JEN3740 Principles of IEL

7/27/2019 JEN3740 Principles of IEL

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International Environmental

Principles


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General Principles of International

Environmental Law

These principles and concepts embody a

common ground in environmental law and

reflect the past growth of IEL & affect its

future evolution.

They indicate the essential characteristics of

it, its institutions; provide guidance in

interpreting legal norms; constitute

fundamental norms and fill in gaps in positivelaw & also influence national jurisprudence

as they appear in national constitutions and

laws.


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The development of international law duringthe past years has led to the emergence of

these principles.

Their major role is linked to the origin and

development of IEL as ad hoc responses toenvironmental threats and challenges.

The legal status of the principles is varied

and may be subject to disagreement among

states. Although generally applicable to all

states as members of the international

community, there is no judicial authority on

their binding effect will depend on the facts

of each particular case.3


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Some principles are firmly established in

international environmental law; while

Others are emerging & in the process of

gaining acceptance through state practice;

their incorporation in national laws andregulations; through judgments of courts of

law and tribunals; as well as in soft law

commitments.

However, in general terms these principlesare reflected in treaties, binding acts of

international organizations, state practice

and soft law commitments.

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1. Sovereignty of States Over Natural Resources &

the Responsibility not to Cause Environmental

Damage Principle 21 of the Stockholm Conference & 2

of the Rio Conference.

States have:

the sovereign right to exploit their ownresources pursuant to their own

environmental policies; and

the responsibility to ensure that activities

within their jurisdiction and control do not

cause damage to the environment of other

states or of areas beyond the limits of

national jurisdiction.


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Principle 21 has been declared as a reflectionof international customary law by the ICJ`s

Advisory Opinion on the Legality of the

Threat or Use of Nuclear Weapons.

The principle of state sovereignty allows

states within limits established by

international law to conduct such activities

as they choose within their territories,

including activities which may have adverse

effects on their own environments, But withan obligation to protect their environment &

prevent damage in other territories.

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It affirms the duty of states to ensure that

activities within their jurisdiction or control do notcause damage to the environment of other states

or areas outside the limits of their jurisdiction,

such as the high seas, airspace above them, the

deep seabed, outer space, celestial bodies and

Antarctica.

It is generally said that the exact scope and

implications of this principle are not clearly

determined.

It however includes the right to be free from

external interference over their exploitation.


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Therefore, not all instances of transboundary

damage resulting from activities within a

state`s territory can be prevented or are

unlawful, though compensation may

nevertheless be called for.

In 1983, the arbitral tribunal in the Fur Seals

Arbi t rat ion rejected a claim by US to be

entitled to protect fur seals in areas beyond

the three mile limit of the territorial sea and

the right to interfere in the internal affairs ofother states to secure the enjoyment of their

share in the common property of mankind.8


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See also the Trai l Smelter case& the Corfu

Chanel case (UK v Albania)regarding the

principle of good neighbourliness.

The principle of sovereignty embodies the

obligation of every state not to allow its

territory to be used for acts contrary to the

rights of other states. The rights of other

states can therefore not be ignored.

The rule as such may provide a legal basis

for bringing claims under customary lawasserting liability for environmental damage.

Application of the rule depends on the facts

of the case.

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2. Principle of Preventive Action

It encompasses the obligation requiring the

prevention of damage to the environment and

otherwise to reduce, limit or control activities whichmight cause or risk such damage.

It seeks to minimize environmental damage as an

objective itself & a state may be under an obligation

to prevent damage to the environment within its ownjurisdiction by means of appropriate regulatory and

administrative measures.

It requires action to be taken at an early stage and if

possible, before damage has actually occurred,because it is frequently impossible to remedy

environmental injury, the reason why it is referred to

as a GoldenRule for the environment.


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It prohibits activity which causes or likely to

cause damage to the environment in violation

of the standards established in International

law.

it is supported by an extensive body of

domestic environmental protectionlegislation which establishes authorization

procedures as well as the adoption of

international and national commitments on

environmental standards, access toenvironmental information & the need to

carry out environmental impact assessments

on relation to the conduct of proposed

activities.11


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The preventive approach has been endorsed

directly or indirectly by the 1972 Stockholm

declaration in principle 6, 7, 15, 18 and 24 and

the 1978 UNEP Draft principles in Principle 1.

This principle was supported in the pleadingsof Australia in the Nuclear Test caseand in

the claim by Nauru that Australia had

breached its legal obligation to administer

the territory of Nauru in such a way as not tobring about changes in the territory which

would cause irreparable damage to, or

substantially prejudice.

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3. Principle of Good Neighbourliness

& International Co-operation

The concept of good neighbourliness

enunciated in Article 74 of the UN Charter in

relation to social, economic and commercial

matters has been translated into the

development and application of rulespromoting international environmental co-

operation.

The principle is reflected in many treaties,

state practice particularly in relation tohazardous activities and emergencies.

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Principle 24 of the Stockholm Declaration

reflects a general political commitment to

international co-operation in matters

concerning the protection of the

environment. Principle 27 of the Rio Declaration provides

that states and people shall co-operate in

good faith and in a spirit of partnership in the

fulfillment of the conservation, protection andrestoration of the health and integrity of the

Earth`s ecosystem.

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The obligation to co-operate underscores the

ICJ`s reminder of the need to establish

suitable common regimes.

It ensures information sharing and

participation in decision-making, negotiationin good faith to prevent disputes, to provide

timely notification of plans to carry out or

permit activities which may entail

transboundary interference or a significantrisk thereof and to engage in good faith

consultations to arrive at an equitable

resolution of the situation.

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4. Principle of Sustainable

Development

The international community recognized that

the development and use of the natural

resources in a manner which is sustainable is

an overarching paradigm for improving

quality of life in 1992 at the United Nations

Conference on Environment andDevelopment.

The term sustainable development was

coined by the 1987 Brundtland Report which

defined it as development that meets theneeds of the present without compromising

the ability of future generations to meet their

own needs.

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State practice suggest that the idea of

sustainability has been a feature in

international legal relations since 1983 when

US asserted a right to ensure the legitimate

and proper use of seals and to protect themfor the benefit of mankind from Wanton

destruction.

Since then many treaties and other

international instruments as well asdecisions of the international of the

international courts have supported the 2

concepts, both directly and indirectly.

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Elements that appear to comprise the

concept of sustainable development as

reflected in international agreements.

The principle of intergenerational equity

The principle of sustainable use

The principle of equitable use, or intra-

generational equity

The principle of integration.

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The concept of sustainable development has

entered the corpus of international law,

requiring different streams of international

law to be treated in an integrated manner.

See Gabcikovo-Nagymaros Case, where the

ICJ invoked the concept in relation to the

future regime to be established by parties.

According to Principle 1 of the 1972

Stockholm Declaration, man bears a solemn

responsibility to protect and improve the

environment for present and future

generations.20


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The ICJ in its Advisory Opinion on TheLegality of the Threat and Use of Nuclear

Weapons recognized that the environment is

not an abstraction but represents the living

space, the quality of life and the very health

of human beings including generationsunborn. This shows the idea that as members

of the present generation; we hold the earth

in trust for future generations.

Accordingly, the rights of future generationsmight be used to enhance the legal standing

of members of the present generation to

bring claims.21


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Viewed as a whole, the concept of sustainabledevelopment is primarily but not exclusively:

the recognition of the need to take into

consideration the needs of present and future

generations;

the acceptance on environmental protection

grounds of limits placed upon the use and

exploitation of natural resources;

the role of equitable principles in the allocation of

rights and obligations;

the need to integrate all aspects of environment

and development and the need to interpret and

apply rules of international law in an integrate and

systematic manner.

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5. Precautionary Principle

This principle aims at providing guidance in

the development and application of

international environmental law where there

is scientific uncertainty.

There is still disagreement as to its meaning

& effect. Some consider that it provides forearly international legal action to address

highly threatening environmental issues such

as ozone depletion and climate change.

On the other hand, its opponents havedecried the potential the principle has for

over-regulation and limiting human activity.

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The standards adopted under this principle

suggest that action shall only be taken where

there is scientific evidence that significantenvironmental damage is occurring.

This requires the party wishing to adopt

measures to prove a case for action based

upon the existence of sufficient evidencewhich may be difficult to obtain.

Principle 15 of the Rio Declaration provides

that in order to protect the environment, the

precautionary approach shall be widelyapplied by states according to their

capabilities where there are threats of

serious or irreversible damage.

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The ninth preambular paragraph of the 1992Convention on Biological Diversity contains

words to the same effect although in less

restrictive words by using significant

reduction or loss of biodiversity. Parties must take measures to anticipate,

prevent or minimize the adverse effects to

the environment.

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6. Polluter Pays Principle

It establishes the requirement that the costs

of pollution should be borne by the personresponsible for causing the pollution.

This means that environmental costs of

economic activities, costs of preventing

potential harm should be internalized ratherthan imposed upon society at large.

The 1972 Organization for Economic Co-

operation and Development (OECD) was the

first instrument to refer to this principle toallocate costs of pollution prevention and

control measures to encourage rational use

of environmental resources.

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It was meant to apply within a state and not

between states.

In fact pollution costs can be born either by

the community, by those who pollute or by

consumers e.g. where there is an unregulatedindustry that discharges pollutants in the

river, the possibilities are that:

The river can remain polluted and be

rendered unsuitable for certaindownstream activities, causing the

downstream community to suffer

economic loss;

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The downstream community can build anadequate water treatment plant at its own

cost;

The polluter may receive public subsidies

for controlling pollution. In all possibilities, the affected community

bears costs of pollution and of measures

designed to eliminate it or mitigate it.

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7. Principle of Common But

Differentiated Responsibility

This principle developed from the applicationof equity in general international law and the

recognition that the special needs of

developing countries must be taken into

account in the development, application andinterpretation of rules of international

environmental law.

Principle 7 of the Rio Declaration states that:

all states have common but differentiatedresponsibility.

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Common responsibility Describes the shared obligations of two or

more states towards the protection of a

particular environment resource, taking

into account its relevant characteristicsand nature, physical location and historic

usage associated with it.

Common responsibility is likely to apply

where the resource is not the property of,or under the exclusive jurisdiction of a

single state.30


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Recent state practice supports theemergence of the concept of common

concern as reflected in the 1992 Climate

Change Convention, which acknowledges

that change in Earth`s climate and itsadverse effects are a common concern of

humankind; so as Biodiversity in terms of the

1992 Convention on Biological Diversity.

Formulations differ and must be understoodand applied in the context of the

circumstances they are adopted; that is

common consequences.

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Certain legal formulations are attributable to

all states in respect of a particular, by theadoption of national environmental standards

and obligations.

Differentiated Responsibility

It translate into differentiated environmental

standards set on the basis of a range of

factors including special needs and

circumstances, future economicdevelopment of development of developing

countries and historic contributions to

causing an environmental problem.

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In the Rio Declaration, the international

community agreed that environmental

standards management objectives and

priorities should reflect the environmental

and developmental context in which they

apply and that special situation of developingcountries and the most environmentally

vulnerable shall be given less priority.

Differentiated responsibility practically

results in different legal obligations,especially in grace periods delaying

implementation and less stringent

commitments.

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Documents

JEN3740 Principles of IEL