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Environmental Law

04. General Principles of International Environmental Law

Concept of Principles in Environmental Law 
 

Principles are widely prevalent in the field of International Environmental Law. A principle provides the general orientation and direction to which the positive laws must conform, a rationale for the law, without itself constituting a binding form. Principles can:
Indicate essential characteristics of the legal institutions  Designate fundamental legal norms  Fill in the gaps of the positive law by assigning new values to existing legal rules. 

   

Principles can be foundational or technical They may appear at the constitution or other basic laws or may arise from legal construction. Principles may also be characterised as "rules of indeterminate content" because of its degree of abstraction. Even the concept of "principle" or value assigned to a specific principle may change from one legal system to another.

 Following are some general legal principles applicable in the realm of International Environmental Law:  Prevention  Precaution but Differentiated Responsibility  "Polluter Pays"  Sustainable Development  Common .

 The objective of almost all of the environmental instrument is prevention. or. Direct compensation to the victims The preventive approach requires states to exercise "due diligence". i. to act reasonably and in good faith to control environmentally harmful public or private activities under its jurisdiction or control.  . Only a few pursue exceptional methods as:    Traditional Principles of State Responsibility.e. e.Principle of Prevention / Harm Prevention Prevention is the Golden Rule of environmental protection.  It is not an absolute duty to prevent harm. dumping of toxic waste into an international lake. rather an obligation to prohibit significant harm to the environment.g.

But it has a wider scope as it seeks to prevent harm whether or not there are transboundary impacts.  The preventive principle is necessary for both economic and ecological reasons:    ecological: It may be impossible to remedy environmental injury.This approach is also linked with the notion of deterrence. the idea that disincentives like penalties and civil liability would cause actors to take greater care with a view to avoid increased costs. i. e. economical: Cost of rehabilitation may be prohibitively high.g. extinction or erosion of biodiversity.  This principle is also linked with the responsibility not to cause extra-territorial environmental damage (P. .21 of extraStockholm Declaration).e.

Use of product and process standards. emission limitation or use of Best Available Technology (BAT) Requirement of monitoring.g. notification and exchange of information Regulations for combating introduction of exogenous species into an ecosystem . e. such as:      Prior assessment of environmental harm Provision for licensing and authorisation setting conditions of operation and laying down consequences of violation of such conditions. Due to the diversity in the nature of environmental legal instruments the requirement of prevention can be translated into many different legal mechanisms.

Failure to exercise due diligence to prevent transboundary harm would result in international responsibility. Proper conduction of environmental impact assessment may serve as evidence of exercising due diligence. States ought to exercise due diligence in this regard. .   Primary obligation regarding prevention of environmental harm is prior assessment of environmentally harmful activities.

. Practical Instances of Preventive Principle are as follows:  International Tribunal for the Law of the Sea (ITLOS) in the MOX case considered the duty to exchange information regarding environmental risk is a fundamental principle in the prevention marine pollution under the UNCLOS and general international law.  Obligations to conduct environmental impact assessments are also found in the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context  1997 UN Convention on Non Navigational Uses of International Watercourses urge states to take all necessary measures to prevent introduction of alien or new species which detrimental to the watercourse ecosystem.

. inter alia:        extinction of the species of flora and fauna pollution of seas by oil.  It can be said that this principle has now become a part of the customary international law. hostile environment modification air pollution climate change modification of the ozone layer etc. The preventive approach has been endorsed in many treaties aiming to prevent. hazardous waste. radioactive waste. landland-based wastes etc.

Precaution      Precautionary principle may be considered as the most developed form of prevention. it cannot be used to prevent all claimed risks. . e. Precaution means preparing for potential. Although the precautionary principle seeks to protect against hypothetical risks. uncertain and even hypothetical threats. when there is no irrefutable proof that damage will occur.g. Precaution generally applies when the consequence of non action would be serious. It is prevention based on probabilities and contingencies. astrological prediction or psychic vision.

degradation.  Precautionary principle brings into the boundary of law the problems of irreversibility and scientific uncertainty. Where there are capabilities. the precautionary principle shall be widely applied by States according to their capabilities. lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation. . Principle 15 of the Rio Convention clearly depicts this principle as:  In order to protect the environment. threats of serious or irreversible damage.

Instances of this principle: Precautionary principle is relevantly recent. . the institutions may take protective measures without having to await the reality and seriousness of those risks to become fully apparent". Environmental Policy of EU 2000. It first appeared in a declaration adopted by a conference on the North Sea in 1987.  Rio Principle in 1992. ECJ ruling in 'Mad Cow' crisis in 1996: "Where there is uncertainty as to the existence or extent or risks to human health. European Commissions Communication to all EC states that this principle will be applied in case of risk of environmental harm.  European Community and the ECJ vastly adopted this principle       1990 Bergen Declaration 1992 Maastricht Treaty.

shall not prevent the party from taking a decision . . the international tribunals have been somewhat reluctant to apply this principle  In Gabcikovo case the ICJ didn't accept Hungary's argument that a state of necessity could arise from application of the precautionary principle... 1995 Agreement for implementation of UNCLOS provisions respecting conservation and management of fish stocks and highly migratory species.g. e.. Art 10(6) says:  "lack of scientific certainty due to insufficient relevant information and knowledge. Apart from EU legislation instances can be found in:   treaties for management of living resources.. Cartagena Biosafety Protocol to the CBD is based upon precautionary principle.  But outside EU. in order to minimize potential adverse effects".

where it held that:  The parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna. art 5(7) of the Sanitary and Phytosanitary (SPS) Agreement allows members to adopt and maintain provisional measures. the ITLOS viewed the principle more favorably. .  The WTO dispute settlement panel has agreed that in cases where it is not possible to conduct a proper risk assessment. In Southern Bluefin Tuna case (1999).

the legal status of the precautionary principle is evolving.  Still the support is increasing and the opposition is diminishing.  Although a strong argument of its being part of customary international law can be made on the basis of:     Principle 15 of the Rio Declaration Recognition by various other conventions It being given the customary status withing the EU. But it is nevertheless true that the international courts and tribunals have not explicitly recognised it as a principle of customary international law.On the whole.  .

states have common but differentiated responsibility. . also.7) states thusthus   The climate change convention of 1992 depicts the principle in similar language. applying. interpretation and development In view of the different contributions to global environmental degradation.Common but Differentiated Responsibility  This principle has developed fromfrom  the application of equity in general international law recognition that special needs of developing countries must be taken into account in international environmental law making.  In this respect the Rio Declaration (P. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

 Second. need to take account of differing circumstances. particularly states respective contribution in creation of the environmental problem and abilities to mitigate those.   There are at least two consequence of this principleprincipleIt entitles or requires all concerned state to participate in international responses to environmental problems  It imposes differing obligations on states in respect of environmental standards  . This principle has two elementselementsFirst. common responsibility of the states for environmental protection.

or a shared natural resource. Common responsibility would likely to be applied where the resource in not the property of.    Common Responsibility First part of this principle It refers to the shared obligation of two or more states towards protection of a particular environmental resource. or subject to common legal interest. or under the exclusive jurisdiction of a single state. Natural resources can belong to one state. .

 Instances:      Outer space and the moon are 'province of all mankind' [1967 Outer Space Treaty. Art. Preamble] Resources of seabed. CBD. Preamble] 'Change in Earth's climate and its adverse effects are a common concern of humankind' [1992 UNFCCC. 1] Natural and cultural heritage is 'part of the world heritage of mankind as a whole' [1972 World Heritage Convention. Preamble] 'Biological diversity is a common concern for humankind' [1992. Preamble] . ocean floor and subsoil are 'the common heritage of mankind' [1982 UNCLOS.

Hence. Though the exact nature and consequence of each formulation is not clear but it can be held that states need to share certain common legal responsibility under them. Such legal responsibility will be prevent damage.    Such attribute of common responsibility appears when the state share common consequences. . But the extent of the responsibility will differ in respect of the subject matter and the role and contribution of the state in that regard. differentiated responsibility.

It translates into differentiated environmental standards of countries on the basis of a number of factors. such as: special needs and circumstances future economic development of the developing countries  historic contribution to causing an environmental problem   .  Differentiated Responsibility The differentiated responsibility is widely accepted in environmental treaties and state practices.

 1974 Charter of Economic Rights and Duties of States state more clearly that 'The environmental policies of all states should enhance and not adversely affect the present and future development potential of developing countries'. 30)  In Rio Declaration also it is stated that the special situation of developing countries as (LDCs or MVCs) will be given priority. (Art. (Principles 11 and 6)  .1972 Stockholm Declaration emphasised the need to consider 'the applicability of standards which are valid for the most advanced countries but which may be in appropriate and of unwarranted social cost for the developing countries' (Principle 23).

 . the developing countries could delay with the compliance measures.  It is an established principle of customary international law.  The differentiated responsibility practically results in different legal obligations for countries. 1992 CBD. and 1997 Kyoto Protocol. technological and other assistance to the developing countries. e. Under 1992 UNFCC. Binding emission reduction regulation is imposed only on the developed (OECD) countries. The Common but Differentiated Responsibilities principle has also given rise to a range of institutional mechanism for providing financial. for instanceinstance   Under 1987 Montreal Protocol.g. 1992 UNFCCC or 1985 Vienna Convention.The special needs of the developing countries are expressly recognised in many binding treaties.

tax etc.Polluter Pays       It is an economic principle Its objective is 'internalisation of the externalities'. This is done by use of appropriate economic tools. Every economic activity produces some positive or negative effects on the environment which are termed as positive or negative externalities.e. i. . e.e. If the negative externalities are not reflected in the price of the product (i.g. Internalization requires that all the environmental costs be borne by te producers/consumers instead of the community. internalized) then the producers and consumers become free riders of the environment at the cost and suffering of the community as a whole. to impose the cost of environmental harm on the party responsible.

taking into account the approach that the polluter should. which states thatthat  National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments.  A somewhat abstract reflection of the principle can be found in Principle 16 of the Rio Declaration. bear the cost of pollution.  It seeks to encourage rational use of scarce environmental resources and avoid distortions in international trade and investment. in principle. with regard to the public interest and without distorting international trade and investment .It was set out by the OECD as the most effective method of pollution prevention and control by public authorities.

g.  Prior to UNCED. 130R(2)). e. 1986 Single European Act or 1992 Maastricht Treat (Art. There are also few examples of the principle on global levellevel1990 International Convention on Oil Pollution Preparedness. Response and Cooperation states in the preamble that this is a general principle of environmental law. the polluter pays principle was used in different EC documents.  2001 Stockholm Convention on Persistent Organic Pollutants (POPs) also adopts this principle  .

 For application of the principle it is necessary to have an efficient economic administration or a region which is subject to uniform environmental law.  But in other countries. the principle is still in an evolving position.  That is why this principle is widely used in OECD countries as well as in EU region. .

The concept owes its genesis to the 1987 Report of the World Commission on Environment and Development (Brundtland Report) where it was described asas "Development that meets the needs of the present without compromising the ability of future generations to meet their own needs". the term 'sustainable development' has become a buzzword in the field of environmental protection. It stands on a cross platform.Sustainable Development    Since the 1980s. .

and merging environment and economics in decision making. food. ensuring a sustainable level of population. . conserving and enhancing the resource base. The Brundtland Report identified the critical objectives of sustainable development asas      reviving growth but changing its quality meeting essential needs for jobs. water and sanitation. energy. reorienting technology and managing risk.

conservation of biological diversity. social and cultural conditions. Principle 4 of the Rio Declaration states thatthat "in order to achieve sustainable development. Building on this the IUCN Draft Convention on Environment and Development also insists on integration of environment and development. general improvement of economic. life . and the maintenance of essential ecological processes and life-support systems.  Development policies should aim at eradication of poverty. environmental protection shall constitute and integral part of the development process and cannot be considered in isolation from it".

economic instruments and establish and strengthen institutional structures and procedures to fully integrate environmental and developmental issues in all spheres of decision making.  Transparency and public participation are necessary too. cost-benefit analysis and natural resources costaccounting.  . Also necessary are long-term strategies including use of longenvironmental and social impact assessment. where appropriate. States should   conduct regular national reviews of environmental and developmental policies and plans enact effective laws and regulations which use. risk analysis.

 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development adopted seven principles as comprised within the concept. The 2002 WSSD focused on this concept with particular emphasis on eradication of poverty. which are as followsfollows- .

economic an environmental objectives .       The duty of the states to ensure sustainable use of natural resources The principle of equity and eradication of poverty The principle of common but differentiated responsibilities The principle of precautionary approach to human health. in particular in relation to human rights and social. natural resources and ecosystems The principle of public participation and access to information and justice The principle of good governance The principle of integration and interrelationship.

The principle of sustainable development can now be deemed as a part of customary international law. .