Chapter 10 Guidance on Answering the Questions in the Book

Question 1:
Why does international environmental law generally form part of the international law of cooperation? Can you think of some principles of international environmental law that could be said to be part of the international law of coexistence?

Guidance:
The question asks the students to situate international environmental law within the two structures of international law discussed in Chapter 1. The book notes that international environmental law is by and large part of the international law of cooperation because it is an area that is not inherently of interest to more than one state and one in which states have decided to cooperate with each other in order to fulfil certain goals of common interest. It also asks students to consider certain principles of the law that could potentially be said to belong within the law of coexistence. A possible example could be the “no harm” or “due diligence” principle as reflected in, inter alia, the seminal Trail Smelter case.

Question 2:
Can you think of some concrete examples of where environmental law overlaps with other fields of public international law?

Guidance:
The question concerns the fact that international environmental law is not an inherent independent legal discipline but instead covers all those parts of international law— whether public or private law— that can be said to relate to the environment. As the book notes, there is substantial overlap between international environmental law and other fields of international law and the students are asked to identify some examples. As Chapter 8 illustrates, there is, for example, an overlap with certain parts of the law of the sea, such the issue of protection of marine life and overall marine protection. There is also substantial overlap with international economic law and human rights law.

Question 3:
Why is there often a tension between environmental protection and economic development? Can you think of some examples of where this tension is visible?

Guidance:
The question encourages students to consider the tension between environmental protection and economic development. The book notes how initial regulation of the environment was focused on the protection of the environment as an economic resource and that it was not until later that it began to emphasize environmental protection as a whole. The chapter contains numerous examples of the tension between environmental protection and economic development. In the historical overview, for example, it notes that the extent to which developing states are free to exploit their own natural resources has been a core cause of contention in the development of the law. The tension is also reflected in a number of the SDGs. Perhaps the best example of this is the principle of sustainable development that seeks to ensure, among other things, a wise and sustainable use resources and the integration of environmental considerations in economic development plans. Another illustrative example is the debate on how to combat climate change and who holds the greatest responsibility for limiting their emission of greenhouse gases.   

Question 4:
The chapter notes that some of the basic principles of international environmental law are merely guiding principles. Does this mean that they are not legally binding?

Guidance:
The question asks the students to consider the legal status of many of the instruments in international environmental law and to tie the debate to the discussion of sources of international law in Chapter 2. The book notes that the field is rich with non-binding instruments of a “soft law” nature and the students should note the inherent binary nature of international legal sources. Thus, in themselves, such soft law instruments are not legally binding. They should also refer to the debate about “soft law” in Chapter 2 and note that such instruments may – over time – assist in the formation of customary law and therefore legally binding instruments.

Question 5:
Can you provide some examples of the techniques used in the treaty-based regulation of international environmental law?

Guidance:
The question forces the students to consider the many different approaches to regulating the environment. The book notes that international environment law is characterized by an abundance of so-called framework conventions that do not exhaustively regulate a topic but instead establish an organizational entity that is tasked with adopting the substantive regulation. The book also makes reference to treaties that adopt a ‘list technique’ whereby the treaty-based obligations are tied to periodically updated lists in protocols or annexes. Another example of a treaty-based approach to international environmental law mentioned in the book is that of treaties that contain a differentiation in the substantial obligations imposed on the parties.

Question 6:
Why are the traditional principles on state responsibility and compensation sometimes ill-suited for enforcing international environmental law?

Guidance:
The question asks the students to consider the particular challenges associated with enforcing violations of international environmental law. The book notes that the usual approaches to state responsibility and reparation for damage in international law are difficult to apply to environmental damage because it may be difficult to draw a causal link between an act (or omission) and environmental damage and because environmental damage in many cases is the result of progressive acts or omissions by a plurality of states that may have contributed to the damage in an unequal manner. The book also brings attention to the difficulty of appropriate compensation for environmental damage and to the problem of applying the traditional approaches to state responsibility and compensation in cases where a breach of an environmental obligation is due to a lack of technical or financial ability to prevent violations of the law.