Precautionary Rights And Duties Of States

This study concerns the definition and implementation of the precautionary principle under general, or customary, international law. A search for patterns and common denominators in state practice resulted in the following definitions of a right and a duty which states are deemed to have under contemporary customary international law. RIGHT: Wherever, on the basis of the best information available, there are reasonable grounds for concern that significant harm to the environment may occur, effective and proportional action to prevent and/or abate this harm may be taken, including in situations of scientific uncertainty regarding the cause, extent and/or probability of the potential harm. DUTY: Wherever, on the basis of the best information available, there are reasonable grounds for concern that serious and/or irreversible harm to the environment may occur, effective and proportional action to prevent and/or abate this harm must be taken, including in situations of scientific uncertainty regarding the cause, extent and/or probability of the potential harm. Whereas all kinds of uncertainty and harm (both within and beyond the limits of national jurisdiction) are covered by the scope of this right and duty, they are triggered only when particular levels of gravity ('significant' or 'serious or irreversible' harm) and likelihood ('reasonable grounds for concern') are reached. When there are no reasonable grounds for concern, e.g. in case of a purely hypothetical scenario, or when anticipated impacts are not adverse or significant, the precautionary principle does not apply. Notably, action under the principle is taken in spite of any uncertainty, not because of it. Accordingly, when thresholds are crossed the right and the duty apply whether there is uncertainty or not. The action taken by states must be effective and proportional. Thus, a course of action must be adopted which effectively safeguards the threatened part of the environment and corresponds to the dimensions (gravity x likelihood) of the risk involved. More in particular, action must be taken which (a) is timely; (b) is tailored to the circumstances; (c) does not replace one risk with another of equal or greater size; (d) is regularly reviewed and maintained as long as necessary to prevent the harm in question, but not longer; and (e) in case of doubt regarding the aptness of different measures, errs on the side of environmental protection. As long as it conforms to these criteria, any measure can be a precautionary measure. Under general international law the precautionary principle does not automatically place the onus of proving the acceptability of potentially harmful activities on their proponents. The principle has lowered the standard of proof but has not 'reversed' the traditional burden. The 'reversed onus' nevertheless plays an important role in the implementation of the principle in that states often exercise their right or duty to take precautionary action by prohibiting activities until proof of their relative harmlessness has been delivered by their initiators. Finally, although the primary purpose of the precautionary principle is to protect the environment, including for its own sake, socio-economic considerations are part of its rationale and make-up as well. There is, however, no separate requirement for precautionary measures to be cost-effective and traditional cost-benefit analysis has no part to play in the principle's implementation.

This work makes clear what it means that the precautionary principle represents customary international law. Through the analysis of state practice regarding this principle of international environmental law, it answers crucial questions concerning the conditions triggering a right or duty to take precautionary action; the nature and content of such action; the issue areas to which the principle applies; the allocation of the burden of proof; and the role of socio-economic factors. Ultimately, it details what it takes to act in conformity with the precautionary principle under general international law.

This text explores the state of affairs in 2003 regarding the implementation of the principle in the law of the sea in different areas: like, pollution of the marine environment, conservation and management of living marine resources and transboundary transports of radioactive and hazardous wastes.

The second edition of this leading reference work provides a comprehensive discussion of the dynamic and important field of international law concerned with environmental protection. It is edited by globally-recognised international environmental law scholars, Professor Lavanya Rajamani and Professor Jacqueline Peel, and features 67 chapters authored by 76 renowned experts in their fields. The Handbook discusses the key principles underpinning international environmental law, its relevant actors and tools, and rules applying in its substantive sub-fields such as climate law, oceans law, wildlife and biodiversity law, and hazardous substances regulation. It also explores the intersection of international environmental law with other areas of international law, such as those concerned with trade, investment, disaster, migration, armed conflict, intellectual property, energy, and human rights. The Handbook sets its discussion of international environmental law in the broader interdisciplinary context of developments in science, ethics, politics and economics, which inform the way in which environmental rules are made, implemented, and enforced. It provides an introduction to the foundations of international environmental law while also engaging with questions at the frontiers of research, teaching, and practice in the field, including the role of Global South perspectives, the contribution made by Earth jurisprudence, and the growing role of a diverse range of actors from indigenous peoples to business and industry. Like the first edition, this second edition of the Handbook is an essential reference text for all engaged with environmental issues at the international level and the applicable governance and regulatory structures.

"This publication contains the 'Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework', which were developed by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. The Special Representative annexed the Guiding Principles to his final report to the Human Rights Council (A/HRC/17/31), which also includes an introduction to the Guiding Principles and an overview of the process that led to their development. The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011."--P. iv.

The interplay between procedure and substance has not been a major point of contention for international environmental lawyers. Arguably, the topic’s low profile is due to the mostly uncontroversial nature of the field’s distinction between procedural and substantive obligations. Furthermore, the vast majority of environmental law scholars and practitioners have tended to welcome the procedural features of multilateral environmental agreements and their potential to promote regime evolution and effectiveness. However, recent developments have served to put the spotlight on certain aspects of the procedure substance topic. ICJ judgments revealed ambiguity on aspects of the customary law framework on transboundary harm prevention that the field had thought largely settled. In turn, in the treaty context, the Paris Agreement’s retreat from binding emissions targets and its decisive turn towards procedure reignited concerns in some quarters over the “proceduralization” of international environmental law. The two developments invite a closer look at the respective roles of, and the relationship between, procedure and substance in this field and, more specifically, in the context of harm prevention under customary and treaty law.

The global transmission of infectious diseases has fuelled the need for a more developed legal framework in international public health to provide prompt and specific guidance during a large-scale emergency. This book develops a means for States to take advantage of the flexibilities of compulsory licensing in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which promotes access to medicines in a public health emergency. It presents the precautionary approach (PA) and the structure of risk analysis as a means to build a workable reading of TRIPS and to help States embody the flexibilities of intellectual property (IP). The work investigates the complementary roles of the World Health Organization (WHO) and the World Trade Organization (WTO) in order to promote the harmonisation of the precautionary approach in relation to the patenting of crucial pharmaceutical products. By bringing together international trade law and intellectual property law Phoebe Li demonstrates how through the use of risk analysis and the precautionary approach, States can still comply with their legal obligations in international law, while exercising their sovereignty right in issuing a compulsory licence of a drug patent in an uncertain public health emergency. This book will be of great interest to students and academics of medical and healthcare law, intellectual property law, international trade law, and human rights law.

This challenging volume contains articles by a wide variety of well-known scholars and practitioners, and deals with human rights, international humanitarian law, international criminal law and humanitarian assistance, as well as other areas of international law relating to the protection of humanity. These are topics to which Flavia Lattanzi, in whose honour the volume is being published, has made an outstanding contribution and to which she has given her determined and unrelenting professional and personal commitment. As a former Professor at the Universities of Pisa, Sassari, Teramo and Roma Tre and as Judge ad litem at the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia, she has adhered constantly to a number of important principles, as reflected in the research contained in this volume. They include the firm conviction that respect for human rights is an indispensable precondition for durable peace; the notion that grave breaches of human rights, including the refusal to provide assistance to populations in distress, can imply a threat to international peace and security; and that guarantees against human rights violations include the question of the punishment of core crimes under International Law.

The Yearbook of European Environmental Law is a joint venture between leading academics, practitioners, and Community officials. Academics and students will find a wealth of information in the stimulating and clearly written articles. The well-structured and reliable Annual Survey is specifically designed to provide easy access to the very latest developments in environmental law at the European level. Separate parts of the Yearbook are devoted to important policy documents and reviews of books.

In Responsibility to Ensure: Sponsoring States’ Environmental Legislation for Deep Seabed Mining and China’s Practice, Xiangxin Xu examines how and to what extent the sponsoring State implements its primary responsibility by enacting national legislation, taking China’s legislation as an example.