Suchergebnisse

AbstractThis article argues that the International Court of Justice's (ICJ) account of the customary law of environmental impact assessment (EIA) is incomplete. While acknowledging the role of the harm prevention principle in formulating the customary obligation to conduct EIAs, the ICJ has ignored the duty to cooperate, notwithstanding the latter duty's equally strong standing in international environmental law. Ignoring the duty to cooperate pushes the court towards a formal and sequential understanding of EIA, which undervalues the centrality of notice and consultation in EIA. In effect, viewed through the harm prevention lens alone, EIA is largely understood in instrumental and technical terms; whereas, if the duty to cooperate is brought back in, EIA's deliberative and 'other-regarding' nature is more clearly seen. This, in turn, recognises the normative and political role of EIA in structuring State interactions respecting environmental disputes.

As the duty to consult Aboriginal peoples is operationalized within the frameworks of government decision making, the relevant agencies are increasingly turning to environmental assessment (EA) processes as one of the principal vehicles for carrying out those consultations. This article explores the practical and theoretical dimensions of using EA processes to implement the duty to consult and accommodate. The relationship between EA and the duty to consult has arisen in a number of cases and a clear picture is emerging of the steps that agencies conducting EAs must carry out in order to discharge their constitutional obligations to Aboriginal peoples. The article examines the implementation of the duty to consult through various stages of EA processes, identifying the EA practices that are best able to satisfy the legal requirements and the aspirations of the duty to consult, as well as to identify areas that are likely to present challenges moving forward. The article also considers a broader approach to EA that is more likely to contribute to the overarching goal of reconciliation, arguing that greater attention must be paid to the deliberative and justificatory qualities of EA.

This article examines the institutional, political and regulatory dimensions of environmental assessment (EA) processes. While EA is most often conceptualized as a regulatory instrument, this article contends that viewing EA in this narrow fashion obscures the broader implications and significance of EA as a distinct form of governance. When conceived as a mode of governance, EA varies considerably in terms of the key governance characteristics emphasized in this symposium. The empirical evidence rests upon three cases studies looking at very different multi‐level governance contexts: the Tamar Valley Pulp Mill in Australia, the Whites Point Quarry in Canada, and the Byströe Canal Project in the Ukraine. The case study analysis identifies large variations in the institutional, political and regulatory form that EAs take, indicating that approaches identifying EA as a form of 'New Governance' are overly simplistic. The analysis also points to the multi‐directional influence of different governance dimensions. The insights derived from the use of the three dimensional framework validate its value as an analytical tool.

This article critically considers calls for the precautionary principle to inform judicial decision making in a private law context in light of the Hoffman litigation, where it is alleged that the potential for genetic contamination from genetically modified (GM) crops causes an unreasonable interference with the rights of organic farmers to use and enjoy their lands, giving rise to an actionable nuisance. Applying the precautionary principle in this context would likely privilege non-GM land uses over GM uses, given the latter's uncertain environmental impacts. Through a comparison of the institutional characteristics and respective roles of public and private regulation, the authors argue that the private law context, which lacks democratic accountability and has a limited ability to address complex scientific issues, is poorly suited to apply the diffuse, policy-based risk allocation considerations raised by the precautionary principle.

"This book examines liability for environmental harm in Antarctic, deep seabed, and high seas commons areas. It is the first in-depth examination and evaluation of current liability rules and provides possible avenues for future legal developments in international environmental law and the law of the sea"--

The challenges to global order posed by rapid environmental change are increasingly recognized as defining features of our time. In this groundbreaking work, the concept of innovation is deployed to explore normative and institutional responses in international law to such environmental change by addressing two fundamental themes: first, whether law can foresee, prevent, and adapt to environmental transformations; and second, whether international legal responses to social, economic, and technological innovation can appropriately reflect the evolving needs of contemporary societies at national and international scales. Using a range of case studies, the contributions to this collection track innovation - descriptively, normatively, and as a process in and of itself - to explain international environmental law's functionality in the Anthropocene. This book should be read by anyone interested in the critical intersection of environmental and international law.