Sovereignty Bounded: Public Trusteeship for Common Pool Resources?

2004 ◽  
Vol 4 (1) ◽  
pp. 47-71 ◽  
Author(s):  
Peter H. Sand

In spite of early hopes for a “fading out” of sovereignty in the face of global environmental challenges, recent codifications of international law have confirmed the creeping national enclosure of what were once considered common assets—e.g., exclusive economic zones under the 1982 Law of the Sea Convention, or access to genetic resources from the 1983 International Undertaking via the 1992 Biodiversity Convention to the 2001 Plant Gene Treaty. Yet, because of their explicit limitation and qualification by “common interest” obligations, these expanded sovereign rights of nation states must be considered fiduciary rather than proprietary. Hence, the emerging legal regime is one of international public trusteeship (sometimes referred to as guardianship or stewardship) over a widening range of environmental resources. The article traces the evolution of the trusteeship concept in modern environmental law and its ramifications for international law and governance, as reflected in current proposals suggesting a new environmental mandate for the UN Trusteeship Council.

2021 ◽  
pp. 186-208
Author(s):  
Anders Henriksen

International environmental law is an area of international law where states have decided to cooperate with each other in order to fulfil certain goals of common interest and, for the most part, its rules and principles belong in the category of the international law of cooperation. This chapter discusses the most important parts of international environmental law and its main legal sources. It presents the fundamental principles of international environmental law, including those that seek to prevent damage to the environment and those that seek to ensure a balanced approach to environmental protection. It provides an overview of the most important parts of the substantial regulation in international environmental law, including the legal regime for the protection of the atmosphere, the conservation of nature and the regulation of hazardous substances. It also discusses features related to implementation and enforcement that are particular to international environmental law.


Author(s):  
Anders Henriksen

International environmental law is an area of international law where states have decided to cooperate with each other in order to fulfil certain goals of common interest and, for the most part, its rules and principles belong in the category of the international law of cooperation. This chapter discusses the most important parts of international environmental law and its main legal sources. It presents the fundamental principles of international environmental law, including those that seek to prevent damage to the environment and those that seek to ensure a balanced approach to environmental protection. It provides an overview of the most important parts of the substantial regulation in international environmental law, including the legal regime for the protection of the atmosphere, the conservation of nature, and the regulation of hazardous substances. It also discusses features related to implementation and enforcement that are particular to international environmental law.


2011 ◽  
Vol 26 (3) ◽  
pp. 385-411 ◽  
Author(s):  
Cathy Suykens

AbstractThe international community and important nuclear stakeholders are making efforts to promote the further globalisation of the nuclear fuel cycle. Consequently, marine shipments of radioactive materials are ever increasing. The history of maritime carriage of these substances has been characterised by disagreements between the various stakeholders with regard to, i.e., concepts such as innocent passage as included in the 1982 UN Convention on the Law of the Sea and implementation and interpretation of the precautionary principle. The international framework governing these shipments is flawed due to its inconsistency and fragmentation, thereby passively allowing coastal nations to take unilateral action, such as blocking the shipments from their Exclusive Economic Zones and territorial waters. On the European level, modern environmental law principles are being put forward more progressively, but are not incorporated into a consistent and clear legal regime in this particular context. Overall, there are many feasible improvements, both in the short- and the long term.


2019 ◽  
pp. 189-211
Author(s):  
Anders Henriksen

International environmental law is an area of international law where states have decided to cooperate with each other in order to fulfil certain goals of common interest and, for the most part, its rules and principles belong in the category of the international law of cooperation. This chapter discusses the most important parts of international environmental law and its main legal sources. It presents the fundamental principles of international environmental law, including those that seek to prevent damage to the environment and those that seek to ensure a balanced approach to environmental protection. It provides an overview of the most important parts of the substantial regulation in international environmental law, including the legal regime for the protection of the atmosphere, the conservation of nature and the regulation of hazardous substances. It also discusses features related to implementation and enforcement that are particular to international environmental law.


Author(s):  
Simon MCKENZIE

Abstract The development of uncrewed maritime vehicles [UMVs] has the potential to increase the scale of military maritime surveillance in the exclusive economic zones of foreign coastal states. This paper considers the legal implications of the expanded use of UMVs for this purpose. It shows how features of the legal regime—namely how its application depends on determining the intent of a vessel's operation (to distinguish marine scientific research from military surveillance), as well the obligation to have due regard—have a “dynamic” quality that will pose a challenge to UMVs operated by autonomous technology. The legal obligations will require equipping UMVs with the capacity to communicate something about their identity, the purpose of their mission, and to be able to have some capacity to be responsive to the economic and environmental interests of the coastal state.


Author(s):  
Elizabeth Fisher

Environmental problems transcend the boundaries of nation states. That fact is a reminder of the physical reality of such problems, but—for good or ill—political and legal imagination is the product of political communities that cluster into nation states. ‘The significance of nation states’ looks at how environmental law is shaped by the legal culture of nation states. It also discusses the difference between civil law systems and common law systems. The internal constitutional arrangements of a country are fundamental to how environmental law develops in a particular legal culture. Is a ‘global environmental law’ emerging?


Author(s):  
An Cliquet ◽  
Afshin Akhtar-Khavari

The concept of remedies has always been an important component of the legal system. Throughout the world, countries have utilized environmental law in a variety of ways to legislate for the remediation and rehabilitation of destroyed or degraded land and ecosystems. For example, in some countries, environmental law has provided for the remediation of contaminated mine sites, which can rather be classified as environmental restoration. However, often these countries have yet to properly enforce such law. Furthermore, given the significant increase in anthropogenic harm during the past few decades, there is an increasing realization that more needs to be done than simply acting to protect an environment from harm. Unlike the terms “rehabilitation” and “remediation,” the term “restoration” is drawn from the science of restoration ecology. The Society for Ecological Restoration (SER) defines ecological restoration as “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed.” Ecological restoration contributes to the application of the ecosystem approach. There are different approaches to ecological and ecosystem recovery, such as rewilding or extreme forms of restoration such as “de-extinction.” This is due to the inherent complexity of assisting nature to recover from anthropogenic harm. Ecological restoration is the most prominent practice among ecologists to restore ecosystems, but is not the only approach. The main focus here will be on ecosystem restoration. “Restoration ecology” is the broad name for the scientific discipline behind ecological restoration and other recovery initiatives, and is a relatively new but rapidly developing branch within the study of natural sciences. Even more recently, there has been increasing legal attention to ecological restoration. There is no separate instrument in international law dealing with ecological restoration. However, legal obligations for restoration can be found in various multilateral environmental agreements, regional conventions, regional instruments such as European Union (EU) directives, and soft law instruments. The 1992 Convention on Biological Diversity (Biodiversity Convention) is an important convention outlining State party obligations for ecological restoration, as can be seen in both the Convention text and subsequent Conference of Parties decisions, including the 2010 Aichi Targets, which detail a specific target for ecological restoration. Prior to the Biodiversity Convention, the international community utilized the 1971 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) to introduce the concept of restoration. Other conventions that address ecological restoration or species restoration include the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention), the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals (Convention on Migratory Species), and several of its additional agreements. Climate change poses both opportunities and additional challenges for restoration. Restoring ecosystems such as forests and peatlands assists in the reduction of carbon in the atmosphere. Within the framework of the United Nations Framework Convention on Climate Change (UNFCCC 1992) and the 2015 Paris Agreement, the role of restoration has been recognized. As various conventions and soft law instruments now impress obligations of restoration, the legal duty to restore the environment has matured into a customary obligation and can be considered as an emerging legal principle. However, most instruments containing legal obligations for restoration do not contain a clear definition or further clarification on how a State party might restore an ecosystem.


2018 ◽  
Vol VIII (z. 2) ◽  
pp. 157-172
Author(s):  
Przemysław Osóbka

The article is an attempt to respond to the need to find international legal solutions, extremely important for people living in the countries threatened by the consequences of climate change, among others, the effects of rising sea levels in the seas and oceans. I try to direct attention to the still underestimated in the international law problem of the so-called "climate refugees". Behind the concept that defies the classic definitions of "refugees", there are hundreds of thousands today, and soon perhaps millions of people whose lives, health and property will be threatened by the forces of nature. The originality of the approach presented in the article is an attempt to consider whether appropriate legal solutions that protect vulnerable populations can be sought on the basis of international humanitarian law, since so far no other branch of international law seemed adequate to take up this challenge. The urgent and important dimension of the problems discussed in the article completes the necessity of searching for and finding answers to questions about the relationship between climate change and public international law. These are the legal consequences of climate deterritorialisation of sovereign states, such as the status of the population of the state without land territory, the loss of territories by archipelago states, the change of the sea borders, territorial waters, exclusive economic zones, and finally the responsibility of states for climate change. In the context of 'climate refugees', there is still no binding legal act that would meet the needs of thousands of people affected by climate change. This causes dissonance because, beyond any doubt, the situation in which these people find themselves raises a lot of fears - for their own lives, safety, health, etc. Today, entire communities and even countries face the problem of progressing deterritorialisation in face of climate threats. climate change, they face the risk of a non-culpable threat to their sovereignty.


2021 ◽  
Author(s):  
Peter H. Sand

‘Climate change law’ is considered by a number of legal scholars as an emergent novel discipline. The question, then, is whether the advent (and future prospect) of climate change has resulted in a coherent autonomous new body of law, be it a nascent one; or is it nothing more or less than the application of existing national and international environmental law to climatic problems? It is perhaps worth recalling that international environmental law itself only ascended to the rank of a recognized discipline of its own in the 1990s, over considerable academic scepticism at the time. Not un-similarly, the ongoing new project of the UN International Law Commission (ILC) for the drafting of guidelines on “protection of the atmosphere” has met with resistance from a few powerful States claiming that there is no need for further codification of international law in this field. Yet, considering our common interest in conserving the quality of the Earth’s atmosphere and climate, the ILC project may indeed encourage further development of a concept of inter-generational “planetary trusteeship”, owed by States as public trustees to present and future citizens as the beneficiaries.


1998 ◽  
Vol 156 ◽  
pp. 788-808 ◽  
Author(s):  
Michael Palmer

In the post-Mao era, one highly significant dimension of China's official programme of reform and integration into the international economy has been a commitment to legal construction. This commitment has included a sustained effort to fashion a basic corpus of environmental protection law alongside supportive institutions, administrative norms and policies, in order to create a “basic legal system of environmental protection” (huanjing baohu de jiben falii zhidu).' In the eyes of the authorities in the People's Republic of China, such efforts reflect a degree of environmental concern that is unusually strong for a developing society.2 China's achievements, we are often told, must be placed in the context of the considerable difficulties the PRC faces in terms of the pressing need to raise living standards, a serious problem of over-population, a shortage of natural resources, an outdated industrial infrastructure and poor industrial management.3 Of course, viewed comparatively, the PRC's embrace of environmental protection law was somewhat belated,4 only properly commencing after its participation in the 1972 United Nations Conference on the Human Environment held in Stockholm. The subsequent expansion of environmental legislation and enforcement has been some-what erratic. Nevertheless, there appears to be a continuing intent to fashion a substantial body of environmental law, and concern with the construction and revision of this was further enhanced by China's participation in the 1992 UN Conference on Environment and Development, held in Rio de Janeiro. Following this, Premier Li Peng “made a commitment to conscientiously implement resolutions adopted at the Conference”5 and, given the PRC's very substantial size and population, a positive embrace of internationally acceptable standards of environmental welfare is highly significant for future global environmental protection. This article examines the principal features and significance of the PRC's domestic environmental protection law, and considers briefly the implications of the Chinese approach to environmental law for understanding the development of law more generally in post-Mao China.


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