Research Handbook on International Environmental Law

Research Handbook on International Environmental Law

By Malgosia Fitzmaurice and David Ong

This wide-ranging and comprehensive Handbook examines recent developments in international environmental law (IEL) and the crossover effects of this expansion on other areas of international law, such as trade law and the law of the sea.

The expert contributors offer analyses of foundational issues in IEL, such as responsibility for environmental damage, sustainable development and the precautionary principle, alongside studies in topical subject areas including marine protection and the law of international watercourses. This Research Handbook on International Environmental Law offers an in-depth analysis of IEL, both as a field of law in its own right, and as part of the wider system of international law. It gives a comprehensive view of IEL in all its forms and complexity.

With thorough examination of specific environmental regimes and compliance mechanisms, this handbook will be an indispensable resource for legal scholars, students and practitioners alike.

The growing importance of international environmental law was one of the reasons for the publication of this book, which contains a remarkable collection of in-depth analyses of international environmental law, its history, its current status and its future. Taking its cue from the recent debate stirred by the Report of the ILC Study Group on the Fragmentation (Diversification) of International Law, this Handbook departs from the traditional treatments of the subject of international environmental law. Instead of examining environmental law solely as a ‘self-contained regime’, it adopts a more holistic approach. In more detail, this book offers, on the one hand, an examination of principles characteristic of international environmental law (such as the precautionary and the polluter-pays principles) and of specific environmental protection regimes. On the other hand, however, this Handbook recognises the fact that international environmental law does not exist in ‘clinical isolation’ from other areas of international law (US – Gasoline 1996, Appellate Body report: 17). Consequently, several of the chapters offer insights into the place of international environmental law within the general system of international law and, most importantly, how it interrelates with other fields of international law (such as international trade, human rights and law of the sea). Although the chapters address diverse topics and issues, an underlying common theme is evident. The various fields addressed by international law are no longer seen as giving rise to xxivisolated sets of norms, but rather to interrelated norms, together forming part of a whole ‘system’ of international law.2 In this endeavour, the authors have had to confront the difficult task of striking a balance between, on the one hand, analysing problems specific to international environmental law and, on the other hand, harmonising their conclusions/solutions so as to fit within the construct of international law in its entirety. In their analyses, the authors have also adopted a pragmatic viewpoint, covering issues relating to the efficacy of international environmental law. The ‘enforcement’ element has always constituted an area of weakness, not only of environmental law, but also of international law in general. By examining responsibility and liability for environmental harm alongside dispute settlement and non-compliance procedures, the authors have shed light on this highly sensitive area and have enriched this Handbook by offering insights and information which are important not only from an academic’s, but also from a practitioner’s, point of view. It is to the credit of the authors that they have not shied away from tackling such diverse and intricate issues, while at the same time casting a critical eye on the solutions already adopted and offering suggestions to untangle the existing problems. Thus, not only is an important agenda for legal research and reform provided by this book, but also the cause of promoting international environmental law and its understanding is well served by it

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Contents
List of contributors xi
List of abbreviations xvi
Preface Panos Merkouris xxiv
PART I INTERNATIONAL ENVIRONMENTAL LAW AS A SYSTEM OF
INTERNATIONAL LAW
1 Actors and law-making in international environmental law 3
Mark A. Drumbl
2 International framework for environmental decision-making 26
Geir Ulfstein
PART II THEORIES AND CONCEPTS OF INTERNATIONAL
ENVIRONMENTAL LAW
3 Sustainable development 51
Duncan French
4 Environment and development: friends or foes in the 21st century? 69
Paolo Galizzi and Alena Herklotz
5 Implementing intergenerational equity 100
Edith Brown Weiss
6 An introduction to ethical considerations in international environmental law 117
Alexander Gillespie
7 The World Bank and sustainable development 138
David Freestone
8 Common but differentiated responsibilities 161
Philippe Cullet
9 The principles of prevention and precaution in international law:
two heads of the same coin? 182
Nicolas de Sadeleer
PART III SUBSTANTIVE PRINCIPLES
10 The precautionary principle 203
Minna Pyhälä, Anne Christine Brusendorff and Hanna Paulomäki
11 Environmental impact assessment 227
Olufemi Elias
12 The polluter-pays principle 243
Priscilla Schwartz
vPART IV HUMAN RIGHTS TO A CLEAN ENVIRONMENT
13 Human rights and the environment: substantive rights 265
Dinah Shelton
14 Human rights to a clean environment: procedural rights 284
Jona Razzaque
PART V RESPONSIBILITY AND LIABILITY FOR ENVIRONMENTAL HARM
15 Responsibility for environmental damage 303
Phoebe Okowa
16 International liability for damage to the environment 320
Louise Angélique de La Fayette
17 Corporate liability for environmental harm 361
Amanda Perry-Kessaris
PART VI DISPUTE SETTLEMENT AND COMPLIANCE
18 Settlement of international environmental law disputes 379
Natalie Klein
19 Environmental disputes in the WTO 401
Joanna Gomula
20 Compliance procedures and mechanisms 426
Gerhard Loibl
21 International legal efforts to address human-induced global climate change 450
David M. Ong
22 Filling the holes: the Montreal Protocol’s non-compliance mechanism 471
Feja Lesniewska
PART VII BIODIVERSITY
23 Environmental protection and the concept of common concern of mankind 493
Michael Bowman
24 International environmental law governing threats to biological diversity 519
David M. Ong
25 Fisheries and marine biodiversity 542
Richard Barnes
PART VIII SPECIFIC ENVIRONMENTAL PROTECTION REGIMES
26 The 1982 UN Convention on the Law of the Sea and Marine Environmental 567
Protection
David M. Ong
27 Environmental protection in armed conflict 586
Karen Hulme
vi Research handbook on international environmental law28 The relationship between the law of international watercourses
and sustainable development 605
Malgosia Fitzmaurice
29 International chemicals and waste management 637
Katharina Kummer Peiry
30 Drilling at the Poles: environmental protection in the Antarctic and the Arctic 654
Karen N. Scott

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