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International Environmental Law
University of Illinois School of Law
Wexler, Lesley M.

International Environmental Law, Prof. Wexler, Spring 2011.
 
1.      Concept of private property, which deters us from exhausting the positive resources of the earth, favors pollution
2.      Game theory and the prisoner's dilemma: Studies show when people are locked up together and must encounter each other over time, they begin to cooperate instead of acting on self-interest.
3.      Solutions
            ▼    –  1.          Regulation
                  •   a)    Requirement, Limitations, and Transaction Costs
                  •   b)     Must have implementation and compliance
            ▼    –  2.          Allocation as Private Property
                  •   a)    Land Commons would work
                  •   b)     Grandfathering or First Come, First Serve
                  •  c)     Internalize Costs & Creates Incentive to Protect
                  •   d)    Allows people to exploit their parcel & use as they see fit, even if not sustainable; spillover effects
            ▼    –  3.          Voluntary Cooperation
                  •   a)   Elinor Ostrom en.wikipedia.org—Elinor_Ostrom
                  •   b)     Prof. Weiss does not like the word “altruism” because it's in everyone's best interest
                  •   c)    Need Information
            ▼       – 4.        Markets (Tax incentives, Permits & Fee structures, Licensing)
                  •   a)    How do you allocate optimally (per person, per family, efficiency)
                  •   b)     Traditionally, first come, first serve (e.g. fisheries); but not always equitable; Consider: Developing Countries
                  •   c)    3 Criteria: Equity, Economic Efficiency, Administration, Costs
4.      Who provides the Information & Costs? Government, NGOs or private sectors?
1)      Accuracy, Reliability, Verifiability
2)      Distribution and Access
3)      Prices & fees convey info ( e.g. on the scarcity of commodity)
5.      The free rider problem: How do you deal with countries not party to an agreement that can undo the effectiveness of such a treaty?
6.      Sovereignty of States over Resources in their Jurisdiction
Rights of Future Generations
1. Noblesse Oblige- the obligation of the nobility
  The nobility should be the model of abiding by the law.
2. What are the interests of future generations?
  While we do not know what their values will be and precisely what they will want, however, we know what they need, i.e. water, food, air, shelter.
But what about quality? We need the will of the present generation. Religious traditions speak to intergenerational equity.
3. How do we represent the interests of future generations?
It’s hard for us because of scientific uncertainty. We are used to responding after a problem has arisen. So we must first identify whether or not there is a conflict between inter- and intra- generational equity and degree. Maslow's hierarchy of needs; We need to align incentives. Should we listen to the bottom so as to effectively develop sustainably?
4. What would be the effect of giving rights to future generations?
    (a) Removing responsibility from legislators or increasing force of regulations
(b) Nothing because the parties that will assert those rights will continue over normative values
(c) Gives a legitimacy at the table
(d) Gives judges a hook on which to decide a case
5. Intergenerational Lens of Nuclear Waste (Decommissioning of Plants and Disposal)
    Area of some scientific certainty (i.e. half life of materials) and space to put the waste; Will there be money to decommission when it becomes time;
Deep pit storage needs to protect seepage into groundwater for future generations but we know that science changes (technology, implications);
Do financial policy changes affect feasibility of projects?
7.      How do you locate a principle of intergenerational equity? Documents, Practices;
8.      Our Relationship to Nature:
Dominion over Nature; Equality between humans, animals and nature;
Human Ecology (systemic) – Human are part of an ecological system; Humans are affected by and affect the system.
9. Three Problems of Intergenerational Equity
    1) Depletion of resources resulting in the loss of options or diversity in resources;
(also foreclosing applications for the resources not yet discovered)
2) Degradation in the quality of Resources; (The most common problem of equity is differentials in the price of a resource to different generations)
3) Discriminatory Access to resources; (Even preservationists may preserve resources for their own descendants)
10. Approaches:
      1) Preservationist: present generation preserve all resources for future generations;
      2) Use only sustainably: roots in natural flow theory of English water law;
      3) Opulent: maximizing consumption today and maximizing wealth for future generations
      4) Investment – each generation lives off the interest on the capital
11. Prof. Edith Brown Weiss: Earth is an investment opportunity and a “Planetary Trust” with rights and responsibilities; Each generation is both a trustee and a beneficiary;
        1) Intergenerational Equity – each generation has an equal place in relation to the natural system; We must consider our relationship to other generations of our species and our relationship to the natural system
        2) The anchor of the legal framework is the notion of equality
    3) But how can we afford to address equity to future generations when there are widespread inequities today?
        4) All countries must ensure that the basic needs of the poor are met so that they will have both the desire and the ability to fulfill their intergenerational obligations to conserve the planet.
        5) It is difficult to define what and how much to conserve when we do not know the exhaustibility of natural resources nor the technological advances that we will make
12. Rawls' Theory of Justice: We don't need to be utilitarian but rather just preserve for posterities’ sake and pass on greater capital accumulation.
13. Norton: Future generations do not have rights; rather there are general obligation based in a multi-generational community; Based on “Parfit's Paradox”, if we choose High rather than Low Consumption, the standard of living will be higher over the next century. Depending on our choice, different marriages will be made and different children produced. No one is harmed by High Consumption, nor are future persons' right infringed upon. Moreover, right of future generations is an inadequate basis for an environmental ethic.
16. Why do we care about future generations?
1) Critics argue it is ethically and legally incoherent because it is unable to concretely identify to whom environmental obligations are owed, its failure to acknowledge the significance of the past, and its blind acceptance of continued development as a societal good
2) We innately act in ways calculated to promote survival and reproduction of our generations; It is a primordial social value, necessary for maintaining human communities; There is a basic psychological need to transcend the self;
17. Examples of Documents Recognizing rights of future generations:
               1) The Advisory Committee to the UN University Project on “International Law, Common Patrimony and Intergenerational Equity” (p.67)
2)   1997 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations (p.68)
   UNESCO: United Nations Educational, Scientific and Cultural Organization
                                          a)   Many articles recognize the preservation responsibilities of present gens, but do not refer to the rights of future gens, rather the notion: stewardship of present generation
                                          b) Jacques Cousteau wrote petition and gathered signatures; friends with Mayor (president of UNESCO at the time); concern over future generation and other issues, not wanting the dead hand of the past, i.e. the Balkan problem
                                          c)   What is patrimony(遗产)? (humand or mankind) — This is an English issue
                                          d)  French scholars did not want the notion of “rights” in the final Declaration
                              3)UN Commission on Sustainable Development's Expert Group Meeting on Identification of Principles of International Law for Sustainable Development identifying inter and intra-generational equity, as did the United Nations Environmental Program's Expert Working Group Workshop
                           4)  Stone

thout distorting international trade and investment.”
5. The polluter pays principle is not a customary international law, because it has not been widely adopted in international agreements outside of Europe. It is a goal rather than a binding norm. (p. 530)
6. When considering if pollution control is efficient, look at trade-off between prevention and cost (Technology-Based Standard), but cost is often affected by the legal regime
Rational decision-making
1. Costs must be examined and balanced in environmental decision-making:
(p. 93, identified by the Council of Environmental Quality)
1) damage costs;
2) avoidance costs;
3) transaction costs: the resources consumed in making and enforcing policies and regulations;
4) abatement costs: those associated with reducing the amount of environmental degradation;
5) intangible or psychic damage: psychological costs of environmental degradation;
2. State responsibility and liability with respect to environmental degradation-Trail Smelter Case, the tribunal declared: “A State owes at all times a duty to protect other states against injurious acts by individuals from within its jurisdiction.”
3. The Stockholm Declarations: can also be interpreted as placing responsibility upon those undertaking the actions which result in environmental degradation, although the emphasis is upon “common action” among states.
4. State responsibility: the tendency is to be interpreted as requiring that states within whose boundaries harmful actions occur must pay or cause to be paid the cost of ameliorating those actions and must pay for the remaining damages as well.
5. Fault-based liability (negligence)
  1) Induces firms to pollute and risks the cost of liability and fines;
  2) Negligence works when there is a duty of care (statutory or jurisprudence)
6. Strict liability: Requires firms to install technology to produce the efficient amount
7. The “victim pays” principle: one of principles of assigning state responsibility, which requires the affected state to compensate the affecting state (or internal parties creating harmful residuals) for all costs of control and to absorb all residual damages after controls are implemented. (p.91)
a) Works when victim is a wealthy country
b) Victim may know more about the costs
c)   Free Rider Problem
d)  Perverse incentive for polluters to engage in irresponsible practices or pollute more so as to obtain compensation
e)  Climate Change applicability:
(1) Possible incentives for polluters to also reduce emissions may include: (i) the
political externalities which would affect economic cooperation (ii) Long
term and global effects
(2) Developing Countries (who may not have the money or capacity to install technology) assisted by Multilateral Development Bank.
8. State responsibility for international environmental degradation-4 principles:
  1) each state is responsible for all waste discharge control costs internally and externally but is not responsible for compensation of remaining damages following installation of the agreed-upon controls.
  2) full costing principle: requires the state responsible for waste discharge to pay compensation for remaining damages as well as control costs.
  3) “victim pays” principle
  4) Common Property Resources Institution Principle (CPRI); Establishment of an internal or international autonomous agency to regulate joint use of common property resources by individual or multiple states.