A theme which currently dominates environmental regulation in Canada is for a strengthening of the "polluter pays" approach to environmental regulation. This trend sees those who impair the environment held increasingly financially responsible for their actions through such mechanisms as a new generation of statutory liabilities which include liability for environmental response and cleanup charges, the requirement of security in the event of environmental contamination, and the creation of statutory civil causes of action designed to assist claimants in recovering for losses resulting from environmental contamination. These mechanisms are supplemented by an increasing willingness by the courts to give serious consideration to innovative new approaches by private claimants to hold polluters civilly accountable for toxic tort related claims. As a result, those in Canada with potential exposure to this new generation of environmental liabilities will inevitably turn to the insurance industry for coverage. Ironically, it is these same new liabilities which will make it increasingly difficult for insurers to provide the desired coverage. Further, in the event that such coverage is provided, insurers will be required to be especially diligent in evaluating and delineating those environmental risks which they are prepared to cover. Many industrial and commercial enterprises will require environmental impairment insurance in order to carry out operations subject to environmental risk. Insurers providing environmental insurance in this context will effectively find themselves cast into the somewhat unlikely role of environmental regulators within Canadian society. For more than fifty years the insurance industry in Canada has provided a wide range of insurance products for liability resulting from impairment of the natural environment. In developing and marketing environmental impairment insurance products the insurance industry has primarily relied upon the risk-based analysis which it has historically utilized to provide coverage for more traditional insurance products such as fire, automobile, and marine insurance. However, it is submitted that the attempts by the industry to provide environmental impairment insurance has been fraught with problems, and the success of the products which have been provided has been limited. This in turn raises serious questions as to the ability of the insurance industry to assume responsibility for the regulation of environmental impairment in the future. It is the primary hypothesis of this thesis that the insurance industry has experienced significant difficulties in providing environmental impairment liability insurance in Canada, and that these difficulties are due in large part to the inability of the industry to accurately predict the incidence of loss associated with environmental impairment in Canada. Further, the difficulties with prediction experienced by the insurance industry are primarily the result of its failure to take into account perceptions of environmental risk by the Canadian public and by environmental decision-makers. Finally, this inability to accurately predict has been accompanied by the failure of the insurance industry to recognize the problem, resulting in overconfidence by the industry with respect to its environmental impairment liability products. / Law, Peter A. Allard School of / Graduate

In recent years the problem of water pollution has been recognized as a meta-problem of unexpected magnitude and complexity. Early attempts to control pollution were stifled by the property-oriented common law of riparian rights and by the lack of Authorities possessing adequate jurisdiction and funds. The object of this paper is to delineate the proper legislative and administrative field of water pollution control, with particular reference to British Columbia's pollution control legislation. As a background, the common law relating to water pollution is sketched and its adequacy evaluated. Early British Columbia Pollution control legislation is outlined in an attempt to determine the roots of the present comprehensive legislation. The Pollution Control Act 1956 is examined, with particular attention to the administrative tribunal created thereunder. Board procedures are seen to be informal and dependent upon direct communication and negotiation with individuals concerned. An attempt is made to determine the criteria upon which the Board acts in setting effluent standards in waste disposal permits granted by it. These standards are found to be vitually completely in the Board's discretion, but necessary (with some limitations) for flexible policy administration. The Board has several means of enforcement at its command including prosecution under the Act, or under the Criminal Code and civil proceedings at the suit of the Attorney-General. To determine whether civil actions for pollution lie apart from the Act, the question of whether riparian rights have been abrogated in British Columbia by water appropriation legislation is considered. The evidence indicates that actions by riparian owners will continue to lie. The fact that parties hold either water licences or pollution control Board permits makes no difference if pollution in fact exists. The Board is an administrative tribunal; but it may at certain stages of its permit issuing procedure be required to act judicially. At those stages, the Board's decision is open to review by the courts. Under the present legislation a person who objects to the grant of a permit is not entitled to an oral hearing, though he is entitled to file written representations in support of his objection. There appears to be no conflict among the numerous pollution control provisions contained in various provincial statutes. The Pollution Control Act is clearly the governing legislation. Federal Legislation relating to pollution is validly enacted under Federal Fisheries and Navigation powers; and in a case of direct conflict will override the provincial legislation. From the preceding examination of the Act, it is concluded that while certain minor changes suggested might to some degree remedy the present legislation, what is required is a policy making, expert tribunal. An important recommendation is that to secure individual rights, a hearing should be granted every person who files an objection to a permit application. New legislation recently introduced in the British Columbia Legislature provides for appointment of a Director, who will undertake day-to-day administration of the Act. However, the Board will continue to be subject to direction by the Executive Council, and the right to a full oral hearing upon an objection will remain discretionary. / Law, Peter A. Allard School of / Graduate

Considering that the concept of sustainable development has a function of normative integration in international law, Article 31(3)(c) provides a legitimate basis of such systemic integration. At the same time, it displays the limitations of the harmonious solution drawn from its application because it works only within the rigid consent-based framework in which the referenced rules should be legal “rules” and should be “applicable in the relations between the parties.” International jurisprudence suggests supplemental elements to overleap the consensual limitations in the application of Article 31(3)(c): a generic term and the object and purpose of the treaty. These text-based and the object-and-purpose-based developmental interpretative techniques enable interpreters to consider legal rules that are not “any relevant rules of international law applicable in the relations between the parties” under Article 31(3)(c).

In 1992, the Americans completed its withdrawal from the Philippines, ending almost a century of U.S. military presence. However, it was soon discovered that the U.S. left behind several contaminated sites at its former military bases in the Philippines due to inadequate hazardous waste management. It appears that the U.S. Department of Defense failed to implement clear and consistent environmental policies at Clark and Subic. The U.S. maintains that it is under no obligation to undertake further cleanup at its former installations inasmuch as the Philippines has waived its right to do so under the basing agreement. It will be argued that the Philippines made no such waiver under the Manglapus-Schultz Agreement. Thus, the U.S. remains responsible under international law for the resulting environmental damage at its former bases. States have the responsibility under customary international law to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. A state will be responsible if it breaches this international obligation. It will be argued that the U.S. breached its obligation under international law when activities within its effective control caused significant environmental damage to areas forming part of Philippine territory. Such a breach may also result in the violation of the emerging right to a healthy environment. Existing human rights, such as the right to life and health, right to food and water, right to a safe and healthy working environment and right to information, will be applied from an environmental perspective to determine whether the Filipinos' right to a healthy environment was violated. While a legal claim can be made for the remediation of the environment and compensation of the victims, it will be argued that existing mechanisms for the settlement and adjudication of international claims are inadequate. States are generally reluctant to submit to the jurisdiction of international tribunals and most of these fora do not allow non-state entities to appear before them. Thus, it would be argued that the most promising approach may well be through political and diplomatic means. / Law, Peter A. Allard School of / Graduate

The thesis deals with the relationship between ecology and law in nuclear energy and the possible impact on the environment. The first part briefly summarizes the most important historical approaches to ecology and describes environmental law in the Czech Republic and the EU. The next section is focused on law in the area of construction and operation of nuclear power plants in the Czech Republic and the EU. The fourth chapter deals with operation of nuclear power plant Temelín and assessment the legislation. The fifth chapter is dedicated to various forms of longstanding conflict between the Czech Republic and Austria.

Orientador: Luci Hidalgo Nunes / Tese (doutorado) - Universidade Estadual de Campinas, Instituto de Geociencias / Made available in DSpace on 2018-08-24T08:30:58Z (GMT). No. of bitstreams: 1 Barbin_NiciaBeatrizCruzBarduchi_D.pdf: 2240081 bytes, checksum: e1e20f161f34eb06cf71dc46735e745b (MD5) Previous issue date: 2013 / Resumo: A Lei nº 6.938/1981, que dispôs sobre a Política Nacional de Meio Ambiente, em vigor há mais de trinta anos, foi fundamental para a formação do Direito Ambiental Brasileiro. O presente trabalho teve por finalidade avaliar as influências dos dispositivos dessa lei na formação do Direito Ambiental e sua contribuição no tratamento que passou a ser dispensado às questões ambientais, tendo como foco principal o uso do solo, eis que nele é que ocorre a maioria dos impactos ambientais. Essa legislação trouxe ao sistema jurídico positivo nacional os ideais gravados na Declaração de Estocolmo de 1972, dentre os quais constava o planejamento racional, que passou a integrar a PNMA como princípio da racionalização do uso do solo. O uso e a ocupação do solo decorrem de conjunturas sociais e históricas que até recentemente não contemplavam o fator ambiental, o que tem resultado em certas situações colidentes com o rigor excessivo que, com frequência, se pretende na proteção ambiental, cuja solução, muitas vezes, depende da compreensão dos fundamentos do Direito, especialmente dos princípios. O princípio da racionalização do uso do solo, previsto na PNMA, servia à orientação das ações governamentais mas não auxiliava na solução desses conflitos. Com a promulgação da Constituição Federal de 1988, que recepcionou a Lei nº 6.938/81, seus valores passaram a estruturar a construção do Direito Ambiental. Através da análise do sistema jurídico de proteção ambiental brasileiro compreendendo a PNMA, os Princípios Ambientais e demais normas relativas ao uso do solo, associada à metodologia de pesquisa bibliográfica envolvendo a literatura publicada sobre o assunto, buscou-se a identificação do princípio da racionalização do uso do solo. Como resultado, verificou-se a coerência desse princípio com as normas constitucionais e sua capacidade de servir à compreensão, harmonização e integração do ordenamento jurídico. Procura-se, assim, contribuir cientificamente com esse estudo na construção e consolidação da proteção ambiental, de modo que possa haver harmonia entre o desenvolvimento e o uso do solo e nas relações sociais e jurídicas deles dependentes / Abstract: The Law nº 6.938/1981, which regulate the National Environmental Policy - PNMA, existing 30 years ago, was crucial for the development of the Brazilian Environmental Law.The objective of this work was to assess the influences of the terms of this law, in the development of Environmental Law and its contribution to the way the environmental issues started to be addressed, with its main focus on the land use, because the majority of the environmental impact happens on the soil.This legislation brought to the legal national juridical system the ideals registered in the 1972 Stockholm Declaration, amongst which the rational planning was part, and it was included in the PNMA as the principle for the rationalization of the usage of the land.The use and occupation of the soil are a consequence of social and historical conjunctures that until recently didn¿t take into account the environmental aspect, which has resulted in some clashing situations with the excessive rigor which, frequently, is intended in the environmental protection, which solution, often times depend on the comprehension of the Law, specially the principles.The principle of the rationalization of the use of the soil, as predicted at PNMA, was used to guide the governmental actions but didn¿t support the resolution of these conflicts. With the promulgation of Federal Constitution of 1988, that has received the Law No. 6938/81, the respective values started to build the Environmental Law.Through the analysis of the Brazilian juridical system environmental protection including the PNMA, the Environmental Principles and the other relative norms regarding the use of the soil, associated with the bibliographic research methodology including the published literature regarding the subject, the identification of the principle of the rationalization of the use of the soil was aimed. As a result, the coherence of this principle with the constitutional rules and its ability to serve as the comprehension, harmonization and integration of the juridical commandment has been verified. This way, it's possible to offer a scientific contribution with this study in the development and consolidation of the environmental protection, in a way that will allow for harmony between the development and the use of the soil and in the social and juridical relationships which depend upon them / Doutorado / Geologia e Recursos Naturais / Doutora em Ciências

Magister Legum - LLM / South Africa

Magister Legum - LLM / Trade and climate change intersect in many ways. Aside from the broad debate as to whether economic growth and trade adversely affect the environment, linkages are recognized between existing rules of the World Trade Organization (WTO) and rules established in various multilateral environmental agreements (MEAs). Controlling greenhouse gas (GHG) emissions promises to be a top priority on both national and international agendas, and special attention has been given to the relationship between the WTO and the emerging international regime on climate change. The unilateral use of carbon-related import restrictions risks triggering retaliation by trading partners. It also raises questions about whether such trade measures are consistent with countries’ obligations under the WTO. The WTO status of measures imposed not on products directly but on the methods by which they were produced, which is the case in carbon-related trade restrictions, is not clear. Whether such violations can be excused by exceptions for measures taken with the purpose to protect human life or health, or the environment, is an open question. There is also the question of whether solutions to the problem of the WTO’s inconsistency with regard to trade-related measures in climate change policy can be found. This paper explores the relationship between trade and climate change regimes, the potential areas of conflict, and what can be done to promote mutual gains. Apart from exploring the key issues and examining the conceptual underpinning of the two regimes, revealing important symmetries as well as some divergence, the paper is aimed at finding a more universal and long lasting solution to the WTO’s inconsistency of carbon-related to GHG emissions, both within and outside the WTO.

Magister Legum - LLM / This paper explores the relationship between trade and climate change regimes, the potential areas of conflict, and what can be done to promote mutual gains. Apart from exploring the key issues and examining the conceptual underpinning of the two regimes, revealing important symmetries as well as some divergence, the paper is aimed at finding a more universal and long lasting solution to the WTO's inconsistency of carbon-related to GHG emissions, both within and outside the WTO.

O presente trabalho tem por objetivo estudar o fundamento ético do direito universal ao meio ambiente ecologicamente equilibrado. Investiga-se a raiz humana da crise global atual, a exemplo do “antropocentrismo desordenado” advindo pelo relativismo prático. Analisa-se que a crise atual é ambiental, social e de valores, caracterizada como uma crise socioambiental. A partir disso, avalia-se a possibilidade de uma ética ambiental universal, alicerçada na lei natural, a qual tem como princípio central, a regra de ouro: não faças ao outro aquilo que não queres que te façam, presente em inúmeras tradições. Ademais, estuda-se o direito universal ao meio ambiente ecologicamente equilibrado, seus aportes teóricos, a previsão legal e a necessidade de lhe atribuir uma fundamentação ética. Como fundamento a este direito universal, apresenta-se a proposta de uma “ecologia integral”, trazida na Encíclica “Laudato si’ sobre o cuidado da casa comum”, pelo Papa Francisco, que inclui a ecologia ambiental, social, econômica, cultural, da vida cotidiana. A ecologia integral advém de uma ética ambiental universal, interpela a cada um e a cada comunidade a uma responsabilidade solidária em relação à natureza e ao próprio ser humano, possibilitando o combate à pobreza, desenvolvimento da dignidade dos excluídos e o cuidado da casa comum planetária. A metodologia adotada é a hipotético-dedutiva, com as técnicas de pesquisa bibliográfica e documental. Conclui-se que a ecologia integral, como fundamento ético ao direito universal ao meio ambiente ecologicamente equilibrado, está apta a colaborar na sua concretização, na superação da crise socioambiental e na preservação da própria vida humana. / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior, CAPES / This present work aims to study the ethical ground for the universal right to an ecologically balanced environment, by means of investigating the human root of the current global crisis such as the “excessive anthropocentrism” originated from practical relativism. Considered as a socio-environmental crisis characterized by environmental, social and moral issues, the possibility of a universal environmental ethics based on the natural law, the so-called golden rule, present in various traditions that states you should not do to your neighbour as you would not want done to you. In addition, this study looks into the universal right to the environment, from the ecological perspective, as well as to its theoretical contributions, legal forecast and to the necessity of an ethical foundation to it. As a basis for such universal right it is proposed an” integral ecology” as presented in the Encyclical Laudato Si by Pope Francis on care for our common home, which includes the environmental, social, economic, and cultural ecology of daily life. Integral ecology originates from a universal environmental ethics that calls each and every one and every community to a solidary responsibility in relation to nature and to the human being himself,as an integrated approach to combating poverty, restoring dignity to the excluded and at the same time providing care to our planetary common home. It is adopted the hypothectical-deductive methodology, using bibliographic and documentary techniques. In conclusion, integral ecology as a basis for the universal right to an ecologically balanced environment can effectively contribute to overcoming the socio-environmental crisis and to the preservation of human life itself.