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PRINCIPLES AND CONCEPTSChapter 3OF INTERNATIONAL ENVIRONMENTALLAW

3. PRINCIPLESAND

3. The development of environmental law duringthe past three decades has led to the emergence of an

CONCEPTSOF

increasing number of concepts, principlesand

INTERNATIONAL

norms (i.e. binding rules of international law).Thereason why principles and concepts playsuch

ENVIRONMENTAL LAW

important role is linked to the origin anddevelopment of international environmental law.Environmental law has developed mainly ina piecemeal fashion, not in a structured orderly way,

I.Introduction

ad hoc

responses to environmental threats andchallenges. Indeed, in the case of UNEP, this was1. This chapter provides an overview of the mainthe way till 1982 when the first ten year programme principles (i.e. fundamental doctrines onwhichof environmental law, often referred to asothers are based, or rules of conduct) and conceptsMontevideo Programme I, was agreed. Thereafter (i.e. central unifying ideas or themes)inthis has been prepared and approved bytheinternational environmental law. It identifiesGoverning Council for each subsequent ten years:important emerging principles and concepts,Montevideo Programme II in 1993 and Montevideodescribes the roles they play, and providesProgramme III in 2001. There are manyexamples to illustrate some of the ways in whichinternational arenas and many internationalthey have been applied. In doing so, it provides ainstruments dealing with specificenvironmental backdrop for the rest of this UNEP TrainingManual problems. Not surprisingly, therefore, principlesand assists the user in better understandingwhyand concepts have been repeated or referred to inspecific approaches to protecting the environmentmany different treaties or non-bindinginstruments.have come about and how theywork.The frequent inclusion of these principlesandUnderstanding the basic principles and conceptsconcepts in international legal instrumentswill facilitate a sound appreciation of many of thereinforces them and, together with state practice,treaties reviewed in this Manual, and in thewill continue to contribute to the creation of adevelopment and consolidation of internationalglobal framework for international environmentalenvironmental law. Comprehension of modernlaw.and evolving international environmental law andits different facts, needs not only knowledge of 4. Of particular importance are the principlestreaty law, but also the translation of principles andestablished at two important United Nationsconcepts into legally binding rules andconferences, the 1972 Conference on the Humaninstruments.Environment (“Stockholm Conference”) andthe1992 United Nations Conference on Environment

II. Overview of International EnvironmentalLaw

and Development (“UNCED”) in Rio deJaneiro.

Principles andConcepts

Both of these conferences produced declarations of principles (the “1972 Stockholm Declaration” and2. Principles and concepts embody acommonthe “1992 Rio Declaration”, respectively), whichground in international environmental law;andwere adopted by the United Nations Generalthey both reflect the past growth of internationalAssembly. Together with the hundredsof environmental law and affect its future evolution.international agreements that exist relating toPrinciples and concepts play important roles in protecting the environment (includinghumaninternational environmental law, which itself is onehealth), the principles in the 1972Stockholmof the most rapidly evolving areas of publicDeclaration and 1992 Rio Declaration are widely-international law. They can indicate the essentialregarded as the underpinnings of internationalcharacteristics of international environmental lawenvironmental law.and its institutions, provide guidance in interpretinglegal norms, constitute fundamental norms, and fill5. The Rio Declaration contains a preambleandin gaps in positive law. Principles andconceptstwenty-seven international environmental lawalso appear in national constitutions and laws;and principles that guide the internationalcommunitythey are referred to in, and influence, internationalin its efforts to achieve sustainable development.and national jurisprudence. Today, almost allSince the adoption of the Rio Declaration, major major binding and non-legally bindingdevelopments in international environmental lawinternational environmental instruments containor have taken place that affect the definition, statusrefer to principles or concepts and are engines inand impact of principles and conceptsinthe evolving environmental law.international environmental law. These

PRINCIPLES AND CONCEPTSChapter 3OF INTERNATIONAL ENVIRONMENTALLAWdevelopments include the negotiation and entry9. Some scholars believe the development of ainto force of several major multilateral agreements.single comprehensive treaty of fundamental(See chapters 1, 4, 7, 9, 10, 11, 12, 13, 14, 15 andenvironmental norms may be a future solutionto19 of thisManual).counteract fragmentation and provide clarity aboutthe legal status of various principles. Suchan6. A general characteristic of present internationaloverarching agreement may provide the legalenvironmental law is the utilization of non- bindingframework to support the further integrationof international instruments. Such texts areoftenvarious aspects of sustainable development,easier to negotiate and amend in the light of newreinforcing the consensus on basic legal norms both problems where scientific knowledge and publicnationally and internationally. It could thus createawareness can be the major factors pressing fora single set of fundamental principles and conceptsinternational action. Principles in non-bindingtextsto guide states, international organizations, NGOscan help develop international environmentallawand individuals. It could consolidate and codifyand directly or indirectly give birth to new legalmany widely accepted, but scattered, principlesrules in conventions and/or customary law.and concepts contained in non-binding textsonenvironment and sustainable development andfill7. The legal status of international environmental lawin gaps in existing law. It could also facilitate principles and concepts is varied and may beinstitutional and other linkages among existingsubject to disagreement among states. Sometreaties and their implementation, and be takeninto principles are firmly established in internationalaccount in judicial and arbitral decisions,law, while others are emerging and only inthenegotiations of new international legal instruments, process of gaining acceptance, representing moreand national law-making.recent concepts. Some principles are more inthe10. Finally, it is important to recognize thatnature of guidelines or policy directives which dointernational environmental law is aninseparablenot necessarily give rise to specific legal rights and part of public international law. Publicinternationalobligations. Principles have acquired recognition,law principles such as the duty to negotiate in goodamong other means, through state practice, their faith, the principle of good neighbourliness andincorporation in international legal instruments,notification, and the duty to settle disputestheir incorporation in national laws and regulations, peacefully, thus may pertain to a situationand through judgements of courts of lawandregardless of its designation as “environmental” andtribunals. Some principles are embodiedor may affect the evolution of internationalspecifically expressed in global or regionallyenvironmental law principles more generally.At binding instruments, while othersarethe same time, the development of international predominantly based in customary law. Inmanyenvironmental law principles and conceptsmaycases it is difficult to establish the preciseaffect the development of principles in other areas parameters or legal status of a particular principle.of international law. The application and,whereThe manner in which each principle applies toarelevant, consolidation and further development of particular activity or incident typically must bethe principles and concepts of internationalconsidered in relation to the facts andenvironmental law listed in this chapter, as well ascircumstances of each case, taking into account of of other principles of international law, will bevarious factors including its sources and textualinstrumental in pursuing the objectiveof context, its language, the particular activity at issue,sustainable development.and the particular circumstances in which itoccurs,including the actors and the geographical region,

III. Emerging Principles andConcepts

since the juridical effect of principles and conceptsmay change from one legal system to another.11. The principles and concepts discussed inthis8. For the reasons outlined in the precedingchapter are: paragraph, this chapter does not address thequestion of whether a particular principle is, in fact,

1. Sustainable Development, Integration and

binding international law. In order to avoid

Interdependence

confusion in this respect, part III, below, refers to

2. Inter-Generational and Intra-GenerationalEquity

principles and concepts jointly as “concepts”

3. Responsibility for Transboundary Harm

unless referring to a particular text, e.g. one of the

4. Transparency, Public Participation and Access to

Rio “Principles”.

Information and Remedies5. Cooperation, and Common but DifferentiatedResponsibilities6. Precaution

PRINCIPLES AND CONCEPTSChapter 3OF INTERNATIONAL ENVIRONMENTALLAWthis, by stating that “we assume a collective

7. Prevention8. “Polluter Pays Principle”

responsibility to advance and strengthen the

9. Access and Benefit Sharing regarding Natural

interdependent and mutually reinforcing pillars of

Resources

sustainable development (economic development,

10. Common Heritage and Common Concern of

social development and environmental protection)

Humankind

at the local, national, regional and global levels.”

11. Good Governance

Integration was one of the main themes discussedat the 2002 Johannesburg World Summiton

1. Sustainable Development, Integrationand

Sustainable Development, with particular

Interdependence

emphasis on eradicating poverty. One of thecommitments of Millennium DevelopmentGoal12. The international community recognizednumber 7 (“Ensure environmentalsustainability”),sustainable development as the overarchingis to “Integrate the principles of sustainable paradigm for improving quality of life in 1992, atdevelopment into country policies andUNCED. Although sustainable developmentis programmes…” Paragraph 30 of theMillenniumsusceptible to somewhat different definitions, theDeclaration speaks of the need for greater policymost commonly accepted and cited definition iscoherence and increased cooperation amongthat of the Brundtland Commissiononmultilateral institutions, such as the UnitedEnvironment and Development, which stated inits Nations, the World Bank, and the World Trade1987 Report, Our Common Future, thatOrganization. The definition of “sustainablesustainable development is “development thatdevelopment” from the BrundtlandCommission’smeets the needs of the presentwithoutreport, quoted above, indicates thecompromising the ability of future generations tointerdependence of generations, as well. On themeet their own needs.” The parameters of basis of these and other international instruments, itsustainable development are clarified in Agenda 21is clear that integration and interdependence areand the Rio Declaration, both adopted at UNCED,fundamental to sustainable development.and in subsequent international regionalandnationalinstruments.15. The concepts of integration and interdependencein international environmental law arewholly13. Principle 4 of the Rio Declaration provides: “Inconsistent with the nature of the biosphere, i.e.theorder to achieve sustainable development,concentric layers of air, water and land on whichenvironmental protection shall constitute anlife on earth depends. Scientists increasinglyintegral part of the development process andunderstand the fundamental interdependenceof cannot be considered in isolation from it.”the various elements of the biosphere,howPrinciple 25 states that “Peace, development andchanges in one aspect can affect others, and theenvironmental protection are interdependent andessential roles that nature plays with respect toindivisible.” Principles 4 and 25 make clear thathuman activities and existence (e.g., purifying policies and activities in various spheres, includingwater, pollinating plants, providing food, providingenvironmental protection, must be integrated inrecreation opportunities, and controlling erosionorder to achieve sustainable development. Theyand floods). In this respect, internationalalso make clear that the efforts to improve society,environmental law mirrors the mostfundamentalincluding those to protect the environment,infrastructure of human society (i.e., theachieve peace, and accomplish economicenvironment).development, are interdependent. Principles 4 and25 thus embody the concepts of integration and16. The concept of integration demonstrates ainterdependence.commitment to movingenvironmentalconsiderations and objectives to the core of 14. The concepts of integration and interdependenceinternational relations. For example,are stated even more clearly in paragraph 6 of theenvironmental considerations are increasingly a1995 Copenhagen Declaration on Socialfeature of international economic policy and law:Development, which introduction states thatthe Preamble to the 1994 World Trade“economic development, social development andOrganization Agreement mentions bothenvironmental protection are interdependent andsustainable development and environmentalmutually reinforcing components of sustainable protection, and there are numerous regional anddevelopment, which is the framework for our global treaties supporting an approachthatefforts to achieve a higher quality of life for allintegrates environment and economic people…”. Paragraph 5 of the 2002Johannesburgdevelopment, such as the 1992 Convention onDeclaration on Sustainable Developmentconfirms