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The main principles underlying the organisation of the global economy pre-date the Second World War, but mostly as ideas or policies, enshrined in domestic law, in international instruments of limited scope or in aborted attempts at designing far-reaching ones. The Second World War reset the approach to the global economy, either by taking such principles from a bilateral to a global level or by formulating new ones.
The prevention principle, in its accepted formulation of Principle 21 of the Stockholm Declaration and, later, of Principle 2 of the Rio Declaration (hereafter ‘Principle 21/2’) is an extension of an older norm aimed at ensuring respect of the rights of other States which could be hampered as a result of activities conducted in the territory of a State. The activities which called for such an extension concerned inter alia the exploitation of natural resources. Before the emergence of an environmental consciousness in the 1960s, the ‘environment’ was perceived through the lenses of ‘natural resources’ and, to a far lesser extent, of ‘conservation’. What today is called ‘environmental’ harm was only a concern inasmuch as the exploitation of natural resources would have damaging consequences on a neighbouring State. The international legal response to such damage rested on the rules of State responsibility for internationally wrongful acts. The focus on reparation and compensation in case of environmental harm was an application of the traditional legal concepts protecting State sovereignty – these included in particular the sic utere tuo ut alienum non laedas rule (‘use your own property so as not to harm that of another’), the prohibition of abus de droit and the rules on good neighbourliness. These concepts translated the idea that, in an interdependent world, sovereignty can only be relative and is limited by the obligation to respect the sovereignty of other States. Such recognition crystallised in the ‘no harm’ rule, the obligation of States not to cause transboundary environmental harm.
The year 2020 marks the seventy-fifth anniversary of the establishment of the United Nations Organisation, the cornerstone of the post-war international order, and the fiftieth anniversary of the 1970 Friendly Relations Declaration, which provided the canonical formulation of seven foundational principles of international law. Yet, the current international context seems largely inauspicious for genuine celebration. Although the world order engineered by the victorious powers after the Second World War has faced daunting challenges in the past, what is particularly disquieting about the present situation is that the challenges come, to a significant extent, from the main proponent and guarantor of the post-war rules-based international order, the United States, in the absence of any comparable stabilising forces. Whether it is the inward reflexes and blame game of major countries in reacting to a global pandemic, or the use of force by Russia for the annexation of Crimea or its interference in electoral processes in the United States, France, Italy and the UK, or the trade war triggered by the United States against China and the EU, or its withdrawal from the Paris Agreement on Climate Change, or China’s defiance of the basic rules of the law of the sea to assert its power within a ‘nine dash’ line in the South China Sea, all these cases go beyond mere controversy over the applicability of a principle to a given situation and constitute open defiance of the letter and/or spirit of the very principles that have served, since 1945, as the normative standards determining the lawfulness of international action.
The year 2020 marks the 75th anniversary of the United Nations Organisation, and the 50th anniversary of the United Nations Friendly Relations Declaration, which states the fundamental principles of the international legal order. In commemoration, some of the world's most prominent international law scholars from all continents have come together to offer a comprehensive study of the fundamental principles of international law. Each chapter in this volume reflects decades of experience, work and reflection by the most authoritative voices of the field. At the same time, the book is an invitation to end narrow specialisation and re-engage with the wider body of rules and processes that lie at the foundations of the international legal order.
This chapter discusses the importance of the legal aspects of energy policy. It advances two main propositions: (a) different legal expressions of similar energy policies have different implications for the effectiveness and overall impact of a policy, and (b) the choice of legal expression is highly constrained by (i) law as a technology (i.e., the tools available to translate a policy into legal terms), (ii) the need to fit the policy within a broader legal framework and (iii) the underlying economic, social and political considerations affecting the choice of certain legal expressions. The chapter illustrates these two propositions by reference to three case studies relating to the extraction of shale gas in the EU, decarbonisation in the United States, and state support for renewable energy in India.