PIL - Environmental Law

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16 Terms

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Timeline: First steps to recognize the relevance of Environmental law

  • 1972 Stockholm Conference: UN Environment Program (UNEP)

  • -  1985 Vienna Convention on the Protection of the Ozone Layer

  • -  1987 Montreal Protocol and 1992 Convention on Biodiversity

  • -  UN Commission on Sustainable Development, 1992

  • -  1994 – Global Environment Facility

  • -  Convention on Environmental Impact Assessment in a Transboundary Context, 1991

  • -  Healthy environment as a Human Right

  • -  Convention on Access to Information, Public Participation in Decision-making and

    Access to Justice in Environmental Matters, (the Aarhus Convention), 1998

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Environmental damage and State responsibility

Duties of the State:

  • Convention on the Law of the Sea, 1982
    Article 192: General obligation States have the obligation to protect and preserve the marine environment.

  • -  Principle 21, Stockholm Declaration, 1972
    “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”

  • -  ICJ – 1995, Examination of Par. 63 of the Nuclear Tests
    Case 1974 : “without prejudice to the obligations of states to respect and to protect the environment.”

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Absolute Responsibility

  • Implies that a state is automatically liable for harm caused by its actions, regardless of fault or negligence.
    If it is applicable in practice?

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Due Diligence:

A state must take all reasonable measures to prevent harm to other states, but it is only responsible if it fails to act with due care.
Defined by
Art 194 Law of the Sea Convention, 1982

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Trail Smelter Case:

  • Background: A dispute between the United States and Canada (1938 and 1941) over air pollution from a Canadian smelter causing harm to US farmland.

  • -  Standard Applied: The tribunal ruled that the injury must be established by “clear and convincing evidence.”

  • -  Meaning: This is a high standard of proof, requiring the injured party to demonstrate with strong, credible evidence that the harm occurred and that it is attributable to the other state.

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Risk of damage”: The effects of pollution:

  • -  Defined by Article 1: DEFINITIONS For the purposes of the present Convention:

  • -  (a) "Air Pollution" means the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious e\ects of such a nature as to endanger human

    health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment, and "air pollutants" shall be construed accordingly;

  • -  Convention on Long-range Transboundary Air Pollution , 1979

  • -  Enlargement of the understanding in various consecutive treaties:

  • -  The understanding that general environmental injury not always has strictly material form

  • -  Liability for Damage caused by Private Persons:

  1. Responsibility of the State for an act its o\icials causing to foreign states

  2. Sanctions for environmental damages to third states caused by nationals

    (according to various treaties)

  3. Authorization procedures and State responsibility

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Prevention of Transboundary Harm from Hazardous Activities:

International Law Commission, 1973 to 1977

  • -  International liability for injurious consequences arising out of acts not prohibited by international law

  • -  A State can be responsible for harmful e\ects of acts that by themselves are not considered a breach of international law.

  • -  Draft articles on Prevention of Transboundary Harm from Hazardous Activities, 2001

o Preventionoftransboundaryharm,
o Cooperationtopreventsignificantharmandreducerisk,
o Theexerciseofregulatorycontrolbystatesofactivitiesontheirterritorythrough

prior authorizations,
o Environmentalimpactassessment, o Notification,and
o Consultation

- Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, 2006

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International Cooperation Relevant Principles:

  • Use of Territory: early and immediate information
    Basel Convention 1989, Rio Declaration 1992, ILA Montreal Rules
    Lac Lanoux Arbitration case between France and Spain, 1957
    A duty that might be a\ected by the creation of a potential source of new or increasing pollution:
    Article 204 Convention on the Law of the Sea, 1982 etc.

  • -  Environmental Impact Assessments: Convention on Environmental
    Impact Assessment in a Transboundary Context
    , 1991, Pulp Mills case, 2010

  • -  Precautionary Principle: Rio Declaration N 15 “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-e\ective measures to prevent environmental degradation.”

  • -  Sustainable Development: Rio Declaration : Principle 3, UN 2030
    Development Agenda Goals (6, 13,14),
    The Climate Change Convention (article 3)

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The Polluter Pays

Principle 16 Rio Declaration, International Convention on Oil Pollution Preparedness, Response and cooperation 1990, Convention on the Transboundary E>ects of Industrial Accidents, 1992. Have to pay for the damage, loss.

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Air pollution:

Pollution:
1. Presence of
substances and heat in environmental media (air, water, land) whose nature, location, or quantity produces undesirable environmental effects;
2.
Activity that generates pollutants.

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Atmospheric pollution

Air pollution is the presence of contaminant or pollutant substances in the air that do not disperse properly and that interfere with human health or welfare or produce other harmful environmental effects. (OECD)

  • Geneva Convention on Long Range Transboundary Air Pollution 1979

  • -  Montreal Rules of International Law Applicable to Transboundary pollution, 1982

  • -  Trail Smelter Case, 1941: trandborder case canada

  • -  Sofia Protocol concerning the Control of Emissions of Nitrogen Oxides or their

    Transboundary Fluxes, 1988 (UNECE)

  • -  Oslo Protocol on Further Reduction of Sulphur Emissions, 1994 (Periodic review)

  • -  Stockholm Convention on Persistent Organic Pollutants, 2001

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Water pollution

  • International Watercourse waters: “systems of surface and ground waters situated in more than one state”

  • -  Helsinki Rules on the Uses of the International Rivers, ILA 1966

  • -  Convention on the Protection and Use of Transboundary Watercourses and

    International Lakes, UNECE, Helsinki, 1992

  • -  Convention on the Law of the Non-Navigational Uses of International Watercourses,

    1997

  • -  Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ 1997

  • -  Marine pollution: Shipping, dumping sea, activities on the seabed, pollution originating on

    the land, responsibility in cases of pollution from the ships

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Ultra-hazardous waste

involving an extremely large risk (as of loss or harm): extremely or extraordinarily hazardous: chemicals

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Nuclear safety:

  • Chernobyl, 1986 and Fukushima, 2011

  • -  Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under

    Water, 1963

  • -  Nuclear Non-Proliferation Treaty, 1968

  • -  New Zealand vs France Case, ICJ

  • -  International Atomic Energy Agency: standards, guidelines etc. (Practice case)

  • -  Convention on Assistance in Cases of Nuclear Emergency, 1986

- Convention on Nuclear Safety, 1994

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Outer space:

To Whom belongs the Moon?

  • Outer Space Treaty 1967, (the exploitation for the benefits to all the states)

  • -  Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies,

    1979

  • -  Major space hazard: Buenos Aires International Instrument on the Protection of the

    Environment from Damage Caused by Space Debris, ILA 1994

  • -  Permanent Court of Arbitration: The Optional Rules for Arbitration of Disputes Relating to

    Outer Space Activities, 2011

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Climate change:

  • Scientific Problems

  • -  Ozone Layer:

    o Vienna Convention for the Protection of the Ozone Layer,1985
    o Montreal Protocol on Substances that Deplete the Ozone Layer,1987

    o Helsinki Declaration on the protection of the ozone layer,1989

  •  Climate Change:

o UN Framework Convention on Climate Change,1992/UNFCCC/

o Conference of the Parties

a) 1997 Kyoto Protocol
b) Paris Agreement, 2015
The aim of the agreement is to decrease global warming described in its Article 2, "enhancing the implementation" of the UNFCCC