Contemporary Issues in International Environmental Law

Contemporary Issues in International Environmental Law

Malgosia Fitzmaurice

The central aim of this insightful book is to illuminate how many concepts in international environmental law such as the precautionary principle and sustainable development are taken for granted. These problematic issues are very much still evolving and subject to heated debate between scholars as well as between states.

Chapter 1: Precautionary Principle

Malgosia Fitzmaurice

Subjects: environment, environmental law, law - academic, environmental law


INTRODUCTION The precautionary principle is one of the founding principles of international environmental law. It is an undisputed and widely-known phenomenon the legal content and status of which, however, as is the case with many other principles of international environmental law, are very unclear. As was aptly stated: Despite the success of the principles of the polluter pays, prevention, and precaution in international and EC law as well as national environmental laws, neither doctrine nor case law has succeeded in clearing up the mystery of their legal status. How should we class these three principles? Do they display the characteristics that typify normative principles? Are we dealing with complete rules? Are they sufficiently precise to allow legal effects to be deduced? Do they call for the adoption of more precise rules?1 This chapter does not purport to provide a comprehensive survey of problems concerning the precautionary principle, which has been the subject of numerous previous publications,2 but has a more limited purpose, 1 N. de Sadeleer, Environmental Principles, From Political Slogans to Legal Rules (2002) at 395. 2 To mention a few: A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law (2002) (hereinafter Trouwborst I); A. Trouwborst, Precautionary Rights and Duties of States (2006), (hereinafter Trouwborst II); D. Bodansky, ‘New Developments in International Environmental Law: Remarks by Daniel Bodansky’, 85 Proceedings of the Annual Meeting (1991) 413, at 413–7 (hereinafter Bodansky I); D. Bodansky, ‘Scientific Uncertainty and the Precautionary Principle’, 33 Environment (1991) 4...

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