Current debate
Despite its potential to be applied to many global environmental issues, PPP is not yet recognized as a customary international standard (Heine, et al., 2020). This is due to the myriad ways in which states define PPPs and shape their implementation in their domestic legal systems, a complexity that arises precisely because PPPs relate to so many broad areas, including environmental protection and human health, with incentives. for economic activities (Schwartz, 2010). Beyerlin and Marauhn (2011) describe that PPP has a normative quality as a rule rather than as a principle, as it is also not designed to be considered in making relevant decisions that occur when producing or consuming a product. entails a cost for a product. a third, not intended to be used solely for interpretive guidance. They claim that the PPP directly calls on states to ensure that, in all cases where the environment has been, or will be, polluted, the person responsible bears the costs of cleaning up or preventing pollution.
Sands and Peel (2012) explain that the application of PPP to specific cases and situations remains open to interpretation, especially in relation to the nature and scope of the costs included and the circumstances in which the principle will not apply. However, the principle has been widely supported and is closely related to the rules governing civil and state liability for environmental damage, the permissibility of certain forms of state subsidies and the recognition in various instruments by developed countries of the responsibilities they have at the international level. the pursuit of sustainable development taking into account the pressures that their societies exert on global development. This is also expressed in the CBDR principle, which is found in many environmental treaties adopted over the last 30 years.
More recently, the PPP has been discussed in the context of international climate change law, although it is not explicitly mentioned in the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol or the ‘Paris Agreement (Mayer, 2018; Kodolova). & Solntsev, 2020). However, the PPP has been relevant in discussions on both losses and damages, and on the CBDR principle.
The UNFCCC defines losses and damage to include damage from climate change, both sudden onset events, such as cyclones, slow start processes, and rising sea levels. Losses and damages may include economic losses and non-economic losses (i.e., individual loss of life, health, or mobility; loss of territory, cultural heritage, indigenous or local knowledge). For years, UNFCCC parties have discussed who should take direct and indirect responsibility for the adverse effects of climate change (Heine et al., 2020). The PPP is especially significant in this debate, especially with regard to the cost of planned and actual damage, as well as the mechanisms for obtaining fair, viable and comprehensive repairs arising from climate-related impacts.
However, this is still difficult to achieve. While the CBDR principle promotes international cooperation to address environmental degradation, the PPP includes methods for distributing the costs of pollution through taxes, charges, and liability laws that are often more effective when used within a country, not internationally. In the context of the Paris Agreement, it is clear that greenhouse gas emissions from parts of developed countries largely determine current global emissions (Kodolova and Solntsev, 2020). Consequently, it is those emissions that will make it possible — or impossible — to limit temperature increases to 1.5 ° C from pre-industrial levels. This does not mean that parts of developing countries are exempt from any liability. In fact, under the PPP approach all parties to the Paris Agreement would have the status of polluters. In this sense, indirect forms of PPP can be found in the nationally determined contributions of the Paris Agreement, climate finance obligations, and emissions trading schemes. With these mechanisms, states recognize their responsibilities to exacerbate climate change and propose ways to reduce their emissions and offer other solutions.
Without attempting to underestimate the flexibility and approach offered by the CBDR principle, some scholars try to apply the Transboundary Damage Prevention (PTH) principle instead of a substantial principle that guides states in the fight against climate change (Zahar, 2020). . The PTH is based on the obligation of states not to emit greenhouse gas emissions that exceed the capacity of their sinks, according to the preamble of the UNFCCC:
States have … the sovereign right to exploit their own resources in accordance with their own environmental and development policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause harm to the environment. environment of other states or areas beyond national boundaries. jurisdiction.
Other scholars believe that state practice does not conceive that all costs should be borne by the polluter (Mayer, 2018). An example of this can be found in the draft guidelines of the International Law Commission on the Protection of the Atmosphere. This document expressly excludes issues relating to PPPs, the precautionary principle and the CBDR principle at the request of states (ILC, 2020). Despite this, climate advocates rely on the CBDR principle to hold states accountable for much of the negative impacts of climate change (Mayer, 2018).
These advances in the international climate regime are being introduced into the work of the World Bank and the International Monetary Fund through the Helsinki Principles of 2019 (Principle 3), “Working towards measures that result in effective price fixing carbon “, where global finance ministers are committed to making pollutants pay for carbon emissions through taxes, trade schemes and reduced or eliminated subsidies for fossil fuels (De Sadeleer, 2020). The Helsinki Principles Explanatory Note refers to the use of price-based instruments to achieve the emission reduction targets of the Paris Agreement (Heine et al., 2020). The draft Global Environment Pact mentions the PPP in the following terms: “The Parties shall ensure that the costs of pollution prevention, mitigation and repair, and other environmental alterations and degradation are, to the greatest extent possible, by its author “(Article 8).
