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LAWS569 - International Environmental Law

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Added on  2019-10-30

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The need for environmental law is very important for the protection of the environment from various activities. Environmental laws are an important aspect of the law that operates in complicated areas where there is a high level of uncertainty. The report presents an analysis of the proposition which has been given by legal scholars and based on this analysis has been made on the relative strength and weaknesses of the proposition that Environment precautionary principles are part of international customary law. As the name suggests, environment precautionary principles are used for saving the environment from harmful activities and the principles represent the duty to prevent the environment from being harmed.

LAWS569 - International Environmental Law

   Added on 2019-10-30

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LAWS569 - International Environmental Law_1
ASSESSMENT TASK2IntroductionEnvironmental law is such aspect of law, which operates in complicated areas which have high level of scientific uncertainty. For the majority of activities which require a change to the environment, the precise determination of its effects on the human health or on the environment remains almost impossible to be determined1. Usually, the scientific evidence which is available gives the cause for concern; though, the same is no able to give information which could be deemed as conclusive. When such happens, the risk assessment requires a balance to be attained between the need for protecting the environment and for the advantages foregone of the strict restrictions which can be deemed as unnecessary. And in this context, the role of precautionary principle is raised2. A proposition by legal scholars which has been presented in this regard is that the precautionary principle has attained the level of customary international law. In the following parts, this very proposition has been analysed whereby its strengths and weakness have been highlighted, to understand if this proposition is actually true. But before that is done, the very basics of precautionary principle have been highlighted. Precautionary PrinciplePrecautionary principle is a tool which is used for betterment of environmental and health decisions. The aim of precautionary principle is to safeguard against any harm from the 1 Lee Paddock, Du Qun, and Louis J. Kotzé, Compliance and Enforcement in Environmental Law:Toward More Effective Implementation (Edward Elgar Publishing,2011).2 Rabbi Deloso, The Precautionary Principle - International Law and Climate Change (GRIN Verlag, 2011).
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ASSESSMENT TASK3very start, instead of managing it after the same has already taken place3. To put it in layman’s language, “better safe than sorry”. This principle denotes the duty of preventing harm when it is in the power of doing so, even when there is an absence of evidence to show that4. Hence, this principle is a notion whereby the protective action is supported before there is a scientific proof to establish the risk, in the sense that an action should not be prolonged just because of the absence of the scientific information. In short, this principle conveys the common sense based viewpoint “to err on the side of caution”. So, the aim here is to safeguard the humans, the environment, and broadly the eco-system from harm5. The precautionary principle acts as a guiding principle and the purpose of it is to encourage and even oblige the decision markers for considering the possible harmful effects of the actions undertaken by them over the environment, before they even go forward with these activities. The proponents of this principle see it as a new and a progressive policy instrument, where they strive for the reversal of, or a shift from the present position in which t he polluters are allowed to go forward and continue with the discharge of different forms of substance sin the biosphere. A long time has passed since the humankind has continued to act in the short term interest of profit and progress instead of the long term focus over the welfare and health of planet earth. This has led to a known situation whereby the human society discovers that 3 Agne Sirinskiene, The status of precautionary principle: moving towards a rule of customary law (2009) <https://www.mruni.eu/upload/iblock/b27/20sirinskiene.pdf>.4 Canadian Environmental Law Association, The Precautionary Principle (2017) <http://www.cela.ca/collections/pollution/precautionary-principle>.5 RV Chaudry, ‘The Precautionary Principle, public health, and public health nursing’ (2008) 25(3) Public Health Nursing.
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ASSESSMENT TASK4already an extensive and irreversible damage has been caused to the environment and there is already a difficulty being faced in coping with its consequences6. Rule of Customary International Law?There have been one set of legal commentators who have argued in favour of the precautionary principle being a level of customary law, due to the strengths of this proposition. Conversely, there are others who state that precautionary principle has not attained this status due to the principle being quite vague, which can be interpreted in different manner and is also not accepted by the majority of world, on national level; effectively highlighting the weakness of this proposition. There is also one more description of this principle which states that the principle is evolving and is a culturally framed concept which takes the cue from the ever-changing views regarding the pertinent role of economics, politics, law, ethics, and science in proactive environmental management, as well as, its protection7. In a number of ways, this principle shows the legal concepts which are not even new. A proponent of this principle, James Cameron, has highlighted different principles which already exist and which in his view are indirectly, the precautionary measures. The key one in this regard is the concept of strict liability under tort, whereby absolute liability for thee conducted activities is provided, which are deemed as abnormally dangerous in nature, for instance, the burial of environmental waste. James has highlighted the probability of the responsible part 6 James Cameron and Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy for theProtection of the Global Environment (05 February 2017) <http://osrtf.ca/osrtf/wp-content/uploads/2017/02/05-The-Precautionary-Principle.pdf>.7 Christina Voigt, Sustainable Development As a Principle of International Law: Resolving Conflicts Between Climate Measures and WTO Law (BRILL, 2009).
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