Pub Date : 2022-12-07DOI: 10.1163/24686042-12340081
Ruby Moynihan Magsig
A global water crisis with far-reaching and interconnected impacts threatens the world. Healthy ecosystems are degrading, and access to a sustainable water supply is increasingly inequitable within and between States. The ecosystem approach has emerged as a concept to transform ecosystem management and prioritise equitable participation and outcomes for vulnerable societies but its normative content and international legal status remain unclear. This paper draws from international environmental and human rights law to ask what are the normative elements of an ecosystem approach in the context of international law relevant to transboundary freshwater ecosystems and what is the added value of an ecosystem approach for water law? It then explores the United Nations Economic Commission for Europe (UNECE) environmental instruments as a structurally distinct regime and demonstrates how the regime provides the strongest clarification of an ecosystem approach in international water law. Finally, it demonstrates how the ecosystem approach stimulates mutual supportiveness between different areas of international law.
{"title":"An Ecosystem Approach in International Environmental Law Relevant to Transboundary Freshwater Ecosystems","authors":"Ruby Moynihan Magsig","doi":"10.1163/24686042-12340081","DOIUrl":"https://doi.org/10.1163/24686042-12340081","url":null,"abstract":"\u0000 A global water crisis with far-reaching and interconnected impacts threatens the world. Healthy ecosystems are degrading, and access to a sustainable water supply is increasingly inequitable within and between States. The ecosystem approach has emerged as a concept to transform ecosystem management and prioritise equitable participation and outcomes for vulnerable societies but its normative content and international legal status remain unclear. This paper draws from international environmental and human rights law to ask what are the normative elements of an ecosystem approach in the context of international law relevant to transboundary freshwater ecosystems and what is the added value of an ecosystem approach for water law? It then explores the United Nations Economic Commission for Europe (UNECE) environmental instruments as a structurally distinct regime and demonstrates how the regime provides the strongest clarification of an ecosystem approach in international water law. Finally, it demonstrates how the ecosystem approach stimulates mutual supportiveness between different areas of international law.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42972332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340088
Yuqing Zhao
Wetlands are among the most productive and sensitive ecosystems of particular importance and harm to this type of environment should be treated with a high degree of seriousness. The obligation to protect wetland ecosystems can be derived both from treaties and from general international law, and damage to wetland ecosystems entails an obligation to make reparation in an adequate form. Where appropriate, compensation should be provided in order to ensure full reparation. However, no specific method of valuation is prescribed by international law for the purpose of compensation for environmental damage, and the need to have operable guidelines for valuing environmental damage thus arises. This article aims to contemplate the approach for evaluating damages to wetland ecosystems, that is, how to decide on the amount of compensation due for damages to wetland ecosystem services. At the outset, the sources of an international obligation to protect wetland ecosystems and the compensability of damage to wetland ecosystems, notably ecosystem services, are analyzed. After explaining the difficulties concerning the quantification of wetland ecosystem services, the article introduces a range of valuation techniques relating to valuing wetland services. Then it outlines the key considerations that facilitate the choice among competing techniques and approaches in international judicial proceedings. In the end, it points out that under certain circumstances, equitable considerations may be drawn upon to determine the quantum of compensation. The ultimate goal is to facilitate the development of a legal framework for evaluating damages to wetland ecosystems.
{"title":"Evaluation of Damage to Wetland Ecosystems in International Compensation: Compensability, Quantification and Equitable Considerations","authors":"Yuqing Zhao","doi":"10.1163/24686042-12340088","DOIUrl":"https://doi.org/10.1163/24686042-12340088","url":null,"abstract":"\u0000 Wetlands are among the most productive and sensitive ecosystems of particular importance and harm to this type of environment should be treated with a high degree of seriousness. The obligation to protect wetland ecosystems can be derived both from treaties and from general international law, and damage to wetland ecosystems entails an obligation to make reparation in an adequate form. Where appropriate, compensation should be provided in order to ensure full reparation. However, no specific method of valuation is prescribed by international law for the purpose of compensation for environmental damage, and the need to have operable guidelines for valuing environmental damage thus arises. This article aims to contemplate the approach for evaluating damages to wetland ecosystems, that is, how to decide on the amount of compensation due for damages to wetland ecosystem services. At the outset, the sources of an international obligation to protect wetland ecosystems and the compensability of damage to wetland ecosystems, notably ecosystem services, are analyzed. After explaining the difficulties concerning the quantification of wetland ecosystem services, the article introduces a range of valuation techniques relating to valuing wetland services. Then it outlines the key considerations that facilitate the choice among competing techniques and approaches in international judicial proceedings. In the end, it points out that under certain circumstances, equitable considerations may be drawn upon to determine the quantum of compensation. The ultimate goal is to facilitate the development of a legal framework for evaluating damages to wetland ecosystems.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44170904","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340091
Qiu-Lan Qiu, L. Dai, H. V. Van Rijswick
As China’s largest river basin, the Yangtze River Basin has the most mega reservoir groups worldwide. To protect the entire basin, the Central Government developed a system of joint operations of key reservoir groups in the Yangtze River Basin. This paper examines this joint operation system from a legal perspective and discusses its implementation as well as the challenges in practice. The following issues impede the effective implementation of the joint operation system: a lacking legal basis for the system, limitations related to the organizations that participate in the joint operations, limitations on the scope and objects of the joint operation system, and a lacking systematic structure for operation. This paper offers suggestions to improve the system.
{"title":"Improving Joint Operation System of Reservoir Groups in the Yangtze River Basin: A Legal Discussion","authors":"Qiu-Lan Qiu, L. Dai, H. V. Van Rijswick","doi":"10.1163/24686042-12340091","DOIUrl":"https://doi.org/10.1163/24686042-12340091","url":null,"abstract":"\u0000 As China’s largest river basin, the Yangtze River Basin has the most mega reservoir groups worldwide. To protect the entire basin, the Central Government developed a system of joint operations of key reservoir groups in the Yangtze River Basin. This paper examines this joint operation system from a legal perspective and discusses its implementation as well as the challenges in practice. The following issues impede the effective implementation of the joint operation system: a lacking legal basis for the system, limitations related to the organizations that participate in the joint operations, limitations on the scope and objects of the joint operation system, and a lacking systematic structure for operation. This paper offers suggestions to improve the system.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48461700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340085
Miharu Hirano
The development of water law as environmental law may trigger disputes over investment projects, which could find their way to international investment arbitration. Consequently, domestic water law and administration can be subjected to international scrutiny. This article analyses relevant investment treaty provisions and cases concerning water resources management to examine (i) when water disputes can be submitted to investment arbitration and (ii) what standards tribunals have applied to settle them. It demonstrates that water disputes over investment projects can widely be covered by investment treaties, but they do not automatically turn water resources into legally protected commodities. Investment arbitration is commonly used by foreign investors to challenge the legality of water-related measures adopted by host States under an applicable investment treaty, it can also be used to enforce domestic environmental law. In most controversial cases, arbitral tribunals applied reasoned decision-making and regulatory coherence as emerging global regulatory standards.
{"title":"Settling Water Disputes through International Investment Arbitration: When and by What Standards?","authors":"Miharu Hirano","doi":"10.1163/24686042-12340085","DOIUrl":"https://doi.org/10.1163/24686042-12340085","url":null,"abstract":"\u0000 The development of water law as environmental law may trigger disputes over investment projects, which could find their way to international investment arbitration. Consequently, domestic water law and administration can be subjected to international scrutiny. This article analyses relevant investment treaty provisions and cases concerning water resources management to examine (i) when water disputes can be submitted to investment arbitration and (ii) what standards tribunals have applied to settle them. It demonstrates that water disputes over investment projects can widely be covered by investment treaties, but they do not automatically turn water resources into legally protected commodities. Investment arbitration is commonly used by foreign investors to challenge the legality of water-related measures adopted by host States under an applicable investment treaty, it can also be used to enforce domestic environmental law. In most controversial cases, arbitral tribunals applied reasoned decision-making and regulatory coherence as emerging global regulatory standards.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44895651","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340083
Amael Notini Moreira Bahia, L. C. Lima
This article aims at understanding the environmental perspective of the human right to water in the case law of the Inter-American Court of Human Rights (IACtHR). The paper firstly introduces the human right to water in general international law. Secondly, it examines the constructions implemented in the jurisprudence of the IACtHR. Thereafter, it goes on to discuss the Advisory Opinion n 23/17 innovations regarding human rights water in environmental perspective. Finally, the repercussion of this decision is presented in the context of the recent jurisprudence of the IACtHR, which recognizes the interconnection of the promotion of the human right to water and the protection of water resources. The article argues that, despite the jurisdictional challenges to the human right to water in the IACtHR, the integration of the protection of the environment and the human right to water provides a new normative perspective in domestic and international human rights law for the protection and utilization of water resources.
{"title":"The Environmental Perspective of the Right to Water in the Case Law of the Inter-American Court of Human Rights","authors":"Amael Notini Moreira Bahia, L. C. Lima","doi":"10.1163/24686042-12340083","DOIUrl":"https://doi.org/10.1163/24686042-12340083","url":null,"abstract":"\u0000 This article aims at understanding the environmental perspective of the human right to water in the case law of the Inter-American Court of Human Rights (IACtHR). The paper firstly introduces the human right to water in general international law. Secondly, it examines the constructions implemented in the jurisprudence of the IACtHR. Thereafter, it goes on to discuss the Advisory Opinion n 23/17 innovations regarding human rights water in environmental perspective. Finally, the repercussion of this decision is presented in the context of the recent jurisprudence of the IACtHR, which recognizes the interconnection of the promotion of the human right to water and the protection of water resources. The article argues that, despite the jurisdictional challenges to the human right to water in the IACtHR, the integration of the protection of the environment and the human right to water provides a new normative perspective in domestic and international human rights law for the protection and utilization of water resources.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43064242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340092
P. Thielbörger
The article reflects on 20 years of the human right to water since its recognition in the groundbreaking General Comment No. 15 of the Committee on Economic, Social and Cultural Rights. It traces the right’s late and only indirect legal recognition in human rights law, and portrays its normative content along the lines of water availability, quality and accessibility. As two important trends, the paper points to the growing link between water security and the human right to water as a consequence of climate change, as well as to the responsibility of corporations for the human right to water. It concludes that, while the two last decades were focused on the recognition of the right, the coming decades should concentrate on the right’s realization which is lagging behind, for instance in the field of groundwater protection.
{"title":"Happy Birthday: The Human Right to Water at 20","authors":"P. Thielbörger","doi":"10.1163/24686042-12340092","DOIUrl":"https://doi.org/10.1163/24686042-12340092","url":null,"abstract":"\u0000 The article reflects on 20 years of the human right to water since its recognition in the groundbreaking General Comment No. 15 of the Committee on Economic, Social and Cultural Rights. It traces the right’s late and only indirect legal recognition in human rights law, and portrays its normative content along the lines of water availability, quality and accessibility. As two important trends, the paper points to the growing link between water security and the human right to water as a consequence of climate change, as well as to the responsibility of corporations for the human right to water. It concludes that, while the two last decades were focused on the recognition of the right, the coming decades should concentrate on the right’s realization which is lagging behind, for instance in the field of groundwater protection.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43795415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340089
Dinara R. Ziganshina
Sound policies and enforceable water legislation are key to transforming water management under the increasing water demand and climate change. In recent years, diverse water regulatory frameworks have evolved in the Central Asian countries to regulate the management and development of water resources and the provision of water services. This paper provides an overview of the Central Asian countries’ water legislation with focus on water management institutions at national, basin and local levels, introduction of economic mechanisms in water use and management as well as provisions related to human right to water and the environmental protection. Based on the resultant insights, the paper identifies five recent trends and areas for further improvement, including the need to (1) strengthen water regulatory frameworks as a part and parcel of the overall political and economic transformations in the countries; (2) reform water institutions with a clear focus on the sector performance and foster coordination between different stakeholders; (3) enable context-specific arrangements for workable basin and local water management; (4) address the issues of human and environmental needs on water, which are becoming increasingly important under the impact of climate change, industrialization, and urbanization; and (5) expand the effectiveness of economic mechanisms in water use and regulation to ensure cost recovery and investment flow into the sector.
{"title":"Water Law Reforms in Central Asian Countries: Recent Trends and Developments","authors":"Dinara R. Ziganshina","doi":"10.1163/24686042-12340089","DOIUrl":"https://doi.org/10.1163/24686042-12340089","url":null,"abstract":"\u0000 Sound policies and enforceable water legislation are key to transforming water management under the increasing water demand and climate change. In recent years, diverse water regulatory frameworks have evolved in the Central Asian countries to regulate the management and development of water resources and the provision of water services. This paper provides an overview of the Central Asian countries’ water legislation with focus on water management institutions at national, basin and local levels, introduction of economic mechanisms in water use and management as well as provisions related to human right to water and the environmental protection. Based on the resultant insights, the paper identifies five recent trends and areas for further improvement, including the need to (1) strengthen water regulatory frameworks as a part and parcel of the overall political and economic transformations in the countries; (2) reform water institutions with a clear focus on the sector performance and foster coordination between different stakeholders; (3) enable context-specific arrangements for workable basin and local water management; (4) address the issues of human and environmental needs on water, which are becoming increasingly important under the impact of climate change, industrialization, and urbanization; and (5) expand the effectiveness of economic mechanisms in water use and regulation to ensure cost recovery and investment flow into the sector.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48780499","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340082
Yang Liu
In the context of water scarcity exacerbated by climate change, clarification of the concept of ‘vital human needs’ versus the right to water as found in General Comment No. 15 and SDG Target 6.1, is needed to determine who enjoys vital human needs for what and whether or not vital human needs are prioritized. The article concludes that parallel concepts in General Comment No. 15 and the SDG Target 6.1 can help clarify the meaning and scope of the highly obscure term ‘vital human needs’ for water under article 10(2) of the UN Watercourses Convention.
{"title":"Interpreting ‘Vital Human Needs’ under the UNWC","authors":"Yang Liu","doi":"10.1163/24686042-12340082","DOIUrl":"https://doi.org/10.1163/24686042-12340082","url":null,"abstract":"\u0000 In the context of water scarcity exacerbated by climate change, clarification of the concept of ‘vital human needs’ versus the right to water as found in General Comment No. 15 and SDG Target 6.1, is needed to determine who enjoys vital human needs for what and whether or not vital human needs are prioritized. The article concludes that parallel concepts in General Comment No. 15 and the SDG Target 6.1 can help clarify the meaning and scope of the highly obscure term ‘vital human needs’ for water under article 10(2) of the UN Watercourses Convention.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45074063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-07DOI: 10.1163/24686042-12340087
Stellina Jolly, Gayathri D. Naik
Recognition of the right to the environment as a human right in several jurisdictions revolutionised the approach towards environmental protection. Nevertheless, the right to the environment has an anthropogenic dimension, and this recognition could not mitigate the environmental crisis faced by the planet. In response to this increasing ecological crisis, the concept of recognising the rights to nature evolved. The Indian judiciary propounded the river Ganges and Yamuna; Glaciers, Gangotri, and Yamunotri as legal personalities and granted them the rights commensurate with that of a human being. This trend gained attention in Bangladesh, which gave all its rivers rights and legal personhood in 2019. Though the decisions followed the more prominent global trend, these decisions differ from the worldwide movement and their decisions in the articulation of rights and implementation. This paper critically evaluates the legal developments in the rights to nature jurisprudence in India and Bangladesh, focusing on the right to rivers. A critical understanding of the judicial developments is essential in analysing the potential of giving the rights of rivers in improving environmental protection strategies. Considering the impact of these judgments in the transboundary context, the paper looks into the impacts and implications of this recognition on transboundary river governance in India and Bangladesh. The article articulates an eco-centric approach as the starting point for evolving a global perspective in recognising the rights of rivers.
{"title":"Rivers as Legal Personalities in India and Bangladesh from an Eco-Centric Perspective: Balancing Developmental Needs and Environmental Protection","authors":"Stellina Jolly, Gayathri D. Naik","doi":"10.1163/24686042-12340087","DOIUrl":"https://doi.org/10.1163/24686042-12340087","url":null,"abstract":"\u0000 Recognition of the right to the environment as a human right in several jurisdictions revolutionised the approach towards environmental protection. Nevertheless, the right to the environment has an anthropogenic dimension, and this recognition could not mitigate the environmental crisis faced by the planet. In response to this increasing ecological crisis, the concept of recognising the rights to nature evolved. The Indian judiciary propounded the river Ganges and Yamuna; Glaciers, Gangotri, and Yamunotri as legal personalities and granted them the rights commensurate with that of a human being. This trend gained attention in Bangladesh, which gave all its rivers rights and legal personhood in 2019. Though the decisions followed the more prominent global trend, these decisions differ from the worldwide movement and their decisions in the articulation of rights and implementation. This paper critically evaluates the legal developments in the rights to nature jurisprudence in India and Bangladesh, focusing on the right to rivers. A critical understanding of the judicial developments is essential in analysing the potential of giving the rights of rivers in improving environmental protection strategies. Considering the impact of these judgments in the transboundary context, the paper looks into the impacts and implications of this recognition on transboundary river governance in India and Bangladesh. The article articulates an eco-centric approach as the starting point for evolving a global perspective in recognising the rights of rivers.","PeriodicalId":29889,"journal":{"name":"Chinese Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":0.8,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48253800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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