19. The protection of the environment

2019 ◽  
pp. 494-524
Author(s):  
Gleider Hernández
Keyword(s):  
Environmental Law ◽  
Significant Proportion ◽  
Case Law ◽  
Soft Law ◽  
Due Diligence ◽  
Dense Network ◽  
International Environmental Law ◽  
Customary International Law ◽  
Significant Damage ◽  
Conservation Of Endangered Species

This chapter studies the development of international environmental law. A significant proportion of international environmental law obligations is contained in treaties, which often provide for institutional mechanisms or procedural obligations for their implementation. There exists a dense network of treaty obligations relating to environmental protection, and to specific sectors such as climate change, the conservation of endangered species, or the handling of toxic materials. Indeed, though customary international law knows of no general legal obligation to protect and preserve the environment, certain customary rules nevertheless have been found in specific treaties, case law, and occasionally even soft law instruments. The most significant such rule is the principles of prevention, often taking the form of the ‘good neighbour’ principle. States are required to exercise due diligence in preventing their territory from being used in such a way so as to cause significant damage to the environment of another state.

Part IV Normative Development, Ch.23 Customary International Law and the Environment

2021 ◽  
Author(s):  
Dupuy Pierre-Marie ◽  
Le Moli Ginevra ◽  
Viñuales Jorge E
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
Environmental Agreements ◽  
International Environmental Law ◽  
Customary International Law ◽  
Normative Development ◽  
Environmental Norms ◽  
Environmental Interests

This chapter highlights how, despite the large number of environmental agreements at all levels, the role of customary international law remains key in practice. First, many treaties in force remain largely unimplemented. Secondly, treaties only bind those states parties to them, and that introduces sometimes important variations in the scope of environmental agreements. Thirdly, there is at present no treaty formulating binding overarching principles interweaving sectorial environmental agreements. As a result, it is often necessary to revert to customary norms when difficulties of interpretation or implementation arise. Fourthly, custom is important to mediate between a range of environmental and non-environmental interests governed by different treaties. Finally, custom plays an important role in disputes concerning a disputed area or where there is no applicable treaty. The chapter then analyses the process of custom formation with reference to environmental norms in order to show both the ‘banality’ and the peculiarities of this process. It also looks at the content of customary international environmental law as recognized in the case law.

Part III Conceptual Pillars, Ch.16 Harm Prevention

2021 ◽  
Author(s):  
Brunnée Jutta
Keyword(s):  
Environmental Law ◽  
Environmental Harm ◽  
Due Diligence ◽  
International Environmental Law ◽  
Significant Harm ◽  
Actual Harm ◽  
The Face ◽  
Harm Prevention ◽  
The Relationship

This chapter addresses how international environmental law originates from and revolves around the harm prevention rule. It focuses on three points of contention, each related to the role of due diligence in harm prevention, and each highlighted by recent judicial engagements with the harm prevention rule. First, it is generally accepted that a state's obligation to prevent environmental harm is not absolute, but requires due diligence in the face of risk of significant harm. However, it is unclear whether a failure to act diligently to avert harm on its own—absent actual harm—can amount to a breach of the harm prevention rule. Second, the relationship between the procedural and substantive dimensions of the harm prevention rule remains ambiguous. Third, there is some uncertainty as to where the line runs between the harm prevention obligation and the precautionary principle, given the focus of both notions on risk. These inter-related conceptual questions affect the harm prevention rule's function as a reference point for international environmental law.

Part IX International Environmental Law in National/Regional Courts, Ch.64 India, Bangladesh, and Pakistan

2021 ◽  
Author(s):  
Ghosh Shibani
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
Final Outcome ◽  
International Environmental Law ◽  
Substantive Content ◽  
Judicial Reasoning

This chapter focuses on international environmental law (IEL) in the courts of India, Bangladesh, and Pakistan. Review of the case law reveals that Indian courts have led the adoption of the IEL principles in this region, with occasional references to IEL by Bangladeshi and Pakistani courts. This appears to follow the trend of non-environmental cases, where also the Bangladeshi and Pakistani judiciary is more reluctant than the Indian courts to turn to international law. Although courts in the three countries have engaged with IEL, it has mostly been at a superficial level. Their reliance on IEL is not always accompanied by strong judicial reasoning, making it difficult to determine their content and scope, and even their relevance in particular scenarios. Given development imperatives in these countries, courts are often faced with the ‘economy/development versus environment’ question. In such situations, the courts rely on IEL in an instrumental fashion in support of the final outcome of the case, rather than engaging with the substantive content of the IEL principle.

Formality and Informality

2008 ◽  
Author(s):  
Stephen J. Toope
Keyword(s):  
International Law ◽  
Common Core ◽  
Environmental Law ◽  
Soft Law ◽  
International Environmental Law ◽  
Central Focus ◽  
Law And Politics ◽  
The Common ◽  
Contested Terrain ◽  
No Man's Land

This article explores contested terrain in the no-man's land between international law and politics – the work of ‘norms’ in social, including legal, change. International environmental law has served as the crucible for much of the theoretical debate, and a central focus of this debate has been on the effectiveness of various types of formal norms and informal norms. The common core of the concept of ‘norm’ is that the desideratum contained in the norm is intended to influence human behaviour. Since norms operate in many different ways, they relate to the concepts of formality and informality differentially as well. Norms can be formal rules of law, but they can also be informal social guides to proper conduct. More surprisingly, they can be informal and precise as well as informal and vague; formal and precise as well as formal and vague. This article concludes by tying together the theoretical insights traced out earlier in the light of ‘soft law’ discourse in international environmental law.

Part III Regimes and Doctrines, Ch.39 Theorizing International Environmental Law

2016 ◽  
Author(s):  
Humphreys Stephen ◽  
Otomo Yoriko
Keyword(s):  
Climate Change ◽  
Environmental Law ◽  
Soft Law ◽  
Species Extinction ◽  
International Environmental Law ◽  
Theoretical Perspectives

This chapter opens up some new theoretical perspectives on environmental law, which has surprisingly been subjected to little theoretical speculation. International environmental law is generally characterized as quintessential ‘soft law’: general principles and aspirational treaties with weak or exhortatory compliance mechanisms, often dependent on other disciplines altogether—science and economics—for direction and legitimacy. At the same time, the problems it is called upon to deal with are immense, frequently catastrophic, and global in nature: climate change, species extinction, increasing desert, disappearing rainforest. To rectify this, the chapter delves into a question of terminology—why ‘international environmental law’?—before exploring its Romantic and colonial origins and concluding with how international environmental law’s origins in the confluence of the Romantic and the colonial explains the apparent mismatch between its ambitious stated objectives and its muted regulatory provisions—and how this tension continues to inform its functioning today.

scholarly journals The Environmental Jurisprudence of the International Tribunal for the Law of the Sea

2007 ◽  
Vol 22 (3) ◽  
pp. 369-381 ◽  
Author(s):  
Alan Boyle
Keyword(s):  
Dispute Settlement ◽  
Environmental Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Settlement System ◽  
International Environmental Law ◽  
Environmental Disputes ◽  
Dispute Settlement System ◽  
Marine Environmental ◽  
Environmental Jurisprudence

AbstractThis presentation starts out with an overview of the environmental jurisprudence of international tribunals and courts in the last decade. The author then examines the jurisprudence of the ITLOS and considers four issues that have arisen: the precautionary principle; environmental impact assessment; environmental co-operation; and jurisdiction over marine environmental disputes. Concluding, he asks what the jurisprudence tells us about the Tribunal's role in the LOSC dispute settlement system. First, the Tribunal's provisional measures cases have established the utility of the Article 290 procedure as a means of protecting the rights of other States but also the marine environment in general. Second, there is evidence in the case law of a desire to settle disputes between the parties in a way that contributes to the development of a consistent jurisprudence and of a willingness to interpret and apply Part XII of the Convention in accordance with the contemporary state of international environmental law. The Tribunal's record on marine environmental disputes is a positive one.

From Autonomy to Integration? International Law, Free Trade and the Environment

2008 ◽  
Vol 77 (3) ◽  
pp. 253-273 ◽  
Author(s):  
Michael Mehling ◽  
Anja Lindroos
Keyword(s):  
International Law ◽  
Environmental Law ◽  
Case Law ◽  
International Environmental Law ◽  
International Treaty ◽  
Trade Law ◽  
International Trade Law ◽  
Trade And The Environment ◽  
Relationship Of ◽  
The Relationship

AbstractOur current understanding of so-called “self-contained regimes” is based on an overly simplistic appreciation of how such regimes interact with each other and with the larger body of international law. Drawing on an analysis of WTO case law, this article highlights two distinct normative relations, addressing the relationship of international trade law vis-à-vis general international law and international environmental law. As the analysis reveals, further differentiation of normative relationships is needed to better understand how such seemingly independent regimes operate in a fragmented legal system. It also shows that a recently proposed interpretative tool, systemic integration, raises new questions and challenges traditional conceptions of international treaty law.

Freiraum oder Herrschaftsgebiet

2019 ◽  
Author(s):  
Thilo Goeble
Keyword(s):  
International Law ◽  
Freedom Of Expression ◽  
Environmental Law ◽  
Case Law ◽  
The Internet ◽  
Council Of Europe ◽  
Human Right ◽  
International Environmental Law ◽  
Detailed Evaluation ◽  
Legal Barriers

In this book, the author discusses the questions of whether and how international legal barriers already limit the power of states on the Internet today and what these might look like in the future. In particular, he focuses on access to the Internet being a human right. One focus is freedom of expression and information at the level of the United Nations and the Council of Europe, which are examined from the perspective of various dimensions of intervention. For this purpose, a detailed evaluation of the existing documents and case law in this respect is carried out. Subsequently, the author provides his own proposal for access to the Internet being a human right de lege ferenda. Due to the qualification of the Internet as an international (super)space, international legal barriers, which arise in particular from the area of international environmental law, the rules of international relations and humanitarian international law, are also examined with regard to their transferability.

International Environmental Law and Community Interests

2018 ◽  
Author(s):  
Jutta Brunnée
Keyword(s):  
Preventive Measures ◽  
Environmental Law ◽  
Standard Setting ◽  
Environmental Harm ◽  
Due Diligence ◽  
International Environmental Law ◽  
Strong Emphasis

Strong procedural elements are indispensable for international environmental law’s capacity to serve community interests. Procedural obligations can strengthen the rule concerning the prevention of environmental harm and flesh out its due diligence standard. Procedural obligations can also serve useful purposes when states, or judges, are reluctant to entertain substantive arguments, or find it difficult to establish that environmental harm has been caused. Violations of procedural obligations are more easily established and states can sometimes be prompted to correct harmful conduct or to take more effective preventive measures. Unfortunately, the operation of procedural rules is constrained by the dearth of practice and the continued struggle to define the substance of community obligations and the legal effects of erga omnes norms. Treaty-based approaches have proven better suited to accommodating community concerns, perhaps because they place such strong emphasis on procedural elements and employ increasingly diverse formal lawmaking and informal standard-setting approaches.

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