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Prevention of Environmental Harm under General International Law

SKU: 7921089210
Autore:
Gervasi Mario
Collana:

"Cultura Giuridica e Scambi Internazionali"
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103,00 €
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Prevention of environmental harm is commonly regarded as an obligation established by a customary rule of international law. However, many questions are still unanswered, including the exact content of such an obligation. This book attempts to address those questions by proposing a different reconstruction: it is argued that prevention of environmental harm amounts to a general principle of international law, rather than a customary rule. To this end, the book discusses the weaknesses of the classifìcation of prevention as a customary obligation. It then demonstrates that prevention of environmental harm has actually operated as a general principle, inspiring the formation of more specifìc rules and performing a guiding function within international case law. In light of this, the problem of the content of prevention under general international law is reformulated as one of identifying the customary rules embodying it. Since the dilution of prevention of environmental harm by the concept of sustainable development is apparent from the current trends within customary international law, the book concludes by exploring what role the principle of prevention might play in the future, particularly in a de-growth scenario.

L'Autore
Mario Gervasi (LLM University of Essex, PhD Sapienza University of Rome) is a Research Fellow in International Law at the Faculty of Law of Sapienza University of Rome. He has been a Visiting Professor at the Zhongnan Universi- ty of Economics and Law, Wuhan (China), and a Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg (Germany). He is the author of several articles and book chapters in various fìelds of international law.

Indice

Abbreviations

Introduction
I.  New Momentum for the Principles of International Environmental Law: The Ambition of Adopting a Global Pact for the Environment
II.  Object and Purpose of the Book
III.  Some Terminological Issues
IV.  Research Plan

PART I
Weaknesses in the Construction of Prevention of Environmental Harm as a Customary Rule

Chapter 1
Marginalisation of State Practice
1.1.  The Common View That There Is a Customary Rule Imposing an Obligation to Prevent Transboundary Environmental Harm
1.1.1. Marginalisation of State Practice within the Arguments in Fa- vour of the Existence of the Rule
1.1.2. The Background: A Paradoxical Disregard for the Status of Pre- vention of Environmental Harm…
1.1.3. …and the Initial Focus on State Liability
1.2.  Inconsistencies within State Practice
1.2.1. Continuing Degradation of the Environment
1.2.2. Non-Application of the Alleged Customary Rule on Prevention in Cases of Environmental Harm
1.2.3. The Torrey Canyon Case…
1.2.4. …and Other Incidents Involving Oil Tankers
1.2.5. The Ixtoc I Case
1.2.6. The Chernobyl Case
1.2.7. The Sandoz Case
1.2.8. The Deepwater Horizon Case
1.2.9. The Fukushima Daiichi Case
1.3.  Doubts concerning the Customary Nature of Prevention of Trans- boundary Environmental Harm
1.3.1. The Weight of State Practice in the Arguments against the Exis- tence of a Customary Rule on Prevention
1.3.2. The Issue of Inconsistencies in State Practice in the Light of the Methodological Problem of How to Determine Customary In- ternational Law…
1.3.3. …and Their Relevance Despite the Ongoing Difficulties in De- finitively Solving the Problem

Chapter 2
Connection with Non-Environmental Obligations
2.1.  The Issue of Non-Environmental Obligations Requiring the Preven- tion of Transboundary Environmental Harm
2.2.  Territorial Sovereignty and Prevention of Transboundary Harm to the Environment
2.2.1. A Common Misconstruction: The No-Harm Rule as the Origin of Prevention of Transboundary Environmental Harm
2.2.1.a.The Trail Smelter Case
2.2.1.b. The Ensuing Evidential Value of Non-Environmen- tal Practice: Island of Palmas, Corfu Channel and Lac Lanoux
2.2.2. Objective Theory of Sovereignty and Principles of Law: Sic Utĕre Tuo Ut Alienum Non Laedas, Good Neighbourliness, Abuse of Rights
2.3.  Protection of the Environment Per Se as a Collective Interest
2.3.1. Critique of the Connection between the No-Harm Rule and Prevention of Transboundary Environmental Harm
2.3.2. Protection of the Environment Per Se as the Interest Under- pinning Prevention of Transboundary Environmental Harm in Principle 21
2.3.3. Further Evidence of the Collective Nature of the Interest Un- derpinning Prevention of Transboundary Environmental Harm in Principle 21
2.3.4. Reconceptualising Prevention of Transboundary Environmental Harm
2.4.  The Interaction between Prevention of Environmental Harm and Non-Environmental Obligations
2.4.1. Territorial  Sovereignty  in  Environmental  Cases  concerning Transboundary Harm: The Need to Keep Protection of the En- vironment Distinct
2.4.1.a. Practice Following the Stockholm Declaration: The Nu- clear Tests Case and the Cosmos 954 Incident
2.4.1.b. Recent Practice: The Aerial Herbicide Spraying and Construction of a Road in Costa Rica Cases
2.4.1.c. Pollution of International Watercourses
2.4.2. Pre-existing Non-Environmental Obligations Other than the No-Harm Rule, with Particular Regard to Freedom of the High Seas

PART II
Prevention of Environmental Harm as a General Principle of International Law

Chapter 3
General Principles of International Law and Protection of the Environment
3.1.  Preliminary Remarks on General Principles in the International Legal System
3.1.1. Looking at General Principles for an Alternative Classification of Prevention of Environmental Harm
3.1.2. General Principles Recognised in Foro Domestico under Article 38 of the ICJ Statute: Not an Obstacle to General Principles of International Law
3.1.3. Inconclusiveness of the Supposed Paucity of Practice to Exclude General Principles of International Law
3.1.4. Inherence of General Principles in Addition to Rules in Any Le- gal System
3.2.  Overview of the Features of General Principles of International Law
3.2.1. General Principles of International Law in the Light of the Functional Distinction between Principles and Rules
3.2.2. Features of the Inspiring Function of General Principles of In- ternational Law
3.3.  Theoretical Implications of the Reconstruction of Prevention of Envi- ronmental Harm as a General Principle of International Law
3.3.1. Prima Facie Suitability of Prevention of Environmental Harm to Qualify as a General Principle: The Programmatic Intent of the 1972 Stockholm Conference
3.3.2. Identification by Induction from Existing Rules: Distinguishing between General Principles and Mere Policies or Soft Law Rec- ommendations
3.3.3. Verification of the Actual Operation of Prevention as a Principl