Property : a regulatory instrument for protecting private and public interests in the environment

Property in an elusive concept. In many respects it has been regarded as a source of authority to use, develop and make decisions about whatever is the subject matter of this right of ownership. This is true whether the holder of this right of ownership is a private entity or a public entity. Increasingly a right of ownership of this kind has been recognised not only as a source of authority but also as a mechanism for restricting or limiting and perhaps even prohibiting existing or proposed activities that impact upon the environment. It is increasingly therefore an instrument of regulation as much as an instrument of authorisation. The protection and conservation of the environment are ultimately a matter of the public interest. This is not to suggest that the individual holders of rights of ownership are not interested in protecting the environment. It is open to them to do so in the exercise of a right of ownership as a source of authorisation. However a right of ownership – whether private or public – has become increasingly the mechanism according to which the environment is protected and conserved through the use of rights of ownership as a means of regulation. This paper addressed these issues from a doctrinal as well as a practical perspective in how the environment is managed.

Addressing vulnerability and human rights in disaster response mechanisms in Oceania

The Oceania region is an area particularly prone to natural disasters such as cyclones, tsunamis, floods, droughts, earthquakes and volcanic eruptions. Many of the nations in the region are Small Island Developing States (SIDS), yet even within wealthy states such as Australia and New Zealand there are groups which are vulnerable to disaster. Vulnerability to natural disaster can be understood in human rights terms, as natural disasters threaten the enjoyment of a number of rights which are guaranteed under international law, including rights to health, housing, food, water and even the right to life itself. The impacts of climate change threaten to exacerbate these vulnerabilities, yet, despite the foreseeability of further natural disasters as a result of climate change, there currently exists no comprehensive international framework for disaster response offering practical and/or legally reliable mechanisms to assist at‐risk states and communities. This paper sets out to explore the human rights issues presented by natural disasters and examine the extent to which these issues can be addressed by disaster response frameworks at the international, regional and national levels.

Crime and the commodification of carbon

Carbon will be the world's biggest market. Barclays was the first UK bank to set up a dedicated carbon trading desk to help clients, and Barclays Capital is the most active player in the emissions trading market having traded 300 million tonnes as at February 2007. (Barclays, 2007: 1)

Legal activism for ensuring environmental justice

This article reviews some of the roles environmental lawyers have played in ensuring environmental justice in Bangladesh. It leans on law and social movement theories to explicate the choice (and ensuing success) of litigation as a movement strategy in Bangladesh. The activists successfully moved the courts to read the right to a decent environment into the fundamental right to life, and this has had the far-reaching effect of constituting a basis for standing for the activists and other civil society organisations. The activists have also sought to introduce emerging international law principles into the jurisprudence of the courts. These achievements notwithstanding, the paper notes that litigation is not a sustainable way to institute enduring environmental protection in any jurisdiction and recommends the utilisation of the reputation and recognition gained through litigation to deploy or encourage more sustainable strategies.

Proposed REDD+ project for the Sundarbans : legal and institutional issues

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

Pro Bono partnerships : community lawyering to promote environmental justice

Rural communities across Australia are increasingly being asked to shoulder the environmental and social impacts of intensive mining and gas projects. Escalating demand for coal seam gas (CSG) is raising significant environmental justice issues for rural communities. Chief amongst environmental concerns are risks of contamination or depletion of vital underground aquifers as well as treatment and disposal of high-saline water close to high quality agricultural soils. Associated infrastructure such as pipelines, electricity lines, gas processing and port facilities can also adversely affect communities and ecosystems great distances from where the gas is originally extracted. Whilst community submission (and appeal) rights do exist, accessing expert independent information is challenging, legal terminology is complex and submission periods are short, leading ultimately to a lack of procedural justice for landholders and their communities. Since August 2012, Queensland University of Technology (QUT) has worked in partnership with not-for-profit legal centre - Queensland’s Environmental Defenders Office (EDO) - to help better educate communities about mining and CSG assessment processes. The project, now entering its third semester, aims to empower communities to access relevant information and actively engage in legal processes on their own behalf. Students involved in the project so far have helped to research chapters of a comprehensive community guide to mining and CSG law as well as organising multidisciplinary community forums and preparing information on land access and compensation rights for landholders. While environmental justice issues still exist without significant law reform, the project has led to greater awareness amongst the community of the laws relating the CSG. At the same time, it has led to a greater understanding by students and academics of real life environmental justice issues currently faced by rural communities.

Climate change and IMO technical and operational measures for reduction of emissions of greenhouse gas from ships

According to a study conducted by the International Maritime organisation (IMO) shipping sector is responsible for 3.3% of the global Greenhouse Gas (GHG) emissions. The 1997 Kyoto Protocol calls upon states to pursue limitation or reduction of emissions of GHG from marine bunker fuels working through the IMO. In 2011, 14 years after the adoption of the Kyoto Protocol, the Marine Environment Protection Committee (MEPC) of the IMO has adopted mandatory energy efficiency measures for international shipping which can be treated as the first ever mandatory global GHG reduction instrument for an international industry. The MEPC approved an amendment of Annex VI of the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) to introduce a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Considering the growth projections of human population and world trade the technical and operational measures may not be able to reduce the amount of GHG emissions from international shipping in a satisfactory level. Therefore, the IMO is considering to introduce market-based mechanisms that may serve two purposes including providing a fiscal incentive for the maritime industry to invest in more energy efficient manner and off-setting of growing ship emissions. Some leading developing countries already voiced their serious reservations on the newly adopted IMO regulations stating that by imposing the same obligation on all countries, irrespective of their economic status, this amendment has rejected the Principle of Common but Differentiated Responsibility (the CBDR Principle), which has always been the cornerstone of international climate change law discourses. They also claimed that negotiation for a market based mechanism should not be continued without a clear commitment from the developed counters for promotion of technical co-operation and transfer of technology relating to the improvement of energy efficiency of ships. Against this backdrop, this article explores the challenges for the developing counters in the implementation of already adopted technical and operational measures.

REDD+ and mangroves : a study on Sundarbans

Sundarbans, a Ramsar and World Heritage site, is the largest single block of tidal halophytic mangrove forest in the world covering parts of Bangladesh and India. Natural mangroves were very common along the entire coast of Bangladesh. However, all other natural mangrove forests, including the Chakaria Sundarbans with 21,000 hectares of mangrove, have been cleared for shrimp cultivation. Against this backdrop, the Forest Department of Bangladesh has developed project design documents for a project called ‘Collaborative REDD+ Improved Forest Management (IFM) Sundarbans Project’ (CRISP) to save the only remaining natural mangrove forest of the country. This project, involving conservation of 412,000 ha of natural mangrove forests, is expected to generate, over a 30-year period, a total emissions reduction of about 6.4 million tons of CO2. However, the successful implementation of this project involves a number of critical legal and institutional issues. It may involve complex legal issues such as forest ownership, forest use rights, rights of local people and carbon rights. It may also involve institutional reforms. Ensuring good governance of the proposed project is very vital considering the failure of the Asian Development Bank (ADB) funded and Bangladesh Forest Department managed ‘Sundarbans Biodiversity Conservation Project’. Considering this previous experience, this paper suggests that a comprehensive legal and institutional review and reform is needed for the successful implementation of the proposed CRISP project. This paper argues that without ensuring local people’s rights and their participation, no project can be successful in the Sundarbans. Moreover, corruption of local and international officials may be a serious hurdle in the successful implementation of the project.

IMO technical and operational measures for reduction of emissions of greenhouse gas from ships : perspectives of Asian countries

International shipping is responsible for about 2.7% of the global emissions of CO2. In the absence of proper action, emissions from the maritime sector may grow by 150% to 250% by 2050, in comparison with the level of emissions in 2007. Against this backdrop, the International Maritime Organisation has introduced a mandatory Energy Efficiency Design Index (EEDI) for new ships and the Ship Energy Efficiency Management Plan (SEEMP) for all ships. Some Asian countries have voiced serious reservations about the newly adopted IMO regulations. They have suggested that imposing the same obligations on all countries, irrespective of their economic status, is a serious departure from the Principle of Common but Differentiated Responsibility, which has always been the cornerstone of international climate change law discourse. Against this backdrop, this article presents a brief overview of the technical and operational measures from the perspective of Asian countries.

A jurisprudential model for sustainable water resources governance

The legal arrangements for the management of water resources are currently a complex matrix of rules of various kinds. These rules perform a diverse range of functions. Some are part of what may be described as the macro-legal system for the governance of water resources. This includes paralegal rules in the form of statements of value, objective, outcome or principles . Others are part of the micro-legal system for the governance of water resources. This includes traditional legal rules in the form of statements of standards in relation to individual conduct, behaviour or decision making. These legal arrangements may be international, regional, national or local. Accordingly some apply to nation states within the international community. Others apply to the regulatory agencies making decisions about water resources within nation states. Ultimately most of these legal arrangements apply to those who use and develop water resources for particular purposes and in particular locations. In accordance with this framework, rules explain how water resources should be used in particular circumstances and how decisions should be made to ensure the effective planning and regulation of water resources.

Property : an instrumental institution for environmental governance

Property in an elusive concept. In many respects it has been regarded as a source of authority to use, develop and make decisions about whatever is the subject matter of this right of ownership. This is true whether the holder of this right of ownership is a private entity or a public entity. Increasingly a right of ownership of this kind has been recognised not only as a source of authority but also as a mechanism for restricting or limiting and perhaps even prohibiting existing or proposed activities that impact upon the environment. It is increasingly therefore an instrument of control as much as an instrument of authorisation. The protection and conservation of the environment are ultimately a matter of the public interest. This is not to suggest that the individual holders of rights of ownership are not interested in protecting the environment. It is open to them to do so in the exercise of a right of ownership as a source of authorisation. However a right of ownership – whether private or public – has become increasingly the instrument according to which the environment is protected and conserved. This article addresses these issues from a doctrinal as well as a practical perspective about how the environment is managed. It does so in five ways: ●considering briefly property as a concept ●reviewing property in its historical context ●analysing property as a human right ●examining property in natural resources ●reviewing judicial approaches to property in natural resources.

Jurisprudential Challenges to the Protection of the Natural Environment

Nature exists. Humans exist. The behaviour of one impacts upon the other. The behaviour of humans is governed by the artificial contrivance described as the law. While the law can in this way control the behaviour of humans and the impact that human behaviour has on nature, the behaviour of nature is governed – if at all- in accordance with nature’s own sets of values which are quintessentially a matter for nature. The relationship between nature and humans may be the object of rules of law, but traditional legal doctrine dictates that humans but not nature are the subjects of the rules of law. The jurisprudence of the earth – it would appear – seeks to equalise in the eyes of the law nature as part of the global environment and humans as part of the global environment. How might this be done?

Proposed MBMs for reduction of greenhouse gas emissions from international shipping and the WTO rules

The international shipping sector is a major contributor to global greenhouse gas (GHG) emissions. The International Maritime Organisation (IMO) has adopted some technical and operational measures to reduce GHG emissions from international shipping. However, these measures may not be enough to reduce the amount of GHG emissions from international shipping to an acceptable level. Therefore, the IMO Member States are currently considering a number of proposals for the introduction of market-based measures (MBMs). During the negotiation process, some leading developing countries raised questions about the probable confl ict of the proposed MBMs with the rules of the World Trade Organisation (WTO). This article comprehensively examines this issue and argues that none of the MBM proposals currently under consideration by the IMO has any confl ict with the WTO rules.

Prevention of Pollution of the Marine Environment from Vessels : The Potential and Limits of the International Maritime Organisation

--Critically discusses the role of International Maritime Organization (IMO) in the protection of the marine environment --Presents a clear, updated, concise and critical overview of the IMO marine environmental legal instruments --A fresh outlook on the north-south tensions in the IMO marine environmental discourses --Critically examines the principle of common but differentiated responsibilities in the context of IMO This book examines the role of The International Maritime Organization (IMO) in the prevention and control of pollution of the marine environment from vessels with a particular reference to the current north-south tensions regarding the strategy for combating climate change in the maritime sector as well as the prevention of marine pollution from the ship-breaking industry. The IMO, a United Nations specialized agency, has been entrusted with the duty to provide machinery for cooperation among governments for the prevention and control of pollution of the marine environment from vessels. The organization is responsible for drafting legal instruments as well as for facilitating technical cooperation for the protection of the marine environment. Although IMO legal instruments are mainly targeted at the prevention of pollution of the marine environment from vessels, there is a trend towards a liberal interpretation of this, and the organization has expanded its work to areas like shipbreaking, which is essentially a land-based industry.