The Applicability of the Principle of Prevention to Climate Change: A Response to Zahar

in Climate Law
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This is a response to Alexander Zahar’s article in the previous issue of Climate Law. Zahar argued that ‘the principle of prevention is neither applicable nor of relevance to the problem of climate change.’1 Firstly, I discuss Zahar’s scepticism toward state responsibility in the context of climate change. Secondly, I engage critically with Zahar’s claim that the preventive principle only applies to the type of environmental damage that occurs in a short timeframe and in a confined space. I show that some sources of international law do recognize the applicability of the preventive principle to damage to the global environment. Lastly, I dissent with Zahar’s qualification of the climate regime as a derogation to the principle of prevention. I argue that the principle of prevention is a necessary corollary of the rights of states to territorial integrity, although the modalities of application of the principle need to be refined.

  • 12

    Zaharsupra note 1.

  • 15

    Zaharsupra note 1 at 218.

  • 26

    Posner and Weisbachsupra note 21 at 116.

  • 28

    Zaharsupra note 1 at 218.

  • 32

    Zaharsupra note 1 at 225.

  • 38

    Zaharsupra note 1 at 226.

  • 42

    Zaharsupra note 1 at 227 citing Legality of the Threat or Use of Nuclear Weaponssupra note 6 at para. 30: ‘States must take environmental considerations into account whenassessing what is necessary and proportionate in the pursuit of legitimate military objectives.’ Zahar also cites the Court’s general statement according to which ‘The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.’ Legality of the Threat or Use of Nuclear Weaponssupra note 6 at para. 29.

  • 53

    Mark Eugen VilligerCommentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Martinus Nijhoff2009) at 43.

  • 57

     See however Zaharsupra note 1 at 227 n. 27 stating that ‘not too much should be read into this [recital] because the preamble in this case sketches the legal backdrop to the treaty without implying that it is fully applicable to the problem which the treaty sets out to address namely climate change.’ It is not clear what Zahar means by implying that the principle could be ‘partly’ relevant—or why the preamble of a treaty would recall a principle (and qualify it as ‘pertinent’) when the drafters do not consider it to be applicable. The preamble of a treaty is usually the place where the object and purpose of the treaty are revealed; it is not clear why the case of the unfccc would be different.

  • 61

    Zaharsupra note 1 at 226.

  • 62

    Grant Lamond‘Precedent and Analogy in Legal Reasoning’ in Stanford Encyclopedia of Philosophyedited by Edward N. Zalta (Stanford: Stanford University Press 2014).

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  • 63

    151 n.y. 163 167 (1896). The Court’s addition that ‘Sleeping-car companies are neither innkeepers nor carriers’ and that ‘A berth in a sleeping car is a convenience of modern origin’ (168) did little to justify this choice for the analogy to the exclusion of the other. See also Frederick F. Schauer Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Cambridge ma: Harvard University Press 2009) at 99; and Edward H. Levi An Introduction to Legal Reasoning (Chicago: University of Chicago Press 1948) at 1–2.

  • 64

    Zaharsupra note 1 at 226 (emphasis added).

  • 77

    Zaharsupra note 1 at 224.

  • 82

    Schwarte and Frank‘Reply to Zahar’supra note 13 at 236.

  • 88

    Morgenthausupra note 87 at 344.

  • 92

    Schwarte and Franksupra note 13 at 235.

  • 94

    Zaharsupra note 1 at 229.

  • 98

     See Sands and Peelsupra note 50 at 196; and Yamin and Depledge supra note 93 at 69.

  • 115

    Benoit Mayer‘Conceiving the Rationale for International Climate Law’Climatic Change (forthcoming).

  • 117

    Martti Koskenniemi‘What Is International Law For?’ in International Lawedited by Malcolm D. Evans (3rd ed. Oxford: Oxford University Press 2010) at 32.

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  • 118

    Sands and Peelsupra note 50 at 239.

  • 119

    Stephen M. GardinerA Perfect Moral Storm: The Ethical Tragedy of Climate Change (Oxford: Oxford University Press2011) at 7.

  • 120

    Posner and Weisbachsupra note 21 at 181.

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