Alexander Proelss

International liability for transboundary damage arising from stratospheric aerosol injections

The large-scale implementation of stratospheric aerosol injection (SAI) may potentially lead to disastrous transboundary damage. Before implementation of this technique is initiated, it is crucial to address the issue of compensation for potential victims of such damage. However, international law does so far not provide for a specific liability regime for SAI. This study assesses if and to what extent existing international rules on liability could be applicable to SAI damage. Apart from the assessment of the rules on State responsibility, the question whether States can generally be held internationally liable for damage arising from lawful activities is addressed. In addition, liability regimes concerning ultra-hazardous activities that are comparable to SAI are analysed, taking into account their potential relevance for the design of a future SAI liability regime. The issue of uncertainty is particularly challenging in the context of SAI, as usually evidence concerning the causality between implementation and potential damage would have to be produced. The study concludes that existing international liability rules are not capable of providing equitable and effective compensation for SAI damage. Still, valuable approaches can be found in these regimes in order to identify the main elements which a future SAI liability regime would have to address in order to ensure such compensation.

Protection of Cetaceans in European Waters—A Case Study on Bottom-Set Gillnet Fisheries within Marine Protected Areas

This article explores the legal regime of the protection of marine species and habitats within European waters by taking the protection of harbour porpoises in the German territorial sea and exclusive economic zone as an example. The analysis is based on a scientific assessment of the occurrence of and the anthropogenic impacts on harbour porpoises in the North Sea. The relationship between the protection of marine species within the European Union (EU) on the one hand and the Common Fisheries Policy of the EU on the other constitutes a classic example of a user-environment conflict. The article explores how such conflicts ought to be solved under the pertinent legal rules.

Carbon Capture and Storage from the Perspective of International Law

It is generally accepted that the carbon dioxide (CO2) concentration in the atmosphere should be reduced to limit its adverse effects on the earth’s climate. Alongside strategies to reduce CO2 emissions and improve the energy efficiency of industrial processes, technological approaches to climate change mitigation such as carbon capture and storage (CCS) are increasingly subject to debate. CCS represents one option in a larger portfolio of mitigation strategies for climate change. It consists of three distinct technological stages: separation, capture, and storage (also referred to as sequestration). CO2 released by combustion processes in power plants is separated from other emissions and captured. After transport to a suitable storage location, CO2 is isolated for extended periods to prevent its release into the atmosphere. The increasing relevance of CCS can be attributed to the fact that scientists suspect the existence of a huge number of geological formations on land and under the oceans with characteristics suitable for the storage, or geosequestration, of CO2.

The Operation of Gliders Under the International Law of the Sea

In contrast to traditional ocean observation systems such as research vessels and moorings, gliders, a specific category of autonomous underwater vehicles, can be operated individually or as fleets. These devices are designed to allow for continuously and remotely commanded ocean observation from the surface down to at least 1 km depth and deliver data with high horizontal and temporal resolution. This article assesses the legal framework and identifies the legal conditions that ought to be fulfilled in order to deploy and operate gliders in conformity with the international law of the sea.

De-extinction, nomenclature, and the law

How we name resurrected species can have legal implications, particularly for conservation The concept of de-extinction, aimed at restoration of extinct species, is controversial (1). Improvements in de-extinction techniques (back-breeding, cloning, and genomic engineering) now provide the opportunity to attempt to resurrect extinct species (2, 3). Up to 25 extinct animal species have been proposed as candidates for de-extinction (4) on the basis of their high public profiles, availability of well-preserved DNA, existence of closely related species who may serve as host or surrogate parents, and availability of suitable habitat in the case of planned reintroductions (1). From a legal point of view, it will be crucial to clarify how de-extinct species will be classified, in particular, in relation to their potential conservation status under national and international law. We discuss implications for conservation laws, which largely depend on nomenclature, and laws regarding the release of genetically engineered species, which do not, and argue for unique naming of de-extinct species.

Sustainable Ocean Resource Governance

Sustainable Ocean Resource Governance offers perspectives on the legal interface between sustainable economic growth, effective marine resource management and environmental protection of the sea.

Principles of EU Environmental Law: An Appraisal

By drawing on the relevant jurisprudence of the Court of Justice of the European Union (ECJ), secondary Union law and pertinent statements rendered by the Union institutions, this chapter assesses how the principles of environmental law codified in Article 191 (2) TFEU have been implemented by the institutions of the Union. While compared to the situation under public international, European law has so far not shown significant effects with regard to a substantiation of the principle of prevention, the source principle and the polluter-pays principle, it will be demonstrated that the Union institutions have shaped and operationalized the precautionary principle in a way that goes far beyond what is accepted on the international level. Significantly influenced by the European Commissionʼs Communication on the Precautionary Principle, the ECJ has assigned specific legal consequences to that concept that range from clarifying how the European legislator ought to deal with different levels of uncertainty and environmental risk to the need to observe the principle of proportionality when implementing precautionary measures. By assigning broad discretion to the institutions involved in the legislative process, it has furthermore contributed to the development of functional limitations to its own jurisdiction. Even though violations of the precautionary principle can only be asserted in situations where the Union institutions manifestly ignore the limitations of their powers, or where they manifestly exceed the limits of their discretion, the chapter submits that the approach pursued by the Union institutions has strengthened rather than weakened its normative relevance, and fostered its development into a fundamental principle of environmental law.

Tracey Epps and Andrew Green, Reconciling Trade and Climate: How the WTO Can Help Address Climate Change

This important book deals with the relationship between world trade law and climate change policy. It takes a different perspective than the majority of publications in the field. While the rules of the World Trade Organization (WTO), to the extent that they support continuing liberalisation and generally unrestricted international trade, have come to be seen as a central part of the problem, Epps and Green argue that the objectives of mitigating climate change on the one hand and deterring protectionism on the other do not necessarily conflict with each other. On the contrary, their hypothesis is that synergies exist between these goals, and, through the manner where they reinforce each other, that they have potential to increase social welfare. The authors thus assess the potential of international trade law as a tool for addressing the challenges of climate change. In light of this, the WTO is not considered as the “bad guy” in international relations, whose regime prevents States from implementing trade-related measures in order to be able to achieve the ultimate aim of safeguarding that the increase in global temperature should be below 2 degrees Celsius, but rather as a key actor with regard to the fulfillment of that target. While “WTO Members have very different perceptions of what the trading system ought to do on climate change” (Pascal Lamy), the approach followed in this book may ultimately have a stronger impact on the attitude of States concerning the relationship between WTO law and the climate change regime than the somewhat fruitless repeated pleas for “greening” the WTO.

Ocean Upwelling and International Law

Ocean upwelling pipes are used to upwell nutrient-rich deeper waters in order to fertilize the surface ocean. This article addresses whether international legal rules exist governing the deployment of ocean pipes and which states are entitled to exercise jurisdiction over these objects. Taking into account the need to avoid user conflicts and unauthorized deployment of upwelling pipes in marine areas under the jurisdiction of third states, the article advocates the development of nonbinding guidelines that would implement the general terms of the United Nations Convention on the Law of the Sea.