Principles of international environmental law Flashcards
Are Principles binding (intended to be given binding legal affect as a Rule)?
Not really
Principles “embody legal standards, but the standards they contain are more general than commitments and do not specify particular actions” (Sands)
They are not Rules, so they might not be binding.
HOWEVER they can be worded in a way that essentially makes them a binding Rule
Also NB: Art 38 ICJ mentions Principles as law, and States often refer to them as what to base their behaviour on
How does the instrument that a Principle is found in affect your determination of whether it is intended to be given binding legal affect as a Rule)?
Treaty?
-Binding on the signatory parties, but not other States
Principles of customary international law (where a State believes it is acting in accordance with law)?
-All States are bound
More akin to policy than rules?
-The concepts themselves are recognised as useful, but they don’t bind States on their own – rather they require incorporation into a treaty
How can the structure and wording of a Principle affect your determination of whether it is intended to be given binding legal affect as a Rule)?
If the concept structured in a way that it can CLEARLY STEER THE BEHAVIOUR of states, then it is intended to be binding
If the wording obviously intended to be binding then it is intended to be binding
- Use of strong language etc.
- More waffly: Principle (soft law)
- More specific and detailed (like actual figures/quotas): Rule
If not, then it is probably policy (soft law)
- Also consider, where it comes from? UN? NGOs? Etc.
How can the origin of the instrument where the Principle is found affect your determination of whether it is intended to be given binding legal affect as a Rule)?
This is more of a subsidiary consideration to help
Does it come from, say, the UN or an NGO (like Greenpeace)?
What is the Principle of Sovereignty over resources and prevention of transboundary harm?
Giving state sovereign right to exploit own resources
Responsibility for transboundary and global environmental harm
-I.e. don’t do anything that will cause another state some harm
Is the Principle of Sovereignty over resources and prevention of transboundary harm a binding Principle?
It is found in the Stockholm and Rio Declarations, so no it is not binding.
HOWEVER, the Trail Smelter case and the Corfu Channel Case has recognised it as a principle of customary international law, so it could be argued that it IS binding on all states
-So it is essentially binding
But NB that it could also be argued that there is no binding case precedent in international law
What is the Principle of cooperation?
Rio Declaration: All states should act in good faith and the spirit of partnership
Is the Principle of cooperation binding?
Yes, it is pretty well established as a Principle of customary international law
Reflected in some examples:
- Case law
- 2001 Draft Articles, Article 4 (which states that states should cooperate in good faith)
- Law of the Sea Convention (again, explicit reference)
How is the Principle of cooperation reflected in case law?
2
- Lac Lanoux arbitration
- Case between France and Spain where France was attempting to divert river water for agricultural purposes
- Tribunal said France was under an obligation to take Spain’s interests into account; e.g. they should have consulted Spain about their plans
- So to cooperate, you need to talk to your neighbour about matters that could impact on their interests - Mox Plant case
- A case of a nuclear processing plant on the Irish sea. Ireland was concerned that the processing plant would pollute the Irish sea, but the UK refused to engage in conversations about the plant.
- The court said that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under … the Convention and general international law (i.e. customary international law)”
What is the Principle of prior notification of activities?
Rio, Principle 19: “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith”
What is a case example of the Principle of prior notification of activities?
Think Lac Lanoux situation where France should have let Spain know it was planning such work
What is the Principle of notification of transboundary accidents?
Early notification, consultation and assistance
Rio, Principle 18: “States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States …”
Is the Principle of prior notification of activities binding?
Essentially yes
Because it is tied in with the idea of cooperation and not causing transboundary harm
What is one example of where the Principle of notification of transboundary accidents should have arose?
Chernobyl nuclear disaster
Fucking commie bastardos
Is the Principle of notification of transboundary accidents binding?
It is often found in treaties such as the Law of the Sea Convention, the Biodiversity Convention and pollution conventions, so yes when it is in a treaty
Where there is no relevant treaty you could argue that it is closely linked with other Principles such as:
- The Principle of prevention of transboundary harm, and
- The Principle of cooperation
What are 2 definitions of the Principle of sustainable development?
There are many different approaches to defining it, and it is often seen as more of an ‘overarching principle’
- Brundtland Commission:
- “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs” - Rio:
- Sustainable development requires: consideration of environmental protection (principle 4); eradication of poverty (principle 5)
Is the Principle of sustainable development binding?
This Principle faces to problems in being considered binding:
- No agreed definition of what it is exactly
- There is no standard to compare as to whether or not states have complied with it
Point:
What exactly SD amounts to is a moving goal post – one that is hard to find. This is why Joanna believes that it can never be more than a policy approach, notwithstanding that it is found in a number of treaties etc.
How has the discussion on whether or not the Principle of sustainable development is binding or not been reflected in case law?
Danube Dam case 1997
- Proposal for a dam to be built on the Danube river between Czechoslovakia and Hungary
- C decided to go ahead with it without discussing the matter with H
Issue: how to establish that the treaty concerned with said that parties will take into account the principles of sustainable development:
ICJ majority: sustainable development is not a binding principle at international law. Rather, it is a socio-political objective
Judge Weeramantry’s dissenting: it is a modern principle of customary international law; a legal principle necessary to reconcile and harmonise competing needs and interests of the law of development and the law of the environment
-NB: Weeramantry’s view is not generally accepted
Does the Principle of sustainable development work?
Sustainable development is good in theory, but almost impossible to implement
It has many challenges, such as reconciling the immediate (economic) with the long term (environment)
What is the Principle of Intergenerational Equity?
The idea that there are obligations on decision-makers to assess the long-term implications of their decisions (for future cunt kids)
Is the Principle of Intergenerational Equity binding?
There has been explicit inclusion in some treaties, although usually as a principle or policy statement
Generally, it is not considered a ‘rule’, but rather it serves as a guiding principle/policy and impetus for development of more specific rules
Further:
- Hard to judge whether or not a country has actually acted in compliance with it.
- It only encourages a certain perspective, rather than generating any certain outcome
How has the Principle of Intergenerational Equity been reflected in case law?
Minors Oposa v Factoran
- Case challenging logging permits – Philippines constitution contains a right to a clean environment as a basic human right.
- The Philippines Supreme Court said that it was appropriate for people to bring a claim on behalf of future generations
The case is often seen as the high point of legal influence on the Principle. However, subsequent cases have not followed this approach
What is the Principle of common differentiated responsibilities?
There are several manifestations, but the general idea is to recognise the difference between developed (wealthier) countries and undeveloped (poorer) countries
Explain what the ‘differentiated responsibilities’ manifestation of the Principle of common differentiated responsibilities is?
Developed countries have a greater responsibility for responding to environmental problems because they created most of it, and why should poorer countries have to suffer in their pursuit of development
Explain what the ‘differentiation in capabilities’ manifestation of the Principle of common differentiated responsibilities is?
Developing countries have less capacity than developed countries to and must take steps that are ‘practicable’
Explain what the ‘responsibility to provide assistance’ manifestation of the Principle of common differentiated responsibilities is?
Essentially, developed countries shall provide new and additional financial resources to meet the agreed full costs incurred by developing countries
Is the Principle of common differentiated responsibilities binding?
No, it is not a Principle of customary international law
But it is the guiding Principle behind many treaties, especially ozone and climate change regimes
What is an obvious issue with the Principle of common differentiated responsibilities?
And a possible way to get around this?
How ‘developed’ and ‘undeveloped’ countries are categorised
-E.g. is it really fair to compare China with Fiji?
One way we have got around this is to categorise countries as developed per capita
What is the Principle of equitable or sustainable use of resources?
Essentially, we shouldn’t be using resources where they are going to be depleted or over-exploited
-NB: links back into the idea of inter-generational equity
Sustainable use is about not over loading your resources
- E.g. Law of the Sea Convention: don’t overfish
- E.g. Tropical Timber Convention: don’t cut down the whole fucking forest
Equitable use is about everyone getting fair share
- E.g. UN Watercourses Convention: where you have up river states and down river- about using it fairly
- HOWEVER, good use of rivers is arguably customary international law
What is the polluter pays Principle?
Essentially, he who pollutes has to bare the cost of that harm in one of 2 ways:
- Pay for the cost of harm or clean up
- Govt. taxing a certain activity or level of pollution (providing incentives for better operational procedures)
- About national authorities internalising the cost of environmental harm
- Closely aligned to state responsibility- the state should be responsible for any breaches of international law
What is one issue with the polluter pays Principles?
Creating an effective liability regime.
Because of this there are not many. But there are some, the most obvious ones being Conventions that deal with oil spills for ships
What is the Principle of common concern?
The idea that environmental problems are the concern of the INTERNATIONAL community as a whole
It has been used since the 90s to describe situations that require an international response
What are 2 example areas where the Principle of common concern is relevant?
- Protection of habitat/ atmosphere/ climate
2. Protection of biodiversity
Is the Principle of common concern binding?
It is in a range of Conventions, HOWEVER, it is usually just included in the preamble, which is NOT binding on signatory states
Think about whether the Principle of common concern applies to:
- Panda extinction in China
- Deforestation in Brazil
- Probably not, but there could moral or symbolic concerns
- Also NB that countries are often very sensitive about having other countries impose policy on them - Probably yes, has impact on global climate- presence of forests increase rainfall, take it away and it changes patterns around the world, plus the take in carbon when they grow
How would Brazil (a developing country) respond to calls from the international community that deforestation in Brazil is an international common concern?
Fuck you world
We’ve got a right to develop and we should be able to use our resources to do that
just like all you cunts did. Just because Europe has cut down all its forest for farms, why should Brazil refrain from doing the same?
What is the Principle of common heritage of mankind?
The idea that minerals are owned (and shared) by the international community
-(cf catching a fish and getting individual property in it).
A doctrine that developed in the 60s, around the time that minerals were discovered on the sea floor. Developed countries argued that applying freedom to these resources would further detriment undeveloped countries
It’s almost a communist idea- the benefits should be shared equitably between all states, taking into account undeveloped states
Can the Principle of common heritage of mankind be applied to other contexts beyond minerals on the seafloor?
It has been attempted in places like outer space and mining on the moon, but the key states of US and Russia have rejected this
Also attempted for Antarctica, but most of the Antarctic treaty states rejected this as well
So only applies to deep sea bed mining at the moment
Nice try though
What is the Principle of transparent decision making and public participation?
Essentially, when there is a decision being made on, say, a factory near a river, all of the information should be collected and made available to the public and they should have an opportunity to be heard, and opportunities for reconsideration of the decision
Point: if you just leave it up to developers and policy makers then you might get shitty decisions
Is the Principle of transparent decision making and public participation binding?
The most cited example is the Aarhus Convention, which is binding on signatory members. However, this is primarily a European Convention.
But the Principle is slowly gathering steam elsewhere
Why is the Principle of transparent decision making and public participation an international law issue?
Element of human rights maybe- people have a right to know about their environment
Also it is in everyones best interests for good decisions to be made
What is the precautionary Principle? What problem is it trying to avoid?
Essentially, in the face of uncertainty, proceed with caution
It’s trying to avoid letting scientific uncertainty discount an issue
What is the difference between the precautionary Principle and the precautionary approach?
And which one might states prefer?
The Principle is the basic idea, and the approach is the way it is being implemented
States may be reluctant to include the ‘Principle’ because it sounds more legally significant than calling it an ‘approach’- states not wanting it to become binding on them
Why might states be reluctant to agree to the binding nature of the precautionary principle as oppose to the less binding nature of the precautionary approach?
Because of the inherent uncertainty surrounding environmental issues
This flows through to issues with interpretation of thresholds etc., how do you determine whether a state is taking precaution?
This leaves wide scope for the threshold of the Principle
- From ‘just don’t do it’ (so we can do something unless there is legit evidence that it’s wrong)
- Or a less strong approach could be: if you’re uncertain, you have an obligation to take steps to mitigate (uncertainty does not justify inaction)
Look to the language of the instrument to determine the threshold for invoking the precautionary Principle
What is the difference between an instrument stating that ‘the precautionary Principle will apply where there are reasonable grounds for concern’ (OSPAR) and an instrument saying ‘the precautionary Principle shall apply where there are threats of serious irreversible damage’ (Rio)?
OSPAR has a much lower threshold for invoking the Principle than Rio
NB: OSPAR also says ‘even where there is no causal connection’- so opening the PP up to all sorts of situations
Again, look to the language of the instrument to determine the threshold for invoking the precautionary Principle
What might be another limitation on the precautionary Principle?
‘Cost effective measures’
-So you don’t have to do absolutely everything- it has to be cost effective
Is the precautionary Principle binding?
It has really only been incorporated into treaties, which are binding
Unsure whether it is binding in international customary law. Unlikely.
What is the focus of the precautionary Principle, and how might this pose a problem?
It focuses on deterring things that we think are undesirable
However, it may not help in encouraging desirable behaviour. But you could argue that taking precaution IS desirable
Is due diligence a principal in and of itself?
Yes and no. But not really
Yes because it is such a key idea. But really it is just a way to implement an obligation
Examples:
Pulp Mills: obligation to look after the river, DD was the way to go about that
Advisory opinion: DD was satisfying your obligations by making sure the contractors did what they are required to do
It’s complicated in terms of the EIA, which is a seperate obligation in some treaties
But it can be part of the obligation to observe other obligations (like transboundary harm)
Point:
It’s not easily characterised- depends on the context
How to remember the Principles?
CC D SHIT TRAP PP
- Principle of COOPERATION
- Principle of Common CONCERN
- Principle of Common but DIFFERENTIATED Responsibilities
- Principle of SUSTAINABLE development
- Principle of common HERITAGE of mankind
- Principle of INTERGENERATIONAL Equity
- Principles of Prevention of TRANSBOUNDARY Harm
- TRANSPARENT decision making and public participation
- Principles of Sovereignty over RESOURCES
- Principle of notification of Transboundary -ACCIDENTS
- Principle of PRIOR notification of activities
- POLLUTER Pays Principle
- PRECAUTIONARY Principle
