FUNDAMENTAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
The Public International Law is derived from one of the four sources which are, international customs, international conventions, judicial decisions, general principles of law recognized by civilized nations, and teachings of highly qualified legal scholars. Well, relatively the new international environmental law is developing from less traditional and binding sources along with the above-mentioned sources. There is no international instrument of global application that outlines the rights and duties of the countries in respect to environmental matters, well nevertheless, resolutions and declarations of international agencies in charge of the environmental controls, for example, Atomic Energy Agency, states the practices and the decisions held by the international tribunals which have played an important role in the development of the rules.
Following are the fundamental principles of International Environmental Law
SOVEREIGNTY AND RESPONSIBILITY
Between two apparently contradicting principles International Environmental Law has developed, firstly, the states have sovereign rights over their natural resources, and secondly, damage should not be caused to the environment by the state. As stated in the 1992 Rio Declaration:
“States have, in accordance with the Charter of the United Nations and the principles of the international law, the sovereign right to exploit their own resources pursuant to their own environmental and development 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.”
Hence, the sovereignty is not absolute, it is subjected to a general duty which is not to cause environmental damage to the environment of the other states or areas which are beyond a state’s national jurisdiction. This has an origin from the general maxim which is, possession of rights involves the performance of corresponding obligations. The Trail Smelter case 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.”
In 1961, the principle got further developed when the United Nations General Assembly declared that, “The 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.” International treaties as well as other international practices have accepted the duty to avoid damage to the environment.
Moreover, in the case of shared resources, there is a primary obligation on the states to utilize the resources harmoniously and equitably, it is chiefly related to cooperation on the basis of a system of information and prior consultation and notification so as to achieve optimal use of the natural resources without causing harm to the legitimate interests of other states.
Areas that are beyond the limits of the national jurisdiction, for example, the high seas, the concept applicable here is not of sovereignty, but it is of the common heritage of humanity. The states must cooperate in sharing the economic benefits and conservation of such areas. Recently, the concept of the common heritage of humankind has been functional to the protection of Antarctica.
PRINCIPLES OF GOOD NEIGHBORLINESS AND INTERNATIONAL COOPERATION
The principle of good neighborliness is related to the duty to identify, corporate in investing, and avoiding environmental damage. Many international environmental treaties have provisions that require cooperation in the generation and exchange of scientific, technical, commercial information, and socioeconomic. It is not an absolute obligation but it is limited through municipal conditions, for example, the protection of patents. The principle of international cooperation puts a duty on the states to restrict the activities of the other states, within the territory of a particular state. The principle is based upon the maxim sic utere tuo, et alienum non laedas. Principle 7 of the 1992 Rio Declaration states that:
“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, but differentiated responsibilities. 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 financial resources they command.”
PRINCIPLE OF PREVENTIVE ACTION
This principle is different from the duty to prevent environmental damage, under this principle the state is under an obligation to restrain harm within its territory. The principle preventive action provides for reducing waste, reducing liability, and increasing efficiency. The states can enable certain policies and plans to create awareness in the masses along with encouraging them to use pollution prevention techniques. Prevention is considered to be the ‘Golden Rule’ for the environment in respect of both ecological and economic reasons. The principle has been sustained by international instruments, limiting the introduction of pollutants along with agreements, in the field of International Environmental Law.
In the situations wherein the damage can be cured, necessary measures should be taken to make the risk “as small as practically possible”. Prevention is also accompanying by deterrence, penalties, and civil liabilities which requires taking steps for better care in behavior, to prevent rising costs for preventing pollution.
This principle was the basis of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989, which aimed to minimize the production of hazardous waste and combat illegal dumping.
The first global codification of the precautionary approach was principle 15 of the Rio Declaration, which states:
“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats 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.”
The Convention on Biological Diversity articulated in the year 1992, states that:
“. . where there is a threat of significant reduction or loss of biological diversity, lack of full scientific uncertainty should not be used as a reason for postponing measures to avoid or minimize such a threat.”
The first treaty to embodied on this principle was the 1985 Vienna Convention for the Protection of the Ozone layer, and the precautionary approach of the environment has been addressed widely. Regrettably, there exists no precision as to the principle’s requirements, and its formulations vary. On the state level, there are many countries that have used the precautionary principle to formulate environmental policies in the context of public health. The UNEP guiding principle mentions cases where the consumption of shared resources notably affects the environment of another State sharing resources and, in that case, the State sharing resources and, in that case, the State should make an environmental assessment.
THE DUTY TO COMPENSATE FOR HARM
It’s the responsibility of the states to ensure that activities held within its jurisdiction or control do not cause harm to the environment of other states or areas beyond the limits of its national jurisdiction. Any state which is responsible for a violation of international law, the state has to stop the wrongful conduct and re-establish the condition that existed prior to the wrongful conduct, if the harm caused is not possible re-establish the condition then the state shall provide compensation. The Permanent Court of Justice declared:
“The essential principle contained in the actual notion of an illegal act . . . is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or if it is not possible, payment of a sum corresponding to the values which restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”
PRINCIPLE OF COMMON BUT DIFFERENT RESPONSIBILITY
Due to unlike development footpaths and the need to share the responsibility of ecological deprivation, some countries may be asked to carry more of the weight of conservation. The idea is that the states should obey international obligations for the conservation of the environment on the basis of equity and in accordance with their common but yet differentiated responsibilities and respective capacities. The Rio Declaration principle four and seven acknowledges this principle, two constituent elements are included in this principle, as follows:
- The common responsibility of the states to protect the environment signifies that states should participate in the global effort for conservation.
- Elucidation of the different circumstances of states, for example, the countries which are industrialized have contributed more to global warming than underdeveloped countries.
All states are bound to participate in the environmental solution, the adoption of national standards and international obligations can vary, for example, the time period for which national implementation of preventive measures can vary from state to state.
THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT
The 1987 Brundtland Report demarcated the principle of sustainable development, it defined it as progress that meets the needs of the present without compromising the ability of future generations to meet their own needs. The idea that limitations on the environment’s capacity to meet present and future needs is imposed through this principle. Sustainable development has three elements: –
- Intergenerational Equity
- Sustainable use of Natural Resources
- Integration of environment and development
“One of the significant elements of the principle of sustainable development is that of intrageneration equity. It necessitates developed countries to assist developing countries with technology and funds for environmental development.”
In M.C. Mehta v. Union of India, the issue in front of the Hon’ble Supreme Court of India was vehicle pollution, there was inaction on the part of the Union of India and various other government authorities to phase out non- CNG buses and even guaranteeing an adequate supply of CNG. The Hon’ble Supreme Court of India mentioned in the case that one of the significant elements of environmental law is the principle of sustainability.
It is acknowledged broadly that the planet faces numerous challenges that can be acknowledged through international cooperation. Ozone depletion, loss of biodiversity, the transmission of toxic wastes, etc., are issues that are being faced globally.
These principles have a considerable bearing on environmental regulatory regimes. These principles have been resulting from different sources of national and international law; it often becomes difficult to mark the parameters of these evolving principles.
The legal meaning and repercussion of the above-mentioned principles remain open. Some principles have evolved with a short span of time and sometimes in some different contexts, even the state practices are also evolving. It makes it difficult to induce the international community to protect the environment as some of the principles don’t have a definite meaning and there is no legal agreement concerning the legal consequences of these rules. However, the impact of international litigation must not be underestimated, the decisions held by the international tribunals, for example, the European Court of Justice and the International Court of Justice on environmental issues, will contribute to the codification of these principles.
Author: Mansi Sharma,
Manav Rachna University, BA.LLB (3rd Year)