Fundamental Principles of International Environment Law

This article describes the fundamental principles and rules within the International Environment Law, which has emerged out of various treaties, agreements and customs. The importance of this principle has often been discussed to protect and safeguard various environmental issues.

In this modern era and increasing industrialisation, there is a global responsibility on the community at large to acknowledge environmental issues and there is a dire need of establishing efficient environmental forums, to lay down directions for all nations regarding the safeguarding of the environment.

Introduction

Environment rights have emerged as a significant area of international human rights law and international environmental law. Environment rights comprise of 'substantive' rights to healthier and cleaner environment and 'procedural' rights to safeguard the environment, right to accurate information, and access to justice.[1]

International principles are distinct from rules. Principles act as a guide with reference for a particular course of action. Rules, on the other hand, can levy obligations and are binding in nature. Principles "embody legal standards, but the standards they contain are more general than commitments and do not specify particular actions, unlike rules".[2]

The legality of a specific principle depends on a number of factors such as its origin, the textual contexts, the precision in its drafting and other conditions where it has been relied, inclusive of the recurring use of legal mechanism provided internationally and reliance on international tribunals. [3]

There are numerous institutions that deal with environmental problems but still face an issue of the absence of an implementing authority. One of the leading international environmental institution, known as United Nation Environment Programmes has emerged as a cardinal authority, for setting global agendas relating to the environment. [4]

International law has foregone various changes and is very different at present from the traditional conception. It is no longer limited to states activities and confined solely to political interest but also takes other aspects into consideration such as human rights, economic rights and environmental protection. [5]

The UNEP is dedicated to fostering international cooperation in relation to environmental policies and recommendations. In addition to this, meeting the urgent needs for a permanent mechanism or an arrangement with the UN system for safeguarding the environment and to provide guidance.

The General Assembly has also directed the states to speed up the law-making procedure and adopted resolutions for few of the environmental institution such as United Nations Environment Programme (UNEP) and the Commission of Sustainable Development (CSD). [6] In recent times, with the increasing industrialisation and progress on the ecology and environment has caused a major concern globally. [7]

Sources of International Environmental Laws

Environmental concerns encompass of some core principles of international laws and have been represented in different international agreements and declarations. International Environmental laws are interdisciplinary, converges and overlaps with various other arenas of research, inclusive of economics, political science, ecology, human rights etc.

• Customary International laws and environment laws

Professor Daniel Bodansky notably mentions that- "[a]ccording to the orthodox account of customary international law, few principles of international environmental law qualify as customary."[8] "Customs" can be defined as both a law-making process and as a legally binding 'norm' at the global level or regional levels.

These Customary principles involve the concepts of the precautionary principle, sustainable development principles, intergenerational equity and common but differentiated responsibility.

The main importance of these rules and principles is that they gather legal expression and concerns of safeguarding the environment, internationally and in addition to this, it recognises the issues and comprehends the environmental protection of international river etc.[9]

There are certain conditions to determine whether a rule of international customary law exists. Firstly, state practice is in concordance with the rule of 'constant and uniform usage'; Secondly, state practice exists due to the opinion that such practice is essential by law.

Both these conditions should be met for the creation of customary international law. The fact that customary law necessitates high burden of proof, there are often conditions which are uncertain, hence treaties have become of significant importance. [10]

• International Treaties, Agreements and Conventions

There are a number of international agreements which addresses and comprises of the issues of terrestrial, marine and atmospheric pollution to safeguard the wildlife along with the biodiversity, these are legally binding in nature. These agreements can be multilateral, bilateral treaties. Protocols are an auxiliary agreement to an original treaty.

The Kyoto Protocol, which was a subsidiary of the United Nations Framework Convention on Climate Change (UNFCC) revolved around the principle of common but differentiated responsibilities. The protocol acknowledged that every single country has a different potential to combat climate change, and thereby puts the responsibility on the developed countries to lessen the current emission of greenhouses gases in the atmosphere.

Another example can be the Montreal Protocol where the signatories have prohibited the purchase of chlorofluorocarbons from non-signatories to prevent any windfall benefits, this was done to protect the ozone layer.

There are various international environment agreements, which can be bilateral or trilateral and are solely binding for countries who have ratified them. These agreements cover topics such as atmospheric policies, hazardous waste, ozone and protection of the atmosphere, substance policies, sustainable development, freshwater policies, marine environment etc.

Certain significant global treaties are the 1946 International Whaling Convention, 1971 Ramsar Convention, 1972 World Heritage Convention, 1982 United Nations Convention on the Law of the Sea, 1992 Climate Change Convention and the 1992 Biodiversity Convention.

• Judicial Decisions and International Courts

Opinions of international courts and tribunals contribute towards international environmental law. These authorities, however, have a limited control but still have a significant impact on the evolution of international environmental laws. International law is not considered as binding, however, it can still be considered as persuasive in explaining certain constitutional or statutory provisions, as per the laws present in other countries.

In the case of Andhra Pradesh Pollution Control Board-II v. Prof. M.V. Nayudu & Others (2001)[11], the court referred to the International Covenants on Civil, Political and Economic, Social and Cultural Rights, Rio Declaration and Declaration of the United Nations Water Conference although these were completely, of a persuasive nature.

However, the court considered the right of access to drinking water, an important part of the Right to Life in the Indian Constitution. The jurisprudence of the European Court of Justice, the European Court of Human Rights, in addition to this decision of courts of Philippines, Colombia was also made reference.

The judicial decisions of International Courts of Justice are considered as secondary sources for determining rule of law, consulting opinions, regardless it is still considered as acknowledgement of customary international rules. Cases relating to environmental issues may proceed from the decisions of the International Court of Justice (ICJ), the European and Inter-American Courts of Human Rights, European Court of Justice, international arbitral tribunals etc.

In addition to this, the literature of eminent jurists provides a source of materials to trace relevant laws. Commentaries of national institutes and bodies such as the International Law Commission of the United Nations and professional organizations play a key role in the development of existing environmental laws. [12]

Principles in International Environmental Laws

• Precautionary Principle

The precautionary principle can be traced back to the early 1970s, 'vorsorge' or foresight, was built on the belief that the society should cautiously plan the future and in the process avoid any environmental damage. The evolution of the concept of 'Vorsorgeprinzip' justified the implementation policies relating to global warming, acid rain etc.

On a national level, there are various countries that have used the precautionary principle to formulate environmental policies relating to public health.[13]

Principle 15 of the Rio Declaration was one of the first global codification of the precautionary approach. The principal stated that "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." [14]

The Convention on Biological Diversity formulated 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 principle in relation to the distribution of resources is that the State would have to collaborate with one another to prevent adverse effects on other States.

The UNEP guidelines mention cases where the utilization of shared resources notably affect the environment of another State sharing resources and in that case, the State should make an environmental assessment.

The development of the precautionary principle has resulted out of these guidelines, along with conducting Environment Impact Assessments (EIA). This principle authorizes that when there is a "threat of significant reduction or loss of biological diversity, lack of full scientific certainty shall not be used as a reason for postponing measures to avoid or minimize such a threat."[15]

• Polluter Pays Principle

The principle of Polluter Pays brings to light dual liability, which is compensation to the victims of pollution and ecological restoration. Liability and compensation for pollution caused have found its origin through this principle. This principle of Polluter Pays, along with Sustainable Development and Precautionary Principle has also acquired the status of customary international law. [16]

The principle was first incorporated in Principles 21 and 22 of the Stockholm Declaration, 1973. Later, the European Charter on the Environment and Health, 1989 and the Single European Act, 1986 made different provisions for the application of the principle. Principle 16 of The United Nations Conference on the Environment and Development, 1992 has envisaged this principle of "polluter pays". [17]

1992 Rio Declaration Principle 16 states that

"National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment."[18]

The "Polluter Pays Principle" necessitates the polluter to take responsibility to limit, control and clean the pollution created by the polluter and bear the expense for the pollution caused. The main purpose of this principle is cost allocation and cost internalization. The principle has gained importance in environmental policies, nationally and internationally and has been explicitly mentioned as legislations in various nations. [19]

The principle of polluter pays emerged significant by the Organization for Economic Cooperation and Development (OECD), in order to prevent national public authorities from sponsoring the pollution control costs of private firms.[20]

The council of OECD laid down recommendations that the "polluter pays principle" should be implemented to assign the cost occurring from the pollution in order to prevent and control the same. The principle simply means that the producer of the good or items should be held responsible to prevent pollution.

These costs are inclusive of direct costs or property. [21] In addition to this, this principle resulted in the introduction of policies and mechanisms for safeguarding the environment by the Governments and other institutions. [22]

In India, the polluter pays principle was not a component of law till it was invoked in the Indian Council for Enviro-Legal Action v. Union of India [23]. Here, the Court held that industries causing pollution are "absolutely liable to compensate for the harm caused by them to the villagers in the affected area, the soil and to the underground water and hence they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas."

Another case of Vellore Citizen's Welfare Forum v. Union of India[24] held that the polluter pays principle was a crucial feature of sustainable development. The Court observed that the principle of polluter pays certifies that absolute liability extends not only to compensate the victims of pollution but also restoring the cost of environmental degradation. This principle has been a part of customary international law and becomes a significant part of the law in India.

• Principle of Sustainable Development

The concept of 'Sustainability' was acknowledged during the UN Conference on Human Environment at Stockholm in 1972. However, it was legally recognised in the Brundtland Report of 1987, which explained sustainable development as development which does not hinder the ability of future generations to meet their needs.

The report focused on the meaning of sustainability and stated that it is the fusion of economics and ecology in the decision making at every level.[25]

The principle revolved on the belief that the right to development has some limitation, and cannot be exercised at the expense of the community or at the expense of the fellow states. For example, a particular state cannot exercise or use nuclear energy in the name of development and cause impairment or damage to human life or cause injury to the neighbouring regions. Hence, these developments need to made in a sustainable manner. [26]

The Rio Declaration lays down the importance of sustainability as a vital component for humans and further goes on to mention that right to development must be fulfilled as to equitably meet environmental needs of the present along with future generation and development.

One of the significant elements of the principle of sustainable development is that of intrageneration equity. It necessitates developed countries to assist the developing countries with technology and funds for environmentally development. [27]

In India, this principle of sustainable development is acknowledged in various cases. CNG litigation, M. C. Mehta v. Union of India[28], the Supreme Court was facing an issue with vehicular pollution, there was inaction on the part of the Union of India and different government authorities to phase out non-CNG buses and ensuring adequate supply of CNG. Here, the Supreme Court mentioned that one of the significant components of environmental law is the principle of sustainability.

In Vellore Citizens' Welfare Forum v. Union of India[29], it was discovered that various tanneries in Tamil Nadu discharged untreated effluents in the agricultural fields, roadsides, waterways and open lands etc. Later these untreated effluents were discharged into the river, which was the main source of water for the residents.

Here, the Supreme Court mentioned that the concept of "sustainability" was accepted as an element of customary international law, to bring about balance in ecology and development and in addition to this, the Court also held that "precautionary principle" and "polluter pay principle" are both significant features of "sustainable development."

• Principle of Preventive Action

The pollution prevention principle is different from the duty to prevent environmental harm. Under this new rule, a state is under the obligation to restrain harm/injury within its own jurisdiction. Therefore, dismissal of toxic substances in concentrations which exceed the capacity of environmental deterioration must be stopped in order to ensure that any major or irreparable damage is not inflicted upon ecosystems.

Action needs to be implemented at the early stage in order to lessen pollution rates, rather than waiting to restore these contaminated zones later. The state has constructed this principle and established authorization procedures, dedication to environmental standard ways to acquire information, applying penalties, and the need to carry out environmental impact 'assessments'.[30]

The prevention principle provides for increasing efficiency, reducing waste, and reducing liability. The government can enable certain plans and policies to educate the mass at large along with encouraging pollution prevention techniques.[31] This principle has been sustained by international instruments, restraining the introduction of pollutants along with agreements, in the field of international environmental law.

Prevention is considered as the 'Golden Rule' for the environment for both ecological and economic reasons. In some cases, it is impossible to treat environmental injury once it has occurred, for instance, extinction of fauna and flora, issues of erosions, discarding or dumping of pollutants into the rivers can create irreversible situations.

Even in situations where the damage can be cured, measures should be taken to make the risk "as small as practically possible", for a smooth transition to proceed with the intention of safeguarding the environment. Prevention is also associated with deterrence, penalties and civil liability which necessitates taking steps for greater care in behaviour, to prevent rising costs for preventing pollution. [32]

• Principle of Common but Differentiated Responsibility

"Common Differentiated Responsibility" puts forth a new dimension on a longstanding practice. The basic idea is that certain countries are required to provide more than that of the others to the provision of global public goods.

This principle has been used more strongly to repair damage caused in the global environment and has been promoted to qualify as a customary principle of international law.[33]The Common Concern principle has been considered different from the doctrine of the common heritage of mankind, which is a concept to seek to avoid allotment of property right.

The principle is related to the idea of shared but common responsibility of States which is again differentiated on the basis of varying causation of the similar concerns in the light of historical differences and differing levels of social and economic advancements.

This concept of "Common Concern of Humankind" was formulated as a treaty-based notion. In the year 1992, the United Nations Framework Convention on Climate Change (UNFCCC) stated that "change in the earth's climate and its adverse effects are a common concern of humankind". Further, the 1992 Biodiversity Convention declared that "conservation of biological diversity is a common concern of humankind."[34]

The principle of common but differentiated responsibilities has been formulated in international environmental instruments and identified but all countries are responsible for restrictive damage to global environmental areas, however, the industrialised and developed countries should take active participation and responsibility to prevent and reduce global pollution and aid developing countries to safeguard the environment.

The principle of CBDR has transitioned from being a "soft" international legal principle, in the Rio Declaration on Environment and Development to an increasingly significant element of international law from the codification in the Framework Convention on Climate Change. [35]

• Principle of Cooperation

Principle 7 of 1992 Rio Declaration mentions 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, States have common 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 technologies and financial resources they command."[36]

The principle of good neighbour puts the responsibility on the states not to injure the environment. The principle of international cooperation puts a duty on the states to restrict activities that are contrary to the rights of the other states, within the territory of a particular state. The maxim of sic utere tuo, et alienum non laedas is applied to this principle. [37]

Conclusion

It is accepted broadly that the planet faces various challenges that can be acknowledged through international cooperation. Acid rain, ozone depletion, the transmission of toxic wastes, loss of biodiversity etc., are certain issues which are being faced internationally.

It is important to address that most of these activities resulting in pollution is likely to affect the other states as well, hence various international principle gives rise to liability, in order to mitigate the future occurrence of such pollution along with managing present issues. [38] Human laws must be restricted to keep human activities in concord and maintain healthy relations with the universal laws of nature. [39]

Over the last few years, the international community has embraced a considerable number of environmental principles under the different international legal instruments relating to environmental issues. These principles have a considerable impact on environmental regulatory regimes. These principles have been derived from different sources of national and international law, it often becomes difficult to mark the parameters of these emerging principles. [40]

There are no specific principles that have been universally agreed upon. Most principles have been evolved over time, most of them have been common to the major national legal systems of the world. These treaties mirror, either the codified or general principle which have been created.

Decisions of Multilateral Environment Agreement and conferences, declarations or statements, often contribute to the evolution of international law. For example, the precautionary and polluter pays principle in the Rio Declaration of 1992. [41]

Principles of international laws have been included in different international hard law instruments along with national laws of various countries in the world. Nevertheless, regular checks need to keep in order to amend existing laws to bring about environmental justice.

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[1] SCC Online, (2010) 3 NUJS L Rev 423, Rhuks Temitop, "The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives from Nigeria and India"

[2] D. Bodansky, The United Nations Framework Convention on Climate Change: A Commentary, 18 Yale Journal of International Law, p. 501.

[3] SCC Online, (1998) 9 DULJ 43, Liaquat Ali Siddiqui, The Legal Status of the Emerging Principles of International Environmental Law

[4] SCC Online, 7 RMLNLUJ (2015) 207, H.M. Sumanth, "The Role of United Nation's Environment Programme [Unep] in International Environmental Law Making"

[5] SCC Online, 2 ELSJ 91 (2014), Nayantara Ravichandra, "Restricting Sovereignty – Transboundary Harm in International Environmental Law"

[6] SCC Online, 7 RMLNLUJ (2015) 207, H.M. Sumanth, "The Role of United Nation's Environment Programme [Unep] in International Environmental Law-Making"

[7] SCC Online, 18 JILI (1976) 153, S. Bhatt, "Law Relating to the Impact of Aviation Activities on the Environment"

[8] Bodansky, Daniel. "Customary (And Not So Customary) International Environmental Law." Indiana Journal of Global Legal Studies, vol. 3, no. 1, 1995, pp. 105–119. JSTOR, www.jstor.org/stable/20644611. Accessed 19 Aug. 2020.

[9] Natural Resource Journal, Vol 46, Owen McIntryre, "The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Freshwater Resources"

[10] Lesniewska, Feja. An Introduction to International Law. International Institute for Environment and Development, 2005, pp. 9–12, Laws for Forests: An Introductory Guide to International Forest and Forest Related Legal Materials That Shape Forest Ethics and Practice, www.jstor.org/stable/resrep18067.7. Accessed 19 Aug. 2020.

[11] 4 LRI 657

[12] United Nations Environment Programme, Dinah Shelton and Alexandre Kiss, "Judicial handbook on Environmental Law" https://www.ircwash.org/sites/default/files/Shelton-2005-Judicial.pdf

[13] EJOT, "Precautionary Principle" http://www.ejolt.org/2015/02/precautionary-principle/

[14] Convention of Biological Diversity, "Precautionary Approach", Available Here

[15] SCC Online, 2 ELSJ 91 (2014), Nayantara Ravichandra, "Restricting Sovereignty – Transboundary Harm in International Environmental Law"

[16] SCC Online, 1 RMLNLUJ (2008) 31, Gurdip Singh and Amrita, "Sustainable Development: International and National Perspective"

[17] SCC Online, 10 Stud Adv (1998) 67, Shyel Trehan and Shuva Mandal, "The Polluter Pays Principle"

[18] United Nations Environment Programme, Dinah Shelton and Alexandre Kiss, "Judicial handbook on Environmental Law" https://www.ircwash.org/sites/default/files/Shelton-2005-Judicial.pdf

[19] Hein Online, Margaret Rosso Grossman, Agriculture and the Polluter Pays Principle: An Introduction, 59 OKLA. L. REV. 1 (2006).

[20] United Nations Environment Programme, Dinah Shelton and Alexandre Kiss, "Judicial handbook on Environmental Law" https://www.ircwash.org/sites/default/files/Shelton-2005-Judicial.pdf

[21] SCC Online, 18 ALJ (2007-08) 1, Javed Talib, "The Liability and Compensation Models Incorporated in Indian Legal Regime Pertaining to Hazardous Substances-An Evaluation"

[22] SCC Online, 10 Stud Adv (1998) 67, Shyel Trehan and Shuva Mandal, "The Polluter Pays Principle"

[23] (1996) 3 SCC 212

[24] (1996) 5 SCC 647

[25] SCC Online, 1 RMLNLUJ (2008) 31, Gurdip Singh^* and Amrita, "Sustainable Development: International and National Perspective"

[26] SCC Online, 29 JILI (1987) 289, Nagendra Singh, "Right to Environment and Sustainable Development as A Principle of International Law"

[27] SCC Online, 1 RMLNLUJ (2008) 31, Gurdip Singh and Amrita, "Sustainable Development: International and National Perspective"

[28] (2002) 4 SCC 356

[29] (1996) 5 SCC 647

[30] ILSA Journal of Int'l & Comparative Law, Vol 3, Max Valverde Soto, "General Principles of International Environmental Law" Available Here

[31] United Nations Environment Programme, Dinah Shelton and Alexandre Kiss, "Judicial handbook on Environmental Law" Available Here

[32] Ibid

[33] Stone, Christopher D. "Common but Differentiated Responsibilities in International Law", The American Journal of International Law, vol. 98, no. 2, 2004, pp. 276-301. JSTOR, www.jstor.org/stable/3176729. Accessed 22 Aug. 2020.

[34] Thomas Cottier, Philipp Aerni, Baris Karapinar, Sofya Matteotti, Joëlle de Sépibus and Anirudh Shingal, "The Principle of Common Concern and Climate Change" vol. 52, no. 3, 2014, JSTOR, www.jstor.org/stable/24260946. Accessed 22 Aug. 2020.

[35] Ntale Mustapher, "Rethinking the Application of the Principle of 'Common but Differentiated Responsibilities' in the International Climate Legal Framework" (December 6, 2008). Available at SSRN: https://ssrn.com/abstract=1312282 or http://dx.doi.org/10.2139/ssrn.1312282

[36] Study prepared by the Stakeholder Forum for a Sustainable Future, "Review of Implementation of the Rio Principles" December 2011, Available Here

[37] ILSA Journal of Int'l & Comparative Law, Vol 3, Max Valverde Soto, "General Principles of International Environmental Law", Available Here

[38] SCC Online, 2 ELSJ 91 (2014), Nayantara Ravichandra, "Restricting Sovereignty – Transboundary Harm in International Environmental Law"

[39] SCC Online, 29 JILI (1987) 289, Nagendra Singh "Right to Environment and Sustainable Development as A Principle of International Law"

[40] SCC Online, (1998) 9 DULJ 43, Liaquat Ali Siddiqui, "The Legal Status of the Emerging Principles of International Environmental Law"

[41] Lesniewska, Feja. An Introduction to International Law. International Institute for Environment and Development, 2005, pp. 9–12, Laws for Forests: An Introductory Guide to International Forest and Forest Related Legal Materials That Shape Forest Ethics and Practice, www.jstor.org/stable/resrep18067.7. Accessed 19 Aug. 2020.

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1. Environmental Laws – Notes, Case Laws And Study Material