Lecture 3 - Principles and Instruments of Environmental Law and Policy

Question 1

Sources of International Law (The 4 in Article 38(1) of International Court of Justice)

Answer 1

(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states
(b) international custom, as evidence of general practice accepted as law
© general principles of law regonized by civilized nations
(d) subject to provisions of article 59, judicial decisions an teachings of most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law

Question 2

Envrionmental Principles of Law

Answer 2

Policy ideas concerning how environmnetal protection and sustainable development ought to be pursued
- Ambitious, open-ended, open to interpretation but the open nature allows us to work with them in different contexts settings and carry different meanings and multiple roles
- Divided into groups; inconsistently labeled
- Various legal status (usaully soft law agreements)
- E.g. Precautionary principle and polluter pays principle

Question 3

Difficulty of ‘Principles’

Answer 3

Open-ended nature that can work for or against us; becomes interesting when you look at jurisdictions at how these principles are enshrined in law

Question 4

Legal Status of Environmental Principles of Law

Answer 4

• Various legal status depending on source & content
• Some set legal obligations, others serve as interprative or procedural
• In preambles and declarative parts of treaties
• No global general instrument; must look at sources reflected in state practice and court decisions
• They help make envt’l law resemble other law fields, especially when used in judicial reasoning

Question 5

Where to find environmental Principles of Law?

Answer 5

Across legal systems & jurisdictional levels; rooted in int’l law and policy and national and regions
- Treaties (ent’l principles are mainly soft law)
- National & regional laws

Question 6

Soft Law’ and ‘Hard Law’

Answer 6

Soft law still has weight just allows for greater buy-in of states
- When principles are soft law then more states will abide with them (or at least not oppose them) and they can be more dynamic

Question 7

Soverignty Principle

Answer 7

General Assembly Resolution 1803 of Dec. 1962: “Permanent sovereignty over natural resources”
- Recognised in int’l law and binding effects
- Basis to reduce nature into resources and apply questionable extraction approaches
- Hand in hand w no harm principle

Question 8

Common but Differentiated Responsibilities Principle (CBDR)

Answer 8

CBDR is where all nations have to play their part in envrionmental protection and carbon abatement, but highly developed nations should do more in terms of abatement as they are more technologically advanced and they have benefitted more from fossil fuels.

Note: CBDR did not sit well with developed nations as they beleived the burden was unfairly shared towards them. Annex 1 nations (rich countries) eventually killed the Kyoto Protocol with CBDR being one of the main reasons. Paris did not differentiate

Question 9

Cooperation Principle

Answer 9

To act in good faith to ensure relations of countries are maintained
- Principle 24 of Stockholm Declaration - int’l matters should be handled cooperatively across countries
- Principles 7 of Rio Declaration - States shall co-operate (CBDR)
- Principle 27 of Rio Declaration

Question 10

Principle of Sustainable Development

Answer 10

Development that meets need of present without compromising ability of future generations to meet their own needs
- Intra and Inter generational aquity
- Very anthropocentric (all about meeting human needs)

Question 11

Polluter Pays Principle

Answer 11

• This principle is fundamentally about economic responsibility.
• It states that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment.
•It’s an economic principle aimed at internalizing environmental costs.
- Incorporated into regional and national law in EU, France, Ghana, Zimbabwe

Question 12

Precautionary Principle

Answer 12

If serious threat of irreversible damage, lack of scientific certainty shouldn’t be used as a reason for postponing cost-effective measures to prevent ent’l degradation
- Newest principle
- Tries to grasp w high-risk Dming and scientific uncertainty

Issue: What is a ‘serious threat’ and what has to be cost-effective?

Question 13

Common Concern Principle

Answer 13

Issues so important and wide-reaching that they are considered a concern of all countries, even if the problem only originates or primarily affects a few.
- Areas that are the common concern of humanity, not managed by any single nation.
- Questions sovereignty principle; have sovereignty but still common conern
- E.g. Climate change, biodiversity, etc.

Question 14

Inter and Intra-Generational Equity Principle

Answer 14

-Inter-generational equity: defines the rights and obligations b/w present and future generations regarding use and enjoyment of natural resources. Requires present gen to pass on resources to future gens in no worse condition
- Intra-generational equity: Addresses disparities b/w states in present gens, taking forms such as financial assistance and principle of CBDRRC (common but differentiated responsibilities and respective capabilities). Basically to address power in-balances across different nations and soceities across the world.

Question 15

Emerging Principle of Sustainable Use

Answer 15

• A new way to reinterpret and balance concept of permanent sovereignty over natural resources
• The use and management of resources in a way that promotes economic and social development without over exploiting natural resources or causing irreversible environmental harms.
• More important but isolated cases may not be enough to instigate the major reforms needed to halt ecological deterioration

Question 16

Principle of Participation

Answer 16

All parties should have a say and should be able to influence climate proceedings, frameworks, treaties and laws.
Four pillars:
1. Access to information
2. Access to participation in environmental dming
3. Access to justice in ent’l matters
4. Protection for ent’l defenders

Question 17

Integration Principle

Answer 17

Environmnetal protection should be integrated into all areas of Dming, not treated as separate issue

Question 18

Types of Intstruments Supporting Legal Principles

Answer 18

-Market-Based: Charges & taxes, subsidies, quotas, property rights, etc.
-Command & Control: Permits & licenses, process standings, planning regulations, ent’l quality standards

Question 19

Ent’l Principles: Case Law of European Courts

Answer 19

-Shaped by unique governance of EU across EU member states
-Ongoing ambiguity ab legal status and requirements over other EU laws
-Includes preventative principle, rectification at source, precautionary principle, polluter-pays

Question 20

Case Law of New South Wales (NSW): Ecologically Sustainable Development Principles

Answer 20

-Starting point wasn’t law but in the courts and then took legal status from there
-Some overlaps b/w EU and NSW but NSW doesn’t call it ‘environmental principles’ but ‘Ecologically Sustainable Development Principles’
-Versions of polluter pays, precautionary, integration

Question 21

Environmental Principles in Brazil’s Constitution

Answer 21

-Higher ranking law (Constitution) with principles extractable
-Integration into high level of ent’l protection also polluter pas, precaution, participation, etc.
- Brazil signed SDGs and these goals exist internationally as soft law –> SDGs are normative in Brazil’s law; lots of legislation in Constitution which relate to SDGs

Question 22

Case Study of Brazil’s Sao Francisco Basin

Answer 22

-Holds world’s water and Amazon has most freshwater (unevenly distributed)
-Hydropower is main source of electricity production (90%) but reducing to other sources like thermal power that are less clean
-Lots of water has to moved to semi-arid region to make up for lack of water
-Electricity governed on national level but water on local level
–> With multiple stakeholders on different levels need framework to make interconnected decisions
- Many questions on compliance w principles like intra- and inter-generaitonal principle (e.g. many local people on river were left out of decisions)

Question 23

Advanced Sustainable resource Management through Balancing Legal Principles

Answer 23

Need interaction b/w substantive dimension <-> institutional dimension <-> procedural dimension
- Judges need to start working w collision of principles and none were ablet o mention single principle in mind when making decision
- Need to understand balance of legal principles that accounts for evidence and normative element of principle itself (bring those two together; weight of decision on which principle should take precedence over another) –> what kind of evidene are you bringing to discussion (scientific or measurement or voices of community, etc.)
-When is it a conflict that requires everyone raound the table and when it’s that you need 2nd degree institution so everyone can enter
-Procedural dimension must be inclusive

Question 24

Ecologically Sustainable Development Principles

Answer 24

its five principles. 1.internalisation of environmental costs 2. precautionary principle . 3.polluter pays 4. integration-5.Conservation of biological diversity and integrity

Question 25

Which of the following statements accurately compares and constrats the polluter pays principle with the precautionary principle?

Answer 25

d) The polluter pays principle is focused on economic incentives, while the precautionary principle is focused on scientific uncertainty - Pollution pays is economic tool, aiming to ensure costs of pollution are borne by those who cause it rather than society at large; creating financial incentives for better environmental behavior - Precautionary principle is how we make decisions when faced w scientific uncertainty; suggests taking protective action before complete scientific proof of a risk —> more about risk mgmt in face of unknown - Both principles are important in environmental law and policy but address different aspects of environmental protection - Polluter pays deals w known impacts and environmental consequences - Precautionary helps guide DM-ing when full extent of potential harm is unknown

Question 26

How has the principle of common but differentiated responsibilities (CBDR) influenced the design of international climate change agreements?

Answer 26

A) It has led to identical emission reduction targets for all countries, regardless of their level of development. B) It has resulted in developing countries bearing the primary financial burden for climate change mitigation and adaptation. C) It has informed the creation of different categories of countries with varying levels of obligations, such as Annex I and non-Annex I countries in the Kyoto Protocol. D) It has eliminated the need for financial and technology transfer mechanisms from developed to developing countries. E) It has created a system where only developed countries are required to take action on climate change.

Question 27

How has the principle of common but differentiated responsibilities (CBDR) evolved in its application from the Kyoto Protocol to the Paris Agreement?

Answer 27

A) It has been abandoned in favour of uniform obligations for all countries B) It has shifted from strict categorization to a more flexible approach of self-determined contributions C) It now applies only to developing countries, exempting them from all climate action D) It has been replaced by the principle of historical responsibility E) It now requires developed countries to take on all climate action responsibilities

Question 28

Why is it problematic to assume that environmental principles are universal legal concepts that simply translate from international law to domestic legal systems?

Answer 28

A. Environmental principles are too vague to have any legal meaning at all B. Domestic legal systems are completely isolated from international influences C. Environmental principles take on distinct legal roles shaped by the specific legal cultures in which they operate D. International environmental law is not developed enough to influence domestic systems E. Courts in different countries deliberately interpret environmental principles differently to assert their independence