20. The Protection of the Environment

2020 ◽  
pp. 454-489
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Climate Change ◽  
Environmental Impact ◽  
Impact Assessment ◽  
Environmental Law ◽  
Civil Liability ◽  
Environmental Harm ◽  
State Responsibility ◽  
International Environmental Law ◽  
Customary International Law ◽  
Law Making

This chapter focuses on international environmental law. First, it covers certain old precedents and then examines the emergence and consolidation of environmental principles between 1972 and 2020, with particular attention to the emergence of customary international law norms (prevention, co-operation, environmental impact assessment) in this area. Secondly, it surveys the substance of international environmental law, focusing on climate change as a prominent illustration of law-making in this field, and examining compliance procedures, as developed since the end of the 1980s. Thirdly, it discusses the operation of State responsibility and civil liability mechanisms for environmental harm.

scholarly journals Polluter Pays Principle Terkait Pertanggungjawaban Corporate PTTEP Australasia Terhadap Pencemaran Minyak Di Laut Timur Indonesia

2021 ◽  
Vol 2 (2) ◽  
pp. 189-209
Author(s):  
Annisah Dian Utami Panjaitan ◽  
Novianti Novianti ◽  
Mochammad Farisi
Keyword(s):  
Environmental Pollution ◽  
Environmental Law ◽  
Civil Liability ◽  
Class Action ◽  
The State ◽  
State Responsibility ◽  
International Environmental Law ◽  
Advantages And Disadvantages ◽  
Liability Law ◽  
Polluter Pays Principle

This research is aimed to analyze and determine the 16th provision principle of the declaration on environment and development, namely the polluter pays principle, as one of the state’s form of accountability towards the polluting across borders between PTTEP Australia and Indonesia. This is a juridical research, which analyzes the issue discussed through the use of many realted sources. The Polluter Pyas Principle, as a form of State responsibility in environmental pollution, has some advantages and disadvantages when applied as a recommendation by the OECD (Organization for Economic Cooperation and Development). From a legal perspective, this principle can be applied as a civil liability law, whereas from an economic perspective, it can be viewed as effort to control pollution by means which the polluter has an obligation to pay for the environmental pollution that he/she caused. Even so this principle also has its weakness, in an economic approach this principle is difficult to determine the determination of the cost of loss. In some countries themselves have applied this principle in handling cases of environmental pollution. In the case of cross-border environmental pollution, the principle of good neighborliness and the principle of state responsibility in dealing with pollution cases as a sign of State’s goodwill to comply with existing international law. The case of environmental pollution itself is not only the State that can sue, but a group of people or the community can also sue, if they feel harmed by the pollution that occurs. One of them is by carrying out Class Action in holding accountable for the consequences of pollution that has occurred, and is detrimental to a group or large number of people. Even though international environmental law is a soft law, it can become hard law depending on the pollution case that occurs. Even so, International Environmental Law contained in the Stockholm Declaration, Rio de Jeneiro, Civil Liability Convention and other related international arrangements have been very good in their regulatory fields. Only the state which ratifies the convention applies according to the pollution case that occurs.

If you Break it, do you own it?

2015 ◽  
Vol 6 (2) ◽  
pp. 201-246 ◽  
Author(s):  
Dinah Shelton ◽  
Isabelle Cutting
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Environmental Law ◽  
Environmental Harm ◽  
State Responsibility ◽  
Human Rights Law ◽  
International Environmental Law ◽  
Legal Obligations ◽  
Law Of Armed Conflict ◽  
The Law

This article examines the extent to which international legal obligations aimed at protecting the environment apply to military activities in peacetime and during armed conflict. The discussion draws on international environmental law, human rights law, the law of armed conflict, and the law of State responsibility in evaluating the extent to which States have a duty to prevent or mitigate environmental harm and remediate or compensate for any such damage caused by their military activities. The article also examines international law on liability for the injurious consequences of lawful activities, to assess whether this equitable doctrine supports shifting the clean-up costs of environmental harm to the acting State even when there is no breach of international law. The article concludes that international law requires measures be taken to prevent environmental harm and could support a claim for remediation or compensation where norms of international law have been breached. It also suggests the need to develop specific rules in peace treaties and status of forces or bases agreements, to address the consequences of environmental harm resulting from military activities.

IMPLICATIONS OF THE INDUS WATER KISHENGANGA ARBITRATION FOR THE INTERNATIONAL LAW OF WATERCOURSES AND THE ENVIRONMENT

2015 ◽  
Vol 64 (3) ◽  
pp. 697-715
Author(s):  
Jasmine Moussa
Keyword(s):  
Environmental Impact ◽  
Impact Assessment ◽  
International Law ◽  
Environmental Impact Assessment ◽  
Environmental Law ◽  
International Environmental Law ◽  
Treaty Interpretation ◽  
The Law ◽  
Water Treaty

AbstractOn 19 February 2013, a Permanent Court of Arbitration (PCA)-administered Court of Arbitration issued a Partial Award on the dispute between Pakistan and India regarding the use of the waters of the Kishenganga/Neelum, a tributary of the Indus system of rivers. This article examines the tribunal's decision, which was mainly limited to interpreting the 1960 Indus Water Treaty (IWT), and its contribution to international environmental law and the law of non-navigational uses of international watercourses. After briefly discussing the dispute's factual context and procedural history, the article critiques the tribunal's methodology, which was based on an inconsistent application of the principles of treaty interpretation. The Award's contribution is therefore mixed: despite its almost complete disregard for the principle of ‘equality of right’, it has contributed to clarifying the criteria for determining ‘existing uses’ of a watercourse and reaffirmed both the substantive obligation to refrain from causing transboundary harm and the procedural duty to carry out an Environmental Impact Assessment under international environmental law.

Protecting Natural Resources

2018 ◽  
Author(s):  
Jérémie Gilbert
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Natural Resources ◽  
Environmental Law ◽  
Legal Framework ◽  
Human Rights Law ◽  
International Environmental Law ◽  
Conservation Of Natural Resources ◽  
The Relationship ◽  
Do So

This chapter focuses on the connection between the international legal framework governing the conservation of natural resources and human rights law. The objective is to examine the potential synergies between international environmental law and human rights when it comes to the protection of natural resources. To do so, it concentrates on three main areas of potential convergence. It first focuses on the pollution of natural resources and analyses how human rights law offers a potential platform to seek remedies for the victims of pollution. It next concentrates on the conservation of natural resources, particularly on the interconnection between protected areas, biodiversity, and human rights law. Finally, it examines the relationship between climate change and human rights law, focusing on the role that human rights law can play in the development of the current climate change adaptation and mitigation frameworks.

Unearthing Under-Governed Territory

2018 ◽  
Author(s):  
Peter J. Stoett
Keyword(s):  
Climate Change ◽  
Criminal Law ◽  
International Organizations ◽  
Environmental Law ◽  
Environmental Crime ◽  
International Environmental Law ◽  
Mitigating Factor ◽  
Environmental Crimes

This chapter looks at whether and how international organizations and criminal law can help us deal effectively with transnational environmental crimes and, more broadly, with environmental insecurity and injustice. It explores the question of whether the climate change justice agenda can benefit from the expanded pursuit of transnational environmental crime. The chapter asks whether international environmental law, refurbished, act as a mitigating factor in climate change. It concludes that while current international legal instruments can help spur additional action, by themselves, they will prove inadequate. Consequently, one idea proposed is a new international environmental court to deter all forms of ecocide.

Mitigation and Adaptation through Environmental Impact Assessment Litigation: Rethinking the Prospect of Climate Change Litigation in China

2021 ◽  
pp. 1-27
Author(s):  
Xiangbai He
Keyword(s):  
Climate Change ◽  
Environmental Impact ◽  
Impact Assessment ◽  
Environmental Impact Assessment ◽  
Legal Framework ◽  
Special Focus ◽  
Mitigation And Adaptation ◽  
Regulatory Effects ◽  
The Government ◽  
Legal Barriers

Abstract There are two general pathways towards climate change litigation in China: tort-based litigation to hold carbon emitters accountable in civil law, and administrative litigation against the government to demand better climate regulation. While the first pathway is gaining momentum among Chinese scholars, this article argues that legal barriers to applying tort-based rules to climate change should be fairly acknowledged. The article argues that China's legal framework for environmental impact assessment (EIA) provides more openness and flexibility for the resolution of climate change disputes. Therefore, EIA-based climate lawsuits, which challenge environmental authorities for not adequately taking climate change factors into account in decision-making processes, encounter relatively fewer legal barriers, require less radical legal or institutional reform, and have greater potential to maintain existing legal orders. The regulatory effects produced by EIA-based litigation suggest that the scholarship on climate change litigation in China should take such litigation seriously because it could influence both governments and emitters in undertaking more proactive efforts. This China-based study, with a special focus on judicial practice in the largest developing country, will shine a light on China's contribution to transnational climate litigation.

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