Principles of international environmental law

Question 1

Are Principles binding (intended to be given binding legal affect as a Rule)?

Answer 1

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

Question 2

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)?

Answer 2

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

Question 3

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)?

Answer 3

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)

4. Also consider, where it comes from? UN? NGOs? Etc.

Question 4

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)?

Answer 4

This is more of a subsidiary consideration to help

Does it come from, say, the UN or an NGO (like Greenpeace)?

Question 5

What is the Principle of Sovereignty over resources and prevention of transboundary harm?

Answer 5

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

Question 6

Is the Principle of Sovereignty over resources and prevention of transboundary harm a binding Principle?

Answer 6

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

Question 7

What is the Principle of cooperation?

Answer 7

Rio Declaration: All states should act in good faith and the spirit of partnership

Question 8

Is the Principle of cooperation binding?

Answer 8

Yes, it is pretty well established as a Principle of customary international law

Reflected in some examples:

1. Case law
2. 2001 Draft Articles, Article 4 (which states that states should cooperate in good faith)
3. Law of the Sea Convention (again, explicit reference)

Question 9

How is the Principle of cooperation reflected in case law?

2

Answer 9

1. 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
2. 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)”

Question 10

What is the Principle of prior notification of activities?

Answer 10

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”

Question 11

What is a case example of the Principle of prior notification of activities?

Answer 11

Think Lac Lanoux situation where France should have let Spain know it was planning such work

Question 12

What is the Principle of notification of transboundary accidents?

Answer 12

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 …”

Question 13

Is the Principle of prior notification of activities binding?

Answer 13

Essentially yes

Because it is tied in with the idea of cooperation and not causing transboundary harm

Question 14

What is one example of where the Principle of notification of transboundary accidents should have arose?

Answer 14

Chernobyl nuclear disaster

Fucking commie bastardos

Question 15

Is the Principle of notification of transboundary accidents binding?

Answer 15

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

Question 16

What are 2 definitions of the Principle of sustainable development?

Answer 16

There are many different approaches to defining it, and it is often seen as more of an ‘overarching principle’

1. Brundtland Commission:
   - “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs”
2. Rio:
   - Sustainable development requires: consideration of environmental protection (principle 4); eradication of poverty (principle 5)

Question 17

Is the Principle of sustainable development binding?

Answer 17

This Principle faces to problems in being considered binding:

1. No agreed definition of what it is exactly
2. 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.

Question 18

How has the discussion on whether or not the Principle of sustainable development is binding or not been reflected in case law?

Answer 18

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

Question 19

Does the Principle of sustainable development work?

Answer 19

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)

Question 20

What is the Principle of Intergenerational Equity?

Answer 20

The idea that there are obligations on decision-makers to assess the long-term implications of their decisions (for future cunt kids)

Question 21

Is the Principle of Intergenerational Equity binding?

Answer 21

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

Question 22

How has the Principle of Intergenerational Equity been reflected in case law?

Answer 22

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

Question 23

What is the Principle of common differentiated responsibilities?

Answer 23

There are several manifestations, but the general idea is to recognise the difference between developed (wealthier) countries and undeveloped (poorer) countries

Question 24

Explain what the ‘differentiated responsibilities’ manifestation of the Principle of common differentiated responsibilities is?

Answer 24

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

Question 25

Explain what the ‘differentiation in capabilities’ manifestation of the Principle of common differentiated responsibilities is?

Answer 25

Developing countries have less capacity than developed countries to and must take steps that are ‘practicable’

Question 26

Explain what the ‘responsibility to provide assistance’ manifestation of the Principle of common differentiated responsibilities is?

Answer 26

Essentially, developed countries shall provide new and additional financial resources to meet the agreed full costs incurred by developing countries

Question 27

Is the Principle of common differentiated responsibilities binding?

Answer 27

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

Question 28

What is an obvious issue with the Principle of common differentiated responsibilities?
And a possible way to get around this?

Answer 28

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

Question 29

What is the Principle of equitable or sustainable use of resources?

Answer 29

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

Question 30

What is the polluter pays Principle?

Answer 30

Essentially, he who pollutes has to bare the cost of that harm in one of 2 ways:

1. Pay for the cost of harm or clean up
2. 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

Question 31

What is one issue with the polluter pays Principles?

Answer 31

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

Question 32

What is the Principle of common concern?

Answer 32

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

Question 33

What are 2 example areas where the Principle of common concern is relevant?

Answer 33

1. Protection of habitat/ atmosphere/ climate

2. Protection of biodiversity

Question 34

Is the Principle of common concern binding?

Answer 34

It is in a range of Conventions, HOWEVER, it is usually just included in the preamble, which is NOT binding on signatory states

Question 35

Think about whether the Principle of common concern applies to:

1. Panda extinction in China
2. Deforestation in Brazil

Answer 35

1. 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
2. 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

Question 36

How would Brazil (a developing country) respond to calls from the international community that deforestation in Brazil is an international common concern?

Answer 36

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?

Question 37

What is the Principle of common heritage of mankind?

Answer 37

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

Question 38

Can the Principle of common heritage of mankind be applied to other contexts beyond minerals on the seafloor?

Answer 38

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

Question 39

What is the Principle of transparent decision making and public participation?

Answer 39

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

Question 40

Is the Principle of transparent decision making and public participation binding?

Answer 40

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

Question 41

Why is the Principle of transparent decision making and public participation an international law issue?

Answer 41

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

Question 42

What is the precautionary Principle? What problem is it trying to avoid?

Answer 42

Essentially, in the face of uncertainty, proceed with caution

It’s trying to avoid letting scientific uncertainty discount an issue

Question 43

What is the difference between the precautionary Principle and the precautionary approach?
And which one might states prefer?

Answer 43

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

Question 44

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?

Answer 44

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

Question 45

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)?

Answer 45

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

Question 46

What might be another limitation on the precautionary Principle?

Answer 46

‘Cost effective measures’

-So you don’t have to do absolutely everything- it has to be cost effective

Question 47

Is the precautionary Principle binding?

Answer 47

It has really only been incorporated into treaties, which are binding

Unsure whether it is binding in international customary law. Unlikely.

Question 48

What is the focus of the precautionary Principle, and how might this pose a problem?

Answer 48

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

Question 49

Is due diligence a principal in and of itself?

Answer 49

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

Question 50

How to remember the Principles?

Answer 50

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