Guide International Courts and Environmental Protection

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This event will be held in Oslo, the capital of Norway, June, The aim of the conference is to gather academics working with environmental issues, especially legal practitioners, as well as judges, adjudicators, arbitrators, mediators and members of tribunals that deal with environmental matters, and civil society, to discuss procedural and substantive aspects of environmental adjudication. The Academy will publish an edited and peer-reviewed collection of selected papers following the colloquium. This broad topic seeks to address procedural and substantive aspects of environmental adjudication, both in national, regional and international courts, tribunals as well as non-compliance mechanisms of multilateral environmental treaties.

In the context of the Sustainable Developments Goals, Principle 10 of the Rio Declaration as well as the Aarhus Convention, the idea of strengthening of an environmental rule of law through access to justice has gathered considerable momentum.

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The main questions to explore by this colloquium relate to what the role is, should be and could be for the judiciary in promoting environmentally sustainable development? With its unique combination of scholarly analysis and practical discussion, this work is especially relevant to an era in which environmental matters are increasingly being brought before international jurisdictions, and will be of great interest to students and scholars engaged with this vital field.

The patchwork of jurisdictions. Institutions of international environmental governance. International courts and environmental governance. Transboundary environmental damage.

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Freshwater resources and ecosystems. These different approaches to the methodological determination of the obligation to conduct an EIA will be closely examined in the remainder of this analysis. In his separate opinion, Judge ad hoc Dugard argues that transboundary EIA is a separate obligation sustained by state practice and opinio juris.

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In her opinion, one parameter relevant to the case at hand is the principle of due diligence, which itself is deduced from the principle of the sovereign equality of states. This debate about the source of the obligation to carry out a transboundary EIA is not merely an academic discussion. Its practical implications are clearly illustrated by the closely related question of whether obligations to notify and consult with the other countries potentially affected by an activity are attached to the obligation to conduct an EIA.

Does such an obligation stem from the consolidated practice and opinio juris of states on the matter, or does it arise independently through application of the principle of due diligence?

Environmental Law

Yet, Judge Donoghue considers that it is too reductive to attach the obligation to consult and notify as a follow-up to the conduct of an EIA, and suggests that the obligation to consult and notify can exist independently from the obligation to conduct an EIA, as it also stems from the general obligation of due diligence. Thus, she argues, the obligation to consult may also arise, in certain circumstances, prior to conducting an EIA.

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There may be further ramifications of adopting either of these positions, including on the stringency of the requirements imposed on states. In this respect, Judge ad hoc Dugard warns:.

Introduction to International Environmental Law

Furthermore, there is no doubt that classifying this as a question of due diligence to be answered on a case-by-case basis creates a degree of ambiguity about what is required from states, thereby undermining the preventative effect of customary rules. Even if the due diligence standard may be variable, it is still possible to derive some content from it. Firstly, the substantive content of the due diligence obligation can be informed through the application of the procedural elements of due diligence, such as the obligation to notify and consult the potentially affected states.

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If this obligation can apply to the preliminary phases of preparing an EIA ie screening and scoping , as suggested by Judge Donoghue, it can also help to shape the actual content of the EIA, by ensuring that the process is subject to external scrutiny. Secondly, the obligation of due diligence must be interpreted in light of the development of more specific rules or procedures on the conduct of EIAs, through which states agree on what steps should be taken when carrying out an EIA.

It is in this respect that states would be well advised to pay heed to soft law instruments relating to EIA, with a view to defending potential claims that they have not exercised due diligence. Even if it is accepted that it is possible to give some more specific content to the due diligence obligation, we are still left with a relatively weak and obscure standard.