GENERAL PRINCIPLES AND RULES

PRINCIPLE 21
➢ Two fundamental objectives
o States have sovereign rights over their natural resources
o Must not cause damage to environment.
o “sovereign right to exploit their own resources pursuant to their own environmental
policies and responsibility to ensure that activities within their jurisdiction do not cause
damage to the environment.”
➢ Cornerstone of international environmental law.
➢ Confirms that the right of states over their natural resources are NOT UNLIMITED and subject to
the constraints of environmental character.
➢ Specific application will depend on facts and circumstances of each case/situation.

Sovereign rights over natural resources:

➢ International legal right; customary international law.
➢ Allow states within limits established by international law to conduct/authorize activities as
they choose within their territories (First part of Principle 21)
➢ Need to balance rights of sovereign state over its resources with desire of foreign companies to
ensure legal certainty in stability of investment.
o LIMITS
▪ “In accordance with its own particular situation and in full enjoyment of national
sovereignty its own national policies on the human environment.”

SOVEREIGNTY AND EXTRATERRITORIALITY

➢ Right to be free from external interference over their exploitation.
➢ In absence of generally accepted international standards, states with strict national
environmental standards may seek to extend their application to activities carried out in areas
beyond their territory, particularly where the6 believe that such activities cause significant
environmental damage to shared resources or affect vital economic interests.
o For high-seas, difficult if not impossible so it is unlikely that principle of territorial
sovereignty can provide assistance in allocation of rights.
➢ It remains an open question in international law.
➢ But the right of state to exercise jurisdiction, either by legislation/adjudication, over activities
in other states/areas beyond national jurisdiction can be justified by the following:
o NATIONALITY PRINCIPLE: Corporations carrying on activities abroad may be subject to
the laws of their state of registration/incorporation.
▪ In case of conflict, home state should not require compliance with its laws at the
expense of the of its duty to respect territorial sovereignty of host state.
▪ Court will try to balance public policy of home state and interests of host state
plus damage to international comity and taking into consideration the reference
to the environment which is being affected/damaged.
• If damage was to home state/areas beyond national jurisdiction:
home state will have stronger basis.
o EFFECTS DOCTRINE: activities carried out in one state have or are likely to have effect in
another state
▪ Still a matter of controversy. Doubtful consistency with international law.

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Responsibility not to cause environmental damage
➢ Subject to environmental limits in exercise of right of sovereignty
➢ OBLIGATION BY ALL STATES, without prejudice to case-to case basis
➢ Principle of good neighborliness
o Art. 74 of UN Charter: “UN members policy in metropolitan areas must be based on the
general principles of good neighborliness and must take account of the interests and
well-being of the rest of the world, in social, economic and commercial matters.”
o In Lax Lanoux arbitrartion: State has obligation not to exercise its rights to the extent
of ignoring the rights of others.
o Art 30 of Charter of Economic Rights and Duties of States: “All states have responsibility
to ensure activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction.”
o Art 194 of UNCLOS: “as to not cause damage by pollution…”
o ICJ: General obligation of States to ensure… respect the environment of other States.”

PRINCIPLE OF PREVENTIVE ACTION

➢ Obligation requiring the prevention of damage to the environment and otherwise to reduce,
limit, control activities which might cause or risk such damage.
➢ Also called as preventive principle.
➢ Requires action to be taken at early stage, and if possible before damage has occurred.
➢ Prohibits activity which may or causes damage to environment in violation of standards
established in international law.
➢ Overriding importance in every effective environmental policy.
o No longer a question of repairing damages but instead preventing damage.
o May take into number of forms- penalties and liabilities
➢ Principle 11 of RIO declaration: “states must enact effective environmental legislation.”

Preventive action Principle 21

Seeks to minimize environmental Arises from application with respect
damages as an objective itself for principle of sovereignty

State may be under an obligation to Confirms that the right of states over their
prevent damage within its own natural resources are NOT UNLIMITED
jurisdiction, including appropriate and subject to the constraints of
regulatory, admin measures. environmental character.

PRINCIPLE OF COOPERATION/GOOD NEIGHBORLINESS

➢ Sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure
that of another) stands for the proposition that one State’s sovereign right to use its territory is
circumscribed by an obligation not to cause injury to, or within, another State’s territory.
➢ Reflected in many treaties and supported by state practices especially in relation to hazardous
activities and emergencies.

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 ➢ Principle 27 of RIO Declaration: “States and people must cooperate in good faith and in spirit of
partnership to fulfill the principles in this declaration and in further development of
international law in field of sustainable development.”
➢ It is affirmed in virtually all international environmental agreements of bilateral and regional
application.
➢ Need to establish common regimes.
➢ Includes specific commitment to ensure information sharing and participation in decision-
making.
o Rules on environment impact assessment
o Ensuring that neighboring states receive necessary info
o Emergency info
o Transboundary enforcement of envi standards.

PRINCIPLE OF SUSTAINABLE DEVELOPMENT

➢ States should ensure development and use of natural resources in a manner that is sustainable.
➢ Needs to be taken in context of its historic evolution reflecting a range of procedural and
substantive commitments and obligations.
➢ 1987 Brutland Report: “Development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs.”
o Needs: essential needs of the world’s poor which overriding priority should be given
o Limitations: by state of technology and social organization on environment’s ability to
meet present and future needs
➢ Four elements as reflected in international agreements (closely related, used interchangeably)
o Principle of intergenerational equity: Need to preserve natural resources for benefit of
future generations
o Principle of sustainable use: Exploiting natural resources in manner which is sustainable
or prudent or rational or wise or appropriate
o Principle of equitable use/intragenerational equity: equitable use of natural resources
which implies that use of one state must take account needs of other states
o Principle of integration: Need to ensure environmental considerations are integrated
into economic and other development plans, programs and projects and that
development needs are taken into account in applying environmental objectives.
o Note: Additional in conclusion: need to interpret and apply rules of international law in
an integrated and systemic manner.
➢ ICJ: Term has a legal function and procedural/temporal aspect AND substantive aspect (p.255)

Future generations (Intergenerational equity)

➢ Members of the present generation hold the environment for future generations.
➢ Preservation of wild flora and fauna, marine environment, essential renewable natural
resources, environment generally, natural heritage, natural resources, water resources, etc.
➢ “Environment represents living space, quality of life and very health of human beings
INCLUDING generations unborn.”
➢ Rights of future generations might be used to enhance legal standing of members of present
generations to bring claims. (Note: Intergenerational Responsibility in Oposa v Factoran)

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Sustainable use of natural resources
➢ Adoption of standards governing the rate of use/exploitation of specific natural resources.
o Marine resources (moratorium on whale etc p,258)
o Non marine resources
➢ Utilization of all natural resources must aim at satisfying the needs of man according to carrying
capacity of the environment.
➢ Legal experts Group of World Commission on Environment and Development: “Management
of human use of a natural resources or the environment in such a manner that it may yield the
greatest sustainable benefit to present generations while maintaining its potential to meet the
needs and aspirations of future generations.”
o Rational utilization: Migratory birds, fisheries, salmons, all natural resources, seals,
hydro resources
o Proper utilization: Fisheries and forests.
o Wise use: flora and fauna, wetlands, natural resources generally.
o Other terms: judicious exploitation, sound environmental management, appropriate
environmental management., ecologically sound and rational use of natural resources.
▪ Significant of terms: limits placed by international laws on the rate of
use/manner of exploitation

Equitable use of natural resources

➢ In absence of detailed rules, equity can provide a convenient flexible means of leaving the
extent of rights and obligations to be decided at a subsequent date.
➢ Reflected in UNCED: Future responsibilities based on different levels of economic development
and contributions in different degrees to particular problems.
➢ Principle 3 of RIO: right of development as a means of equitably meeting the developmental and
environmental needs of future generations.

Integration of environment and development

➢ The most important snd most legalistic element
➢ Commitment to integrate environmental considerations into economic and other development
and to take into account the needs of economic and other social development in crafting,
applying and interpreting environmental obligations.
➢ Application requires collection and dissemination of environmental information and conduct of
environmental impact assessments.
➢ However there has been a divergence in approach, which is a constitutional problem.
➢ Principle 4, RIO will pave way for an increase feature of environmental considerations on
international economic policy and law.

PRECAUTIONARY PRINCIPLE
➢ AT MOST, states agree to act carefully and with foresight when taking decisions which
concern activities that may have an adverse impact on environment.
➢ Aims to provide guidance in the development and application of international
environmental law where there is scientific uncertainty.
o PROPONENTS: Basis for early international legal action for highly threatening
environmental issues (ozone depletion and climate change)
o OPPONENTS: Over-regulation and limiting human activity.
➢ Began to appear only in mid 80s.
➢ CORE OF PRINCIPLE: Principle 15 of RIO Declaration

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 o “Where there are threats of irreversible damage, lack of scientific certainty shall
not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.”
o Should be applied by states according to their capabilities.
o Threat must be serious or irreversible. (But many treaties/agreements adopted
lower standard, for reference:. 270-272)
➢ Traditional environmental agreements only relied on presence of scientific data.
➢ Precautionary measure can be justified on economic grounds
o 1984 Ministerial Declaration of the International Conference on the Protection of the
North Sea: damage to marine environment can be irreversible or remediable only at
considerable expense and over a long period.
➢ IMPORTANCE OF ANTICIPATION: Need for effective environmental measures to be based
upon actions with longer-term approach.
➢ BURDEN OF PROOF
o Traditional: Person opposing activity
o New: Person who wishes to carry out the activity to show that it will not adversely
affect environment.

POLLUTER-PAYS PRINCIPLE
➢ Costs of pollution should be borne by person responsible for causing pollution.
➢ Application is open to interpretation on a case-to-case basis particularly to the nature and
costs included and exceptions which the principle would not apply.
➢ Practical implication: Allocation of economic obligations in relation to environmentally
damaging activities particularly in relation to liability, use of economic instruments and rules
relating to competence and subsidy.
➢ Still doubtful if it achieved status of generally applicable rule of customary international law.
o For some states: It should be applicable at domestic level but not to
relations/responsibilities at international level.

OECD
➢ First international instrument to refer expressly to this principle. (p.281)
➢ Polluter should bear expenses of carrying out the measures deemed necessary by public
authorities to protect the environment
➢ Recommendation also provided guidance on reasonable measures based on circumstances,
nature and extent, threats and hazards, laws and regulations in force etc. (p.282)

European Community
➢ EC Law: “Natural or legal persons governed by public/private law who are responsible for
pollution must pay costs of such measures as are necessary to eliminate that pollution or to
reduce it as to comply with standards or equivalent measures laid down by public authorities.”
➢ EC Council recommendation: not legally binding (p.283) identified standards and charges as the
major instruments of actions available to the public authorities for avoidance of pollution, allow
certain exceptions and says which acts will not be considered to be contrary to principle.”

SOME CONCERNS
1. Extent of costs- while it is clear that it will include costs of measures required by public officials,
will the costs of decontamination, clean-up and reinstatement be included?

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 •State practice does not support the view that all costs should be borne by polluter
particularly in inter-state relations.
2. Exceptions to the principle
• Particularly in relation to subsidies
• Role of WTO in determining impact on subsidies, consideration to the practice of
European Council etc,

PRINCIPLE OF COMMON BUT SHARED RESPONSIBILITY

➢ Based on application of equity and special needs of developing countries that must be taken
into account in development, application and rules of international environmental law.
➢ Principle 7 of RIO:
o “States shall cooperate in a spirit of global partnership to conserve, protect and restore
the health and integrity of the Earth's ecosystem. In view of the different contributions
to global environmental degradation, States have common but differentiated
responsibilities.”
Two elements
➢ Common responsibility
o Common responsibility in the protection of environment taking into account its relevant
characteristics and nature, physical locations and historic usage associated with it at
national, regional, global level.
o Natural resources can be ‘property if single state’ or ‘shared resources’
o Will likely to apply where resource is not the property or under the exclusive
jurisdiction, of a single state
▪ Examples: Tuna and other fish, outer space and the moon, waterfowl, natural
and cultural heritage, conservation of wild animals, seabed, ocean floor and
subsoil, plant generic resources (p.286-287).
o Legal interest includes legal responsibility to prevent damage to it.
➢ Differentiated responsibility
o Need to take into account differing circumstances particularly in relation to
contribution to the creation of the environmental problem and its ability to prevent,
reduce, control the threat.
o Other factors: special needs and circumstances, future economic development of
developing countries, historic contributions etc.
▪ 1972 Stockholm: Social costs
▪ 1974 Charter of Economic Rights: present and future of developing countries
▪ RIO: capacities and needs of developing countries
▪ London Convention: scientific, technical and economic capabilities
o Different responsibilities result to different legal obligations
▪ Different techniques to address: grace periods in delaying implementations and
less stringent commitments
▪ Example: Montreal Protocol (delay in certain circumstances), Climate Change
convention (specific commitments only for developed countries), Kyoto Protocol
(range of diff targets depending on contributions and capacities).
• Establishment of Special institutional mechanisms to provide technical,
financial and other assistance to developing countries.

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TWO CONSEQUENCES OF THIS PRINCIPLE
❖ It entitles or may require all concerned states to participate in international response measures
aimed at addressing environmental problems
❖ Leads to economic standards which impose differing obligations on states

CONCLUSION
➢ Legal status, meaning and consequences depend on case-to-case basis primarily because they
• Emerged over a relatively short period of time
• Emerged in context of sharp differences of view as to what they mean in practice and
what they should mean
• Extent to which state practice interprets and applies these rules and principles is still
evolving and requires further consideration by reference to what states do in both
national and international level..
➢ Principles and rules of general application provide a framework to shape the future
development of international environmental law particularly
• Principle of sustainable development
• Precautionary principle.

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