Formulation
- CBD is not intended to supersede other intenraitonal agreements. Does not say lex specialis i.e., concurrently applicable. So long as there is issue to serious damage or threat to biological diversity.
Marine Environment Conventions
-
GR - Biodiversity
XCPN - If marine, then law of the sea.
Q. What if the issue involves exercise of rights that cause serious damage or threat to biological diversity in the marine environment? - CBD or Law of the Sea?
UNCLOS Changes
-
Pollution
- no longer regarded as an implicit freedom of the high seas. Under UNCLOS, no longer part of the freedom of the high seas.Instead, prohibited.
Liability
- Emphasis no longer on polluter pays, but collectiive responsibiltiy.
EEZ Provisions
Allowable Catch
Protection on Marine Environment (192) -
STATES have the obligation to protect and preserve the marine environment.
Limitation of Sovereign Rights -States exercise sovereign rights toe xplot subject to duty to protect marine environment.
Marine Environment - Extends to marine environment in entirety, even to the high seas. Q. If erga omnes obligaiton
Pollution (194.1) - States have duty, individually or jointly all measures consistent with UNCLOS as necessary to prevent, reduce and control pollution from ANY Source.
Duty to not Transfer (195) - Duty to not transfer, directly or indirectly damage or hazards from one area to another or, duty to not transform one type of pollution into another.
UNCLOS 196 - Reduce and control poll
ANJ NOTES
balancing act
Polluter pays principle - not so much a rule as a general guideline; non-binding
binding: duty to prevent transboundary harm; activities within their jurisdiction and control should respect the environment of other states
ensrhined in Principle 21 - Stockholm Declaration
principle 2 - not an absolute prohibition/envi damage; requires integration or accomodation; transboundary harm -- right to exploit natural resources
Prominent SOvereignty OVer Natural Resources - right to exploit; states may decide whatever they want; ; qualification: do not cause transboundary harm
duty to prevent transboundary harm is limited ; unclos -- marine envi, limits damage to pollution
advantage: nor paired with sovereignty; no limitation in legality; customary law is weaker though and it does not obligate states not to cause damage
transboundary harm: Art. 3 --> appropriate, must prevent, transboundary harm must be significant
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