Future proofing the principle of no significant harm
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Future proofing the principle of no significant harm Joyeeta Gupta1 · Susanne Schmeier2 Accepted: 16 October 2020 / Published online: 2 November 2020 © The Author(s) 2020
Abstract The principle of ‘no significant harm’ as a way of addressing transboundary environmental challenges is both inadequately researched and inadequately implemented in many parts of the world. This paper addresses the questions: What is the nature of transboundary harm in the Anthropocene? Is the principle of no significant harm able to address current and preempt future transboundary harm in the field of water and environmental law? This special issue has focused on this principle in the arena of water law. This article integrates the findings in the context of a broader understanding of global harm in the Anthropocene. We draw 4 conclusions. First, conceptually harm is moving beyond direct inter-state harm between neighbouring countries to a multi-directional, multi-actor/multi-level harm, which is increasingly creeping and cumulative, with growing spatial and temporal characteristics. It thus requires moving beyond quibbling over what is ‘significant’ harm to recognize the climate emergency, the sixth biodiversity extinction, the huge damage to water systems and to realize that the threshold of ecosystem and human tolerance of damage are reducing rapidly. Second, however, the no-harm principle tends to be better developed in qualifying sovereignty in relation to transboundary harm on rivers than in the broader environmental and development arena as demonstrated by agenda 2030 which reverts to full permanent sovereignty. Third, legal scholarship, however, does provide a wide range of instruments for addressing harm before it occurs, after it has happened, and considering the differentiated economic capacity of the actors. Finally, the larger problem is that it is not individual projects or programmes that cause problems as much as national prioritization of economic growth which has led to externalizing the environment. The no-harm principle will be ineffective if it cannot be used to question the content of ‘growth’-led policies. There is need to future proof the no-harm principle. Keywords No-harm · No significant harm · Sovereignty · Responsibility · Equity · Water law · Environmental law · Sustainable development goals Abbreviations BAT Best available technology * Joyeeta Gupta [email protected] 1
Governance and Inclusive Development, Amsterdam Institute for Social Science Research, University of Amsterdam, IHE-Delft Institute for Water Education, Delft, Netherlands
2
IHE-Delft Institute for Water Education, Delft, Netherlands
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Vol.:(0123456789)
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J. Gupta, S. Schmeier
BATNEEC Best Available Technology Not Entailing Excessive Costs ICJ International Court of Justice ILC International Law Commission NCP Nature’s contributions to humans PCA Permanent Court of Arbitration SDG Sustainable development goals SI Special issue UNGA United Nations General Assembly
1 Introduction If the principle of not causing significant
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