Principles of International Environmental Law

Principles of International Environmental Law

Principle

A principle is a law or rule that has to be, or usually is to be followed, or can be desirably followed, or is an inevitable consequence of something, such as the laws observed in nature or the way that a system is constructed. The principles of such a system are understood by its users as the essential characteristics of the system, or reflecting system's designed purpose, and the effective operation or use of which would be impossible if any one of the principles was to be ignored.

Examples of principles are descriptive comprehensive and fundamental law, doctrine, or assumption, the normative rule or code of conduct, and the law or fact of nature underlying the working of an artificial device.

The Principles of International Environmental Law are as below

Sovereignty and Responsibility

International environmental law has developed between two apparently contradicting principles. First, states' have sovereign rights over their natural resources. Second, states should not cause damage to the environment. Although the concept of a state's sovereignty over its natural resources is rooted in the old principle of territorial sovereignty, the United Nations General Assembly has further encouraged it declaring,inter alia, that the right of peoples and nations to permanent sovereignty over their natural resources and wealth must be exercised in the interest of their national development, and of the well-being of the people of the state. This resolution reflects the right to permanent sovereignty over natural resources as an international right, and has been accepted by tribunals as a reflection of international customs.' National sovereignty over natural resources has been affirmed in international agreements.

The concept of sovereignty is not absolute, and is subject to a general duty not to cause environmental damage to the environment of other states, or to areas beyond a state's national jurisdiction. As stated in the 1992 Rio Declaration:

states have, in accordance with the Charter of the United Nations and the principles of international law,  the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction.'

This is a derivation from the general maxim that the possession of rights involves the performance of corresponding obligations.' 

The responsibility not to cause environmental damage precedes the Rio Declaration. There is an obligation of all states to protect the rights of other states, as elaborated in Trail Smelter,a case which stated that:

under principles of international law . . . no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence."° 

This principle was further developed in 1961 when the United Nations General Assembly declared that " he fundamental principles of international law impose a responsibility on all states concerning actions which might have harmful biological consequences for the existing and future generations of peoples of other states, by increasing the levels of radioactive fallout."" The duty to avoid environmental damage also has been accepted in international treaties" as well as in other international practices. 

Moreover, in the case of shared resources, this is a resource which does not fall as a whole within the jurisdiction of one state; the primary concept is the obligation for equitable and harmonious utilization of the resource."1 This obligation is primarily related to cooperation on the basis of a system of information and prior consultation and notification in order to achieve optimum use of such resources without causing damage to the legitimate interests of other states."

In those areas beyond the limits of national jurisdiction, such as the high seas, the applicable concept is not one of sovereignty, but is one of common heritage of humanity. Simply stated, global property is open and its wealth cannot be appropriated by states. 'States are only administrators of the property's wealth and benefits. 6 States must cooperate in the conservation and share the economic benefits of those areas." Recently The concept of common heritage of humankind has been applied to the protection of Antarctica.

Principle of Good Neighbourhood and International Co-operation

The principle of good neighborliness places on states a responsibility not to damage the environment. The principle of international cooperation places an obligation on states to prohibit activities within the state's territory that are contrary to the rights of other states and which could harm other states or their inhabitants. 11 This is considered to be an application of the maxim sic utere tuo, et alienum non laedas.

The principle of good neighborliness is closely related to the duty to cooperate in investigating, identifying, and avoiding environmental harm. Most international environmental treaties have provisions requiring cooperation in the generation and exchange of scientific, technical, socioeconomic, and commercial information. 2 ' This obligation to cooperate is not absolute. Instead, it is limited by municipal conditions such as the protection of patents.

The exchange of general information is critical in monitoring the domestic implementation of international obligations. For example, a cooperative exchange of information regarding the trade of endangered wildlife is critical in tracing the population flow of animals." The same occurs with greenhouse effect emissions. 2 ' Due io the importance of exchanging information, some conventions have created separate international bodies with information generating and distribution functions." Additionally, many conventions contain provisions dealing with scientific knowledge, 26 atmospheric changes, 27 marine pollution,U and cultural preservation.

Other subprinciples embodied in good neighborliness and international cooperation are the principles of prior notification and consultation. Prior notification obligates acting states to provide prior, timely notification and relevant information to every state that may be adversely affected by its environmental activities.0 Of course, states shall immediately notify other states of any natural disasters or other emergencies that are likely to produce transboundary effects.' Also, notification is particularly important when there is an oil spill,2 industrial mishap," or nuclear accident.

Moreover, upon request, the acting state is bound to enter into a good faith consultation with potentially affected states over a reasonable period of time." However, the acting state is not bound by the opinions of the consulted states, but should take them into account. Finally, when one state is acting in the territory of another, notification and consultation is not enough. Prior informed consent is required. This consent is mandatory in activities such as transporting hazardous wastes through a state,3' lending emergency assistance after an accident," and prospecting for genetic resources."

Principle of Preventive Action

The pollution prevention principle should be differentiated from the duty to avoid environmental harm. Under this new rule, a state may be under the obligation to prevent damage within its own jurisdiction." Therefore, the discharge of toxic substances in such quantities or concentrations which exceed the capacity of the environment's degradation capacity, must be halted in order to ensure that serious or irreversible.damage is not inflicted upon ecosystems.'* Action should be taken at an early stage to reduce pollution, rather than waiting to restore contaminated areas.

To ensure this principle, states have established authorization procedures, commitments to environmental standards, ways to access information, the use of penalties, and the need to carry out environmental impact 'assessments." For example, environmental impact assessments have been incorporated as a decision-making instrument by international organizations42 as well as in many conventions . 3 The preventive principle has been supported by international instruments preventing the introduction of pollutants," and also by agreements in the field of international economic law." Finally, it has also been endorsed by international case law."

 

Precautionary Principle

This rule, although still evolving, is reflected in principle fifteen of the Rio Declaration, which states that where there are warnings of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 7 Since scientific certainty often comes too late for politicians and lawyers to protect against environmental danger, the burden of proof is switched. To wait for scientific proof regarding the impact of pollutants discharged into the environment could result in irreversible damage to the environment and human suffering. Traditionally, states wishing to adopt certain protective measures had to prove beyond a doubt the hazard and the urgency of the desired action.4 8 Fortunately, because of the precautionary principle, this traditional view of burden of proof was reversed so that a state would not have to wait for proof of harm before taking action. Another possible interpretation of the shift in the burden of proof is that states wishing to undertake certain activities will have to prove that the activities will not cause harm to the environment.

The first treaty to embody this principle is the 1985 Vienna Convention for the Protection of the Ozone Layer." Subsequently, the precautionary approach for the protection of the environment has been widely addressed.- Regrettably, there exists no precision as to the principle's requirements, and its formulations vary. What remains ambiguous is the level at which the lack of scientific evidence can not be claimed as an argument to postpone measures.

When can a preventive action be legally required? While the 1991 Bamako Convention" links the preventive and precautionary principles and does not require the possibility of damage to be serious (lowering the level at which the lack of scientific evidence launches action)," the 1992 Convention for the Protection of the Marine Environment of the North- East Atlantic increases the threshold needed to implement preventive measures," requiring more than a mere possibility of damage.