Foundational Principles of Int Env Law

Question 1

Core International Law Principles for the Environment

Answer 1

• obligation not to cause transboundary environmental harm
• precautionary principle
• polluter pays
• good neighborliness + duty to cooperate
• duties to provide prior notification + consult in good faith
• prior informed consent/consultation
• duty to assess env impacts
• public participation + access to justice

Question 2

Obligation Not to Cause Transboundary Environmental Harm

Answer 2

• generally considered part of customary international law
• Principle 21 of Stockholm and Principle 2 of Rio
• contours determine legal rights + responsibilities in most disputes regarding transboundary environmental harm
• application in the present = less of a strict liability principle + more standard of due diligence

Question 3

Trail Smelter

Answer 3

• 1941 case that extended obligation not to cause harm to other States to env damage
• Fumes from a Canadian smelter were damaging US citizens + property
• In arbitration, US-Canada International Joint Commission said “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”
• Technically provides little legal precedent (b/c closely circumscribed arbitration proceeding), but principle has been frequently repeated

Question 4

Stockholm Principle 21

Answer 4

• also Rio Principle 2
• “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”

Question 5

Pulp Mills

Answer 5

• ICJ case involving transboundary harm
• obligation to prevent pollution - obligation to act w/ due diligence re activities that take place under each party’s jurisdiction + control, adoption of appropriate rules + measures, certain vigilance in enforcement + exercise of admin control applicable to public + private operators (such as monitoring of activities undertaken) to safeguard rights of other party
• articulated in a way that’s more of a due diligence standard, also focused more on mechanisms put in place to monitor transboundary harm

Question 6

Costa Rica v. Nicaragua

Answer 6

• another ICJ transboundary harm case
• Emphasizes responsibility to ascertain whether there will be significant transboundary harm (Prof noted transboundary impact, not internal to own jurisdiction)
• Requirement to carry out EIA, not a req to stop the activity
• Prof says this is how we get from principle that’s accepted on int env law, but plays out a bit differently than you might think in practice

“Thus, to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment.”

Question 7

Precautionary Principle

Answer 7

• general concept - designed to guide decisionmakers when there’s less than perfect info (often the case in env law - lots of scientific uncertainty)
• recognizes that scientific certainty often comes too late to design effective legal + policy responses for preventing many potential env threats
• concerned w/ taking anticipatory actions to avoid env harm before it occurs

Question 8

Rio Declaration Principle 15

Answer 8

• precautionary principle
• “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”
• can’t use lack of scientific certainty as a reason for postponing cost-effective measures to prevent harm

Question 9

Concerns with Precautionary Principle

Answer 9

• fear of overregulation (cognitive biases around certain risks - more afraid of unknown)
• gap between scientific certainty + where decisions are being made (might be removing the final decision from scientific grounding - carte blanche to be anti-scientific)
• could be used as justification for protectionist measures (ex of EU w/GMOs)
• stronger version would potentially shift burden of proof - would require you to prove something won’t be harmful (paralysis in decisionmaking b/c can never prove a negative)

Question 10

Ways to Mitigate Concerns re Precautionary Principle

Answer 10

• language re threat of serious or irreversible harm
• concept of temporary nature - importance of revisiting applications of the principle (adaptive management approach)
• concept of cost-effectiveness in Rio articulation of the principle

Question 11

Precautionary Principle - Addressing Risks

Answer 11

• risk assessment = how you start to approach policymaking despite uncertainty (need some kind of notion of what the potential harm is)
• then wind up w/ q of what to do once you’ve assessed the risks -> risk management (acceptance of levels of risk is in part a political decision)
• q of whether there are certain kinds of harm where we should not be willing to take the risk at all

Question 11

Precautionary Principle - Sources of Scientific Uncertainty

Answer 11

• lack of research (current lack of assessment - could be remedied, could impact moments for revisiting a reg)
• complexity of ecological systems (we study the pieces, but very difficult to understand all interactions ahead of time)
  -> always something we don’t know, + often impossible to even know what it is we’re missing
• indeterminacy of ecological systems (lack of stable state of nature - constant evolution)
• historical data gaps (need baseline to figure out protection)

Question 12

Risk Assessments and Objectivity

Answer 12

• conundrum that even risks assessments rely on making some assumptions + putting some value to things
• q of whether policymaking allows room to question the objectivity of the risk assessment itself

Question 13

Precautionary Principle - Trigger

Answer 13

• in theory, trigger = response to concerns of precautionary principle causing policy paralysis
• in practice though, complex q’s still re specifics + what threshold you need
• also q of who is deciding (will a court evaluate whether or not there was sufficient trigger?)

Question 14

Precautionary Principle - Application

Answer 14

• discussed in class how general concept exists, but particular context tends to be highly relevant to how it’s applied
• somewhat difficult then to determine its parameters as customary int law (not a lot of agreement on specific details of what’s required)
• Rio articulation tends to dominate discussion, though also have specific references to the principle in particular agreements
• focus on serious/irreversible damage key to ensuring it doesn’t stop all uncertain activity
• generally requires risk assessment (tendency to see this as different from risk management)

Question 15

Precautionary Principle - Fisheries

Answer 15

• Prof used this as an ex of how context matters
• might have a context in which once you’ve reached a certain level of concern, you DO need to prove the activity won’t be harmful before proceeding
• for fisheries, if you have dramatic, unexpected population plunge in response to overfishing, might halt the fishery to determine what’s going on (consequences are already ones you didn’t predict, exercising extreme caution to make sure resource isn’t lost forever)

Question 16

Why can you have precautionary principle that isn’t in conflict with science-based decision-making?

Answer 16

• still begins with risk assessment (might have uncertainty on cause + effect, but might be able to discern potential scale + seriousness of potential harm + effectiveness of policy measures)
• can revisit decisions as science develops

Question 17

Polluter Pays Principle

Answer 17

• says States should take those actions necessary to ensure that polluters and users of natural resources bear the full environmental and social costs of their activities
• designed to internalize env externalities
• directed at national authority

Question 18

Polluter Pays Principle - Economic Theory

Answer 18

• supposed to integrate env protection + econ activities
• ensures full env + social costs are reflected in ultimate market price for a good or service -> environmentally harmful or unsustainable goods will tend to cost more + consumers will switch to less polluting substitutes -> more efficient + sustainable allocation of resources

Question 19

Rio Declaration Principle 16

Answer 19

• addresses polluter pays principle
• “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.”

Question 20

Polluter Pays - Complexities

Answer 20

• need to be able to figure out the “cost” of the pollution (some more direct, but others more diffuse or more indirect)
• q of who is the polluter (is the consumer responsible at all? is the state responsible for not enforcing regs?)
• difficulty of translating env harms to $ (even if you ask how much people would pay, there’s an extent to which you then go into additional considerations - how much $ someone has to begin w/, how much they understand about ecology, env consciousness + priorities, sense of own responsibility, etc.)

Question 21

Polluter Pays + Liability

Answer 21

• liability = way of shaping parties’ behavior by making them pay for consequences
• tends not to be the approach taken though - partly b/c trying to prevent pollution in the first instance, but also partly b/c states are generally reluctant to accept responsibility for things they’ve done

Question 22

Polluter Pays and Harmonizing Env Standards

Answer 22

• reduces potential for countries to compete for investors by lowering their environmental standards or by subsidizing the costs of installing environmental technologies

Question 23

Duties of Neighboring Countries

Answer 23

• duty to cooperate
• duty to obtain prior informed consent
• prior notification and good faith consultation

Question 24

Duty to Consult vs. Duty of Consent

Answer 24

• duty to consult when you think there’s risk of significant adverse effect that’s transboundary - need to notify neighbor + consult w/ goal of minimizing or eliminating the risk (also feeds into due diligence concept of not causing transboundary harm, as well as EIA)
• vs. consent required if something will happen directly on neighbor’s territory

Question 25

Rio Declaration - Principle 17

Answer 25

• Environmental Impact Assessment
  “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”
• similar to Polluter Pays, states are supposed to implement this at the subnational level

Question 26

EIA and Transboundary Harm

Answer 26

• some q as to whether EIA is required under customary int law -> answer may depend on whether harm is w/in country or transboundary

Question 27

What purpose does EIA serve?

Answer 27

• risk assessment
• slowing the process down (may change your mind, find ways to mitigate harm, find alternatives)
• generates a record -> more info about the action (good for transparency + accountability, ability of civil society to engage)
• BUT typically just a procedural req

Question 28

Pulp Mills Decision

Answer 28

• generally considered the definitive statement of the role of EIA in int law
• ICJ said EIA IS required as part of hard int law
  -> triggered where risk of “significant adverse impact in a transboundary context, in particular, on a shared resource” (Prof’s position in class seemed to be exclusively required in transboundary context, potentially only when shared resource)
• content of EIA wrt reqs to consider alts + consult w/ affected communities was solely a matter of domestic law (Prof noted difficulty of defining customary int law beyond general existence of EIA req - difficult to say specifics)

Question 29

Domestic Law and EIAs

Answer 29

• technically appears in Rio
• BUT Prof’s take was that you may not have a hard law ob to do EIA wrt domestic harms
• in practice, has been implemented by states but content varies

Question 30

Access Rights

Answer 30

Three Rights:
- public participation
- access to information
- access to justice

• longstanding principles of human rights applied to env context
• content of these rights depends on particular agreements

Question 31

Procedure + Int Env Law

Answer 31

• discussed in class role of procedural rights in promoting substantive env + health outcomes
• concept that env law often involves procedural approaches w/o necessarily committing to a particular endpoint

Question 32

Rio Principle 10

Answer 32

• deals with general parameters of the access rights wrt env decision-making
• Best handled w/ participation of all concerned citizens
• At national level, each indiv shall have appropriate access to info concerning the env that is held by public authorities, including info on hazardous materials + activities in their communities + opportunity to participate in decision-making processes
• States shall facilitate + encourage public awareness + participation by making info widely available
• Effective access to judicial + admin proceedings, including redress + remedy, shall be provided