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4700 results in Environmental law

Page 108 of 235

  • Preface and Acknowledgements to the Fourth Edition

  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp xxv-xxvi

  • Summary

    In its fourth edition, Principles of International Environmental Law affirms the consolidation of international environmental law as a central part of the international legal order. Major treaty regimes cover virtually all environmental issues, with new treaties now in place for mercury pollution (2013 Minamata Mercury Convention) and climate change (2015 Paris Agreement). Case law on environmental and natural resource issues continues to grow, and there is considerable evidence that practitioners and judges are engaging more fully with questions regarding science and expert evidence in factually complex and technical disputes. In the period since the third edition, linkages between international environmental law and other areas of international law have deepened and broadened. This is also reflected in policy instruments, such as the 2015 United Nations Sustainable Development Goals, which bring together issues of development, poverty eradication and disaster management with environmental protection in an international sustainable development agenda for the period up to 2030. However, as we noted in the third edition preface, extensive legal development in the field has not satisfactorily addressed the most pressing environmental problems. With the exception of the ozone treaty regime – hailed as a success for its role in reversing ozone depletion – international environmental law has not provided a solution in the key areas of climate change, marine pollution and biodiversity loss. More than ever, the subject of international environmental law is approaching a critical point: can it deliver real protections, or will its impact be merely marginal or cosmetic?

    Like the previous editions, this edition is intended to provide a comprehensive overview of those rules of public international law that have as their object the protection of the environment. We have sought to state the law as of March 2017. Necessarily, given the vast breadth of the subject and the level of detail now available on some specific topics (climate change, oceans, trade, biodiversity are leading examples here), the book's account of the subject area cannot be exhaustive. In this edition, we have sought to improve the book's coverage of important areas such as climate change (with a new chapter which incorporates the latest developments under the Paris Agreement), oceans and fisheries, and biodiversity.

  • 13 - The Polar Regions: Antarctica and the Arctic

  • from Part II - Principles And Rules Establishing Standards
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 632-654

  • Summary

    INTRODUCTION

    The Antarctic and the Arctic polar regions are subject to special regional rules of environmental protection, which are discussed in this chapter. These rules reflect the unique physical conditions of these areas and the important role they play in maintaining regional and global environmental conditions. They also provide useful models for the development of international environmental law in other regions and globally. For the Antarctic, the environmental rules have developed in the context of complex legal issues arising from claims made by some states to sovereign rights over Antarctic territory, and the opposing view of most other states that the Antarctic is part of the global commons and not subject to the exclusive jurisdiction of any state. These differences have not prevented the adoption of innovative and potentially far-reaching rules for the protection of the Antarctic environment and its ecosystem. The Arctic region, on the other hand, is subject to the undisputed jurisdiction of certain states, and for the most part environmental protection in that area is based on national environment laws, although these may implement international environmental obligations. In 1991, Arctic states recognised the need for international cooperation to address threats to the Arctic environment and its ecosystem in the knowledge that it too plays an important role in maintaining the global environmental balance. In 1996, they established the Arctic Council, a high-level intergovernmental forum designed to provide a mechanism to address the common concerns and challenges faced by the Arctic governments and the peoples of the Arctic. During the past twenty years, the Arctic Council has focused much of its work on sustainable development and environmental protection, and has provided the forum for the negotiation of two binding agreements among the eight Arctic states on search-and-rescue (2011) and oil pollution preparedness (2013).

    The Antarctic

    The Antarctic continental region extends over 14 million square kilometres and comprises 26 per cent of the world's wilderness area, representing 90 per cent of all terrestrial ice and 70 per cent of planetary freshwater. The Antarctic also extends to a further 36 million square kilometres of ocean. It has a limited terrestrial life and a highly productive marine ecosystem, comprising a few plants (e.g. microscopic algae, fungi and lichen), marine mammals, fish and hordes of birds adapted to the harsh conditions, as well as the krill, which is central to the marine food chain and upon which other animals are dependent.

  • Preface and Acknowledgements to the First Edition

  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp xxxi-xxxiv

  • Summary

    Principles of International Environmental Law marks the culmination of that aspect of my professional activities which was triggered by the accident at the Chernobyl nuclear power plant, on 26 April 1986. At that time I was a research fellow at the Research Centre for International Law at Cambridge University, working on international legal aspects of contracts between states and non-state actors, and not involved in environmental issues. With the active support of the Research Centre's Director, Eli Lauterpacht, I began to examine the international legal implications of the Chernobyl accident, which indicated that the legal aspects of international environmental issues were of intellectual and political interest, and still in an early phase of development. This led to several research papers, a book and various matters involving the provision of legal advice on international environmental issues. My interest having been aroused, the implications of environmental issues for public international law provided a rich seam which has sustained me for several years, and resulted in my founding, with James Cameron, what is now the Foundation for International Environmental Law and Development (FIELD). That, in turn, has provided me with the fortunate opportunity to participate in a number of international negotiations, most notably those preparatory to UNCED and the Climate Change Convention, and to develop an international legal practice which is varied, unpredictable, entertaining, often challenging and occasionally frustrating.

    This book, together with the accompanying volumes of international documents (Volumes IIA and IIB) and EC documents (Volume III), is intended to provide a comprehensive overview of those rules of public international law which have as their object the protection of the environment. I hope that it will be of some use to lawyer and non-lawyer alike, whether working for government, international organisations, non-governmental organisations and the private sector, or having an academic or other perspective. Its structure and approach reflect my belief that international environmental efforts will remain marginal unless they are addressed in an integrated manner with those international economic endeavours which retain a primary role in international lawmaking and institutional arrangements, and unless the range of actors participating in the development and application of international environmental law continues to expand.

  • 17 - Human Rights and International Humanitarian Law

  • from Part IV - Linkage Of International Environmental Law And Other Areas Of International Law
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 811-840

  • Summary

    INTRODUCTION

    With the advent of sustainable development as a key principle of international law, no area of international law operates in ‘clinical isolation’ from any other. This is particularly the case for international environmental law as issues of environmental protection are strongly interconnected with questions around social and economic development. This chapter considers the interrelationship of the environment with international human rights law and the laws governing war and armed conflict (international humanitarian law). The linkage of the environment with human rights and international humanitarian law has been an issue for international environmental law since the earliest stages of its development in the 1960s and 1970s, but has achieved greater prominence with increasing recognition of the close relationship between environmental protection and the realisation of human rights and the achievement of human security, particularly in the face of climate change threats. Acknowledging these trends, the 2015 Paris Agreement included – for the first time in a climate treaty – language on human rights and the concept of ‘climate justice’.

    The development of international human rights and international humanitarian law pre-dates international environmental law and provides a rich source of comparative experience. International environmental law equally raises many issues that will be familiar to human rights and international humanitarian lawyers. In the environmental context, questions related to minimum international standards and the role of individuals and other non-governmental organisations in the international legal process have raised analogous issues to those arising in international human rights and humanitarian law. The international legal issues are closely related, as is now reflected in the activities of human rights bodies. As UNCED highlighted, a key question at the interface of human rights and humanitarian law with the environment concerns the extent to which international environmental law should adopt an anthropocentric approach, based on the view that environmental protection is primarily justified as a means of protecting humans, rather than as an end in itself. The Rio Declaration endorses an anthropocentric approach, with Principle 1 stating that: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ Legal developments in other fora and contexts, however, reflect a greater environmental consciousness and suggest that the protection of the environment is often recognised on its own terms, and not simply a means of protecting humans.

Principles of International Environmental Law
  • 4th edition
  • Philippe Sands, Jacqueline Peel
  • With Adriana Fabra, Ruth MacKenzie
  • Published online:
    07 August 2018
    Print publication:
    01 March 2018
  • This new and fully updated edition of Principles of International Environmental Law offers a comprehensive and critical account of one of the fastest growing areas of international law: the principles and rules relating to environmental protection. Introducing the reader to the key foundational principles, governance structures and regulatory techniques, Principles of International Environmental Law explores each of the major areas of international environmental regulation through substantive chapters, including climate change, atmospheric protection, oceans and freshwater, biodiversity, chemicals and waste regulation. The ever-increasing overlap with other areas of international law is also explored through examination of the inter-linkages between international environmental law and other areas of international regulation, such as trade, human rights, humanitarian law and investment law. Incorporating the latest developments in treaty and case law for key areas of environmental regulation, this text is an essential reference and textbook for advanced undergraduate and postgraduate students, academics and practitioners of international environmental law.

  • 5 - Compliance: Implementation, Enforcement, Dispute Settlement

  • from Part I - The Legal And Institutional Framework
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 144-194

  • Summary

    INTRODUCTION

    Ensuring compliance by members of the international community with their international environmental obligations continues to be a matter of serious concern. This is reflected in the attention the issue received at UNCED, in the negotiation and implementation of environmental agreements, and in the growing number of environmental disputes brought before international judicial bodies. The relevance of environmental concerns to international peace and security was affirmed by the UN Security Council in January 1992, when its members declared that ‘nonmilitary sources of instability in the … ecological fields have become threats to international peace and security’. The response to those concerns has included the development of existing mechanisms for implementation, enforcement and dispute settlement (such as the specialised rules for arbitrating environmental disputes promulgated by the Permanent Court of Arbitration in 2001), as well as novel approaches such as the non-compliance mechanisms established under a number of environmental agreements, and the role given to the UN Compensation Commission over environmental claims.

    Of the reasons proffered for renewed efforts, at least three are especially relevant. First, it is apparent that states are taking on ever more international environmental commitments, of increasing stringency. Second, the growing demands on access to finite natural resources, such as freshwater and fish, provide fertile conditions for conflicts over the use of natural resources. And, third, as international environmental obligations increasingly intersect with economic interests, states that do not comply with their environmental obligations are perceived to gain unfair competitive advantage from non-compliance. Non-compliance is seen to be important because it limits the effectiveness of legal commitments, undermines the international legal process, and can lead to conflict and instability in the international order. It occurs for different reasons, and it is widely recognised that the underlying causes require further attention so that existing and new international legal obligations are crafted to ensure their effective implementation. At UNCED, attention was focused on mechanisms to prevent disputes and to resolve them peacefully when they arise. Subsequent efforts have reflected a desire to address enforcement and dispute settlement in a non-contentious and non-adversarial manner.

  • 18 - International Economic Law: Trade, Investment and Intellectual Property

  • from Part IV - Linkage Of International Environmental Law And Other Areas Of International Law
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 841-929

  • Summary

    INTRODUCTION

    The integration of economic and environmental aspects of international law has been an important aspect of international environmental law particularly since UNCED. Such integration was prompted in part by considerations of the relationship between differing environmental standards and economic competitiveness. Principle 4 of the Rio Declaration reflects this interdependence, providing that ‘in order to achieve sustainable development environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’. The theme of integration was central to the preparations for UNCED. Agenda 21 recognised that the international economy should provide a ‘supportive international climate for achieving environment and development goals’, and identified the following as objectives for the international community:

  • • making trade and the environment mutually supportive;

  • • encouraging macroeconomic policies conducive to environment and development; and

  • • providing adequate financial resources to developing countries and dealing with international debt.

    • This chapter considers the international legal aspects of these issues. It is divided into three sections. The first discusses the relationship between international trade and environmental protection, and the application of international rules of competition law to environmental issues. The second examines the relationship between protection of the environment and rules of international law for the promotion of foreign investments found in investment treaties – bilateral and multilateral – which seek to protect foreign investments against certain governmental acts, in particular, expropriation and unfair treatment. The final section concerns intellectual property rights and the extent to which they govern the development of technologies which may be considered harmful to the environment. It also canvasses the intersection between intellectual property rights and indigenous traditional knowledge in the context of biodiversity conservation.

    One of the consequences of an emphasis on greater integration of economics and the environment has been to bring together two very different groups of international legal practitioners who have traditionally had very little to do with one another. International economic law in the past had been seen as a separate, self-contained field, dominated by the principles and ideology of free trade and economic development. Over time, environmentalists and others have challenged the dominance of such ideals and particularly their utility to achieve other international goals such as environmental protection.

  • 8 - Climate Change

  • from Part II - Principles And Rules Establishing Standards
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 295-336

  • Summary

    INTRODUCTION

    In the first three editions of this book, the problem of climate change and the international legal arrangements developed to address it, were included in the chapter on atmospheric protection. Today, however, international law on climate change constitutes a vast field in its own right. It incorporates not only regulation of atmospheric pollution resulting from the release of greenhouse gases from human activities, but also a range of other issues, including impacts and adaptation, loss and damage, finance, deforestation and forest degradation (REDD+), carbon markets, and linkages with other areas of international law, such as human rights and trade. Moreover, with the conclusion and entry into force of the 2015 Paris Agreement, the structures and processes of rules relating to climate change differ significantly from certain other areas of international environmental law. The Paris Agreement signals a tectonic shift, away from a top-down international standard-setting approach (as in the ozone regime), to a bottom-up regulatory model by which states determine their national contributions to the global response to climate change.

    This chapter provides an introduction to the field of international climate change law, with a focus on the requirements of the Paris Agreement. It begins with a discussion of the climate change problem, summarising the latest scientific findings and highlighting some of the complexities of the issue that have precipitated a substantially different international legal response to that seen in other environmental areas. A brief overview is then provided of the two treaty instruments that preceded, and underpin, the 2015 Paris Agreement: the 1992 Framework Convention on Climate Change and the 1997 Kyoto Protocol. While important in putting climate change on the international agenda, and effecting a shift in consciousness, these treaties failed to slow emissions growth sufficiently or bring about the substantial reorientation in states’ economic policies concerned with energy production, industrial activity, transportation and forestry, necessary to achieve a sustainable climate future.

  • 10 - Biological Diversity

  • from Part II - Principles And Rules Establishing Standards
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 384-454

  • Summary

    INTRODUCTION

    The terms ‘biological diversity’ or ‘biodiversity’ are of relatively recent usage in international law. Until the 1980s, international instruments tended to address ‘wildlife’ or ‘wild fauna and flora’, and focused on species and habitats. ‘Biodiversity’ is a more inclusive term and can be considered in relation to three hierarchical categories which describe different aspects of living systems measured in different ways: genetic diversity; species diversity; and ecosystem diversity.

    However measured, there is a scientific consensus that biodiversity is being lost. The 2015 Global Forest Resources Assessment indicated that 129 million hectares of forest have been lost since 1990, although the net rate of global deforestation slowed in that period. The 2010 third Global Biodiversity Assessment (GBO 3) recorded that more than 95 per cent of North American grasslands have been lost, and that savannah and grassland have suffered severe declines elsewhere. The GBO 3 also noted that terrestrial habitats have become highly fragmented, threatening the viability of many species and ecosystem services. The Millennium Ecosystem Assessment reported that about 20 per cent of the world's coral reefs have been destroyed and another 20 per cent degraded. In relation to species populations, the GBO 3 suggested that the population of wild vertebrate species fell by an average of 31 per cent globally between 1970 and 2006, with particularly severe declines in the tropics and in freshwater ecosystems. Much remains unknown about biodiversity – only a fraction of the species thought to exist have been described, and, as the Millennium Ecosystem Assessment acknowledged, ‘the extent of extinctions of undescribed taxa is unknown, the status of many described species is poorly known, it is difficult to document the final disappearance of very rare species, and there are time lags between the impact of a threatening process and the resulting extinction’.

    Reasons for conserving nature and biodiversity are essentially threefold. First, biodiversity provides an actual and potential source of biological resources including, for example, for use as food and feed, as well as for pharmaceutical, industrial and other applications. Second, biodiversity contributes to the maintenance of the biosphere in a condition that supports human and other life. This concept of ‘ecosystem services’ provided by biodiversity has become central to contemporary policy debates on the issue. Third, biodiversity conservation may be based on ethical, intrinsic, aesthetic and cultural considerations.

  • 1 - The Environment and International Society: Issues, Concepts and Definitions

  • from Part I - The Legal And Institutional Framework
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 3-20

  • Summary

    INTRODUCTION: THE ENVIRONMENTAL CHALLENGE

    It is widely recognised that the planet faces serious environmental challenges that can only be addressed through international cooperation. Climate change and ozone depletion, loss of biodiversity, toxic and hazardous pollution of air and sea, pollution of rivers and depletion of freshwater resources are among the issues that international law is called upon to address. Since the mid 1980s, the subject of international environmental law has emerged as a discrete field of public international law, although one that is closely related to many other areas. The conditions that have contributed to the emergence of international environmental law are easily identified: environmental threats are accompanied by a recognition that ecological interdependence does not respect national boundaries and that issues once considered to be matters of national concern have international implications – at the bilateral, subregional, regional or global levels – that can often only be addressed by international cooperation, including by law and regulation.

    The growing number of international environmental issues is evidenced by the large body of principles and rules of international environmental law that apply bilaterally, regionally and globally, and reflects international interdependence in a ‘globalised’ world. Progress in developing international legal control of activities has been gradual and piecemeal, and too reactive to particular incidents or the availability of new scientific evidence (such as the Chernobyl accident or the discovery of the ‘hole’ in the ozone layer). It was not until the late nineteenth century that communities and states began to recognise the transboundary consequences of activities affecting shared rivers or leading to the destruction of wildlife, such as fur seals, in areas beyond national jurisdiction. In the 1930s, the transboundary consequences of air pollution were acknowledged in the litigation leading to the award of the arbitral tribunal in the Trail Smelter case. In the 1950s, the international community legislated on international oil pollution of the oceans. By the 1970s, the regional consequences of pollution and the destruction of flora and fauna were obvious, and by the late 1980s global environmental threats had become a part of the international community's agenda as scientific evidence identified the potential consequences of ozone depletion, climate change and loss of biodiversity.

  • Preface and Acknowledgements to the Third Edition

  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp xxvii-xxviii

  • Summary

    This third edition of Principles of International Environmental Law provides further confirmation that international environmental law is ‘well established’ and ‘a central part of the international legal order’, as the second edition already recognised. In the intervening decade, our appreciation of the complexity of environmental problems, and their deep interlinkages with other issue areas, particularly in the economic field, has grown. In response, international environmental law has also developed increasing complexity, although largely through the consolidation and expansion of existing regimes rather than through the creation of new instruments. Case law on environmental and natural resource issues continues to be a burgeoning area of international litigation, confronting practitioners and judges with difficult new questions such as how to approach science and expert evidence in factually complex and technical disputes. Despite the myriad of legal developments, the most complex environmental problems facing international law remain some of the most pressing, particularly, climate change, marine pollution and biodiversity loss. In a certain sense, the subject of international environmental law is about to meet the point at which the rubber hits the road: can it deliver real protections, or will its impact be only marginal and cosmetic?

    Like the previous editions, this edition is intended to provide a comprehensive overview of those rules of public international law that have as their object the protection of the environment. We have sought to state the law as of July 2011. Necessarily, given the vast breadth of the subject and the level of detail now available on some specific topics (climate change, fisheries, trade, biodiversity are leading examples here), the book's account of the subject area cannot be exhaustive. We have, however, sought to improve the book's coverage of key areas such as atmospheric protection and climate change, oceans and fisheries and biodiversity. In respect of the latter two topics, the book has benefited enormously from the serious contributions made by the expert and experienced authors of these revised chapters, Adriana Fabra (Chapter 9) and Ruth MacKenzie (Chapter 10), to whom we extend our deep appreciation. We have also introduced a more critical dimension to our analysis of developments in international environmental law, including the case law, and sought to tie this analysis to central themes or challenges for the field, detailed in Chapter 1.

  • 14 - Environmental Impact Assessment

  • from Part III - Techniques For Implementing International Principles And Rules
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 657-681

  • Summary

    INTRODUCTION

    Environmental impact assessments emerged internationally after the 1972 Stockholm Conference and are now an established international and domestic legal technique for integrating environmental considerations into socio-economic development and decision-making processes. An environmental impact assessment (EIA) describes a process that produces a written statement to be used to guide decision-making, with several related functions. First, it should provide decision-makers with information on the environmental consequences of proposed activities and, in some cases, programmes and policies, and their alternatives. Second, it requires decisions to be influenced by that information. And, third, it provides a mechanism for ensuring the participation of potentially affected persons in the decision-making process.

    Since environmental impact assessments were first established in the domestic law of the United States under the 1969 National Environmental Policy Act, they have been progressively adopted in a very large number of national legal systems. Internationally, environmental impact assessments are required under numerous international conventions, in the requirements of various multilateral development banks, and in various non-binding instruments adopted at the regional and global levels. Principle 17 of the Rio Declaration states that:

    The mandatory language of Principle 17 confirmed that environmental impact assessments are required by general international law, particularly in respect of environmentally harmful activities which may have transboundary consequences, in order to meet a state's obligation to ensure that activities within its jurisdiction and control ‘respect the environment of other States or of areas beyond national control’. The language of Principle 17, however, is general, and does not provide the detail as to the minimum requirements that states need to satisfy.

    To a certain extent the details relating to common approaches are reflected in the instruments described in this chapter and in the international cases which have arisen since Principle 17 was adopted: New Zealand's application to the ICJ concerning the resumption by France of underground nuclear testing (1995), the case concerning the Gabčíkovo–Nagymaros project (1997), the dispute between Ireland and the United Kingdom concerning the MOX plant (2001), the Pulp Mills case (2010), the ITLOS advisory opinion on Responsibilities and Obligations in the Area (2011), the ICJ decision in the Costa Rica v. Nicaragua cases (2015) and the recent South China Sea arbitration (2016).

  • 16 - Liability for Environmental Damage

  • from Part III - Techniques For Implementing International Principles And Rules
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 735-808

  • Summary

    INTRODUCTION

    General principles of international law imposing liability on actors for their illegal acts, or for the adverse consequences of their lawful activities, are relatively well developed at a general level, and are also reflected in the Articles on State Responsibility adopted by the International Law Commission (ILC) in 2001. In relation to environmental damage, however, the liability rules are still evolving and are in need of further development. Environmental damage refers here to damage to the ‘environment’, which has generally been defined in treaties and other international acts to include four possible elements: (1) fauna, flora, soil, water and climatic factors; (2) material assets (including archaeological and cultural heritage); (3) the landscape and environmental amenity; and (4) the interrelationship between the above factors. Most legal definitions of environment do not, therefore, include people and their property, although this is changing as a result of the increasing intersection of international environmental law with the area of human rights protection.

    Liability rules at the domestic or international level serve a variety of purposes. They may be a form of economic instrument that provides an incentive to encourage compliance with environmental obligations. They may also be used to impose sanctions for wrongful conduct, or to require corrective measures to restore a given environmental asset to its pre-damage condition. Finally, they may provide a technique for internalising environmental and other social costs into production processes and other activities in implementation of the polluter pays principle.

    States have long recognised the role of liability for environmental damage, as well as the inadequacies that exist. Principle 22 of the Stockholm Declaration recognised gaps and called on states to ‘co-operate to develop further the international law regarding liability and compensation for victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such states to areas beyond their jurisdiction’. The 1982 World Charter for Nature did not directly address liability, although it called for degraded areas to be rehabilitated and for individuals to have access to means of redress when ‘their environment has suffered damage or degradation’.

  • 4 - International Lawmaking and Regulation

  • from Part I - The Legal And Institutional Framework
  • Philippe Sands, University College London, Jacqueline Peel, University of Melbourne
  • With Adriana Fabra, Universitat de Barcelona, Ruth MacKenzie, University of Westminster
  • Book:
    Principles of International Environmental Law
    Published online:
    07 August 2018
    Print publication:
    01 March 2018, pp 101-143

  • Summary

    INTRODUCTION

    International environmental lawmaking and regulation draws both from general sources of international law, and regulatory techniques developed in domestic environmental legal systems. This chapter identifies the sources of international legal obligation pertinent to environmental issues, and the regulatory techniques that have been adapted from domestic models to give effect to these obligations.

    International law is traditionally stated to comprise ‘the body of rules which are legally binding on states in their intercourse with each other’. These rules derive their authority, in accordance with Article 38(1) of the Statute of the International Court of Justice (ICJ), from four sources: treaties, international custom, general principles of law, and subsidiary sources (decisions of courts and tribunals and the writings of jurists and groups of jurists). It is to these sources that international courts look in determining whether a particular legally binding principle or rule of international environmental law exists. The list of sources identified in Article 38(1) does not wholly reflect the sources of obligation, broadly understood, which have arisen in international environmental law. A list of sources of international environmental law is more properly reflected in the list proposed by the International Law Commission (ILC) in 1989, which included those identified in Article 38(1) as well as binding decisions of international organisations, and judgments of international courts or tribunals.

    Beyond these sources of ‘hard law’, which establish legally binding obligations, there are also so-called rules of ‘soft law’, which are not binding per se but which in the field of international environmental law can play an important role; they point to the likely future direction of formally binding obligations, by informally establishing acceptable norms of behaviour, and by ‘codifying’ or possibly reflecting rules of customary law. It is also worth recalling that, although the rules of public international law primarily govern relations between states, it is now widely accepted that states are no longer the only subjects of international law, and that the rules of international law can, and do, impose obligations upon other members of the international community, in particular international organisations and, to a more limited extent, non-state actors, including individuals and corporations.

Page 108 of 235