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.

Locating Nature: Making and Unmaking International Law

2014 ◽  
Vol 27 (3) ◽  
pp. 573-593 ◽  
Author(s):  
USHA NATARAJAN ◽  
KISHAN KHODAY
Keyword(s):  
Human Rights ◽  
International Law ◽  
Environmental Degradation ◽  
Environmental Law ◽  
Environmental Issues ◽  
Environmental Harm ◽  
International Environmental Law ◽  
Wealth Generation ◽  
The Relationship

AbstractThis article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. Through tracing the co-evolution of these assumptions about nature alongside seminal disciplinary concepts, it becomes evident that such understandings are central to shaping international law and that the discipline helps universalize and normalize them. By comprehending more broadly the relationship between nature and international law, it is possible to see beyond law's potential to correct environmental harm and identify the disciplinary role in driving ecological degradation. Venturing beyond the purview of international environmental lawyers, this article considers the role of all international lawyers in augmenting and mitigating ecological crises. It concludes that disciplinary solutions to environmental problems require radical departures from existing disciplinary tenets, necessitating new formulations that encapsulate rich and diverse understandings of nature.

Conclusion

2021 ◽  
pp. 261-270
Author(s):  
Arden Rowell ◽  
Kenworthey Bilz
Keyword(s):  
Environmental Law ◽  
Building Blocks ◽  
Psychological Research ◽  
Environmental Harm ◽  
Environmental Laws ◽  
Policy Makers ◽  
Psychological Analysis ◽  
Law And Psychology ◽  
The Relationship

Throughout this book, we have sought to identify what we see as the basic building blocks for environmental law and psychology, and for applying a psychological analysis to specific environmental laws. To that end, we have identified key ways we believe that psychological research can help in understanding and predicting why, when, and how people think about and respond to environmental harm. We have also argued that a psychological approach to environmental law and policy, which takes account of this research, can help the law more effectively shape human behavior to desired ends—whatever those ends might be. This conclusion flags a set of questions, projects, and data needs that could help policy makers and attorneys to even better understand and predict the impacts of environmental law as well as develop more effective (and in some cases cheaper) environmental laws and regulations. This includes the possibility of using law to debias; the relationship between politics and the psychology of environmental law; how environmental law might be updated in light of psychological analysis; and the role of the ongoing COVID-19 pandemic within environmental law and psychology.

Locating Nature: Making and Unmaking International Law: Introduction

2014 ◽  
Vol 27 (3) ◽  
pp. 571-572 ◽  
Author(s):  
KISHAN KHODAY ◽  
VANESSA LAMB ◽  
TYLER MCCREARY ◽  
KARIN MICKELSON ◽  
USHA NATARAJAN ◽  
...  
Keyword(s):  
Human Rights ◽  
International Law ◽  
Environmental Law ◽  
Sustainable Livelihoods ◽  
Environmental Issues ◽  
Environmental Harm ◽  
International Environmental Law ◽  
Behavioural Patterns ◽  
The World

Environmental harm is of increasing concern to peoples and states all over the world, whether in relation to ensuring access to healthy air, water, food, and sustainable livelihoods, or coping with the diversity of challenges posed by changing climates and ecologies. While international lawyers have focused on crafting solutions to environmental problems, less attention is paid to the disciplinary role in fostering harmful and unsustainable behavioural patterns. Environmental issues are usually relegated to the specialized field of international environmental law. This project explores instead the role of nature in the general discipline, arguing that the natural environment is a determinative factor in shaping international law, and that assumptions about nature lie at the heart of disciplinary concepts such as sovereignty, development, economy, property, and human rights.

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.

scholarly journals The right to a safe environment and the Chevron case: a new piece of the puzzle on the relationship between the environment and foreign investments

2019 ◽  
Vol 1 (2) ◽  
pp. 4
Author(s):  
Giulia D’Agnone
Keyword(s):  
Environmental Law ◽  
Environmental Policies ◽  
Environmental Issue ◽  
International Environmental Law ◽  
Foreign Investments ◽  
Safe Environment ◽  
The Right ◽  
The Relationship

This work aim to analyze the relationship between the foreign investiments and the Environmental Law. For it, it is questioned about the role of the International Environmental Law, having in account that the Treaties of Investiment, both bilateral and multilateral, have only recently started to embrace the environmental issue, generally in its preambles. In that sense, it is examined the factors that contribute to this situation, as far as the role of the States in the execution of environmental policies affected by clauses contained in such treaties and of the Tribunals of Investments to whom disputes are directed.

Part I Context, Ch.7 Scholarship

2021 ◽  
Author(s):  
French and Duncan ◽  
Collins Lynda
Keyword(s):  
Environmental Law ◽  
Theory And Practice ◽  
International Environmental Law ◽  
General Theme ◽  
Key Players ◽  
The Relationship

This chapter investigates the role of international environmental law scholarship in shaping the sub-discipline, explores its limitations, and reflects on the relationship between scholarship and praxis. It begins by defining the context, content, and key players in international environmental law scholarship. The chapter then looks at major challenges in the area, including fragmentation, reactivity, under-represented voices and issues, and inter-disciplinarity. Finally, it elaborates the important dialectic between theory and practice in international environmental law, touching in particular on the role of international environmental law scholars in litigation, advocacy, and consultancy. The general theme of the chapter is that international environmental law scholarship is a rich, maturing, and increasingly diverse body of work, and yet it lacks coherency in some important respects.

Prevention in International Environmental Law and the Anticipation of Risk(s)

2017 ◽  
Author(s):  
Leslie-Anne Duvic-Paoli
Keyword(s):  
Environmental Law ◽  
Environmental Harm ◽  
Environmental Damage ◽  
International Environmental Law ◽  
Different Types ◽  
The Future ◽  
The Face ◽  
Multiple Levels

The raison d’être of international environmental law, the avoidance of the occurrence of environmental harm, dictates an anticipatory approach. At its heart is the principle of prevention which imposes an obligation on states to exercise due care in the face of risks of environmental damage. This chapter presents prevention as a multifaceted norm that operates at multiple levels in order to best anticipate different types of risks. It analyses prevention from three different perspectives. First, it identifies its material scope by detailing the different categories of risks which are covered by prevention. Second, it looks at the temporal scope of prevention and highlights the multiple conceptions of the future found in the principle. Finally, it presents the potential beneficiaries of the preventive rationale to explain how it aims to shape the future of different audiences. The chapter concludes on the challenges brought about by the multifaceted nature of prevention.

scholarly journals The Limitations on Military Activities by Third States in the EEZ Resulting from Environmental Law

2019 ◽  
Vol 34 (1) ◽  
pp. 144-165
Author(s):  
Pascale Ricard
Keyword(s):  
Environmental Impact ◽  
Marine Environment ◽  
Environmental Law ◽  
Marine Resources ◽  
Due Diligence ◽  
International Environmental Law ◽  
Environmental Preservation ◽  
Environmental Impact Assessments ◽  
The Relationship

Abstract In the EEZ, the supposed freedom of states to conduct military activities encounters the rights and duties of coastal states regarding conservation of marine resources and environmental preservation. This article focuses on the relationship between these two specific but not always compatible interests and asks: how should they be combined? Could international environmental law rules be interpreted as a limitation to the conduct of military activities in the EEZ? What are the concrete obligations of states to fulfil their environmental duties, and how far are they compatible with the conduct of other activities? The ‘due diligence’ obligation to protect the marine environment is interpreted as going further than the ‘due regard’ standard enshrined in Articles 56 and 58 of the LOSC. Accordingly, this article assumes that it is a positive obligation, implying specific consequences, such as the conduct of environmental impact assessments when the activity risks causing damage.

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.

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