September 28, 2021

Important Principles of Environmental Law

Environmental law

Principle of State Sovereignty

  • The term ‘sovereignty’ is understood as the full right and power of a governing body to govern itself without any interference from outside sources or bodies.
  • Under the regime of International Environmental Law (IEL), each and every State is a coequal sovereign, and each is the final authority within its limits.
  • Accordingly, one State may not dictate the other States as to how to regulate its activities that produce pollution or exploit natural resources in its jurisdiction. This notion is known as the Principle of State Sovereignty.
  • Principle of State Sovereignty is one of the oldest principles of international law. Principle of State Sovereignty means that the State has exclusive jurisdiction on its territory. Thus, States are free to decide how to manage their natural resources and own environment.
  • The principle of State Sovereignty under the regime of IEL aims towards providing the States carrying on activities within territories with a defensive shelter. However, this defense of exploitation of resources in one’s own territories is limited in nature. And thus, as per the Principle of State Sovereignty, States are under obligation to carry on their activities in a manner which does not cause damage to the environment of other States.
  • The Principle of State Sovereignty is set out in Principle 21 of Stockholm Declaration, 1972 which proclaims that States have in accordance with the Charter of the UN the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies.
  • Principle 2 of Rio Declaration, 1992 also uses the same notion as envisaged in Stockholm Declaration, but enlarges its scope by adding environmental and developing policies instead of just environmental policies.
  • Both the Declarations, however, confirm that the rights of States over their natural resources in the exercise of their permanent sovereignty are not unlimited and are subject to significant constraints of an environmental character. The reason behind limiting the application of this principle is because some components of the environment raise serious problem for the application of Principle of State Sovereignty, since the environment know no boundaries. Migratory species of wild animals, fish stocks crossing the limits of territorial sea, pollution of air and river are not topped by the limits of territorial jurisdiction. Such situation leads to conflicts between sovereign rights, which can only be solved by International law.  The second part of both Principle 21 and Principle 2 confirms this right by enforcing upon other states the responsibility to ensure that the activities within their jurisdiction do not cause damage to the environment of other States. (Principle of Good Neighborliness).

Principle of Good Neighborliness

  • The responsibility not to cause damage to the environment of other States or of areas beyond national jurisdiction has been accepted as an obligation by all States. This notion has been incorporated as one of the fundamental principles of international law as the Principle of Good Neighborliness. It rests on the maxim of sic utere tuo ut alienum non laedas.  
  • Thus, the Principle of Good Neighborliness embodies the obligation of every State not to allow the use of its territory for acts contrary to the rights of another States.
  • This obligation was subsequently relied upon and elaborated by the Arbitral Tribunal in the much-cited Trail Smelter case which states that: “under the 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 property or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.
  • Similarly, if we look at the Lake Lanoux case, the French Government acting under good faith informed the Spanish Government about the proposed project and further promised the Spanish Government to return the volume of diverted water. This shows the level of care taken by the French Government to ensure the welfare of both States.
  • Article 3 of Convention of Biological diversity also incorporates this Principle of Good Neighborliness.

Principle of Common Heritage of Mankind

  • The Principle of common heritage of mankind is an ethical concept. It establishes that some localities [for instance, seabed, forests, air, outer space] belongs to all humanity and that their resources are available for everyone’s use and benefit, taking into account future generations and the needs of developing countries.
  • The concept of common heritage of mankind was first mentioned in the Preamble to the 1954- Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and specifically enunciated as an obligation in the Outer Space Treaty of 1967.
  • Common heritage of mankind, however, gained importance only after the United Nations Convention on the Law of Sea, 1982 (UNCLOS- IV).
  • Some of the core elements of common heritage of mankind are:
    • No person or State can own Common Heritage Spaces or resources (the Principle or non- Appropriation) they can be used but mot owned as they belong to all humankind.
    • The use of common heritage shall be carried out in accordance with a system of co-operative management for the benefit of all mankind. There shall be active and equal sharing of benefits derived from these resources.
    • Some benefits of common heritage of mankind shall be saved and transmitted to future generations in unimpaired conditions.
  • The concept of common heritage of mankind is based on concepts of res nullius (a thing which cannot be owned by anyone) and res communis (the thing which belongs to the whole mankind).
  • The Principle of common heritage of mankind does not stand free of controversies. Accordingly, it challenges some traditional international law concepts of such as acquisition of territory, sovereignty, allocation of planetary resources etc.

Principle of Co-operation and Integration

  • In the field of environmental protection, international cooperation is necessary to conserve the environment in its totality. Much of the IEL relates to the general obligations of States to so-operate in investigating, identifying and avoiding environmental harms.
  • Principle 24 of the Stockholm declaration proclaims that “international matters concerning the protection and improvement of environment should be handled in a co-operative spirit by all countries, big and small, on an equal footing. Cooperation through multilateral or bilateral arrangement or other appropriate means is essential to take effective control, prevent, reduce and eliminate adverse environmental effects resulting from activities conducted in all spheres; in such a way that due account is taken of sovereignty and interest of all States.
  • Principle 7 of Rio Declaration, 1992 declares that “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the earth’s ecosystem.” The Rio Declaration also insists on cooperation to strengthen endogenous capacity building for SD by improving scientific understanding by exchange of knowledge and enhancing the development, diffusion and transfer of technologies.
  • Article 20(2) of CBD provides that the developed countries shall provide new and additional financial resources to enable the developing countries to meet the full incremental costs to them of implementing measures which fulfill the obligation of the Convention.
  • Within the obligation to co-operate are more specific duties of exchange of information, need to notify and consult with potentially affected States and the requirement to co-ordinate in international scientific research.
  • The exchange of information continues to be a critical aspect of environmental protection in the future. Countries are under obligation to report on a broad range of activities including efforts to curb down wildlife trade, reduce GHG emissions, reduce levels of ozone depleting substances and conserve biodiversity.
  • Similarly, the Principle of Prior Notification obliges any State- planning on a potentially damaging activity to provide to potentially affected States all the necessary information in time for the latter to prevent damage to its territory and, if necessary enter into consultation with the acting States. Thus, it requires the State to allow the potentially affected parties and opportunity to review & discuss a planned activity that may cause damage. For instance- in Lake Lanoux case, the French Government did everything in their power to implement the proposed project as well not let the project affect the interests of Spanish citizens.
  • Similarly, yet another aspect of international co-operation is seen in the obligation to notify the affected States in case of emergency that has trans-boundary effects. For instance, 2015 Nepal’s earthquake, 2004 Tsunami.

Common but Differentiated Responsibilities (CBDR)

  • The common concept of sustainable development poses a common challenge to all countries but because of different development paths, industrialized or developed countries may be asked to carry more of the immediate burdens. This has led to the evolution of the concept of common but differentiated responsibilities.
  • The principle of common but differentiated responsibilities is a manifestation of general principles of equity in international law.
  • The principle recognizes historical differences in the contribution of developed and developing States to global environmental problems, and differences in their respective economic and technical capacity to tackle these problems. Therefore, despite their common responsibilities important differences exist between the stated responsibilities of developed and developing nations.
  • The ‘common responsibilities’ describes the shared obligations of two or more States towards the protection of a particular environmental resources, taking into account its relevant characteristics and nature, physical location and historic usage associated with it. Natural resources can be the property of a single State, or a shared natural resource or subject to a common legal interests or the property of no State.
  • The ‘differentiated responsibilities’ of States for the protection of the environment is widely accepted in treaty and other practice of States.it translates into differentiated standards set on the basis of a range of factors including special needs and circumstances, future economic development of developing countries, and historic contributions to causing an environmental pollution.
  • The principle has two fundamental elements:
    • The first concerns the common responsibility for the protection of environment at national, regional and global levels.
    • The second concerns the need to take into account the different circumstances, particularly each State’s contribution to the evolution of a particular problem and its ability to prevent, control and reduce the threat.
  • Principle 7 of United Nations Convention on Environment and Development, 1992 (Rio conference) states that “In view of different contributions to the global environmental degradation, States have common but differentiated responsibilities. The Developed countries acknowledge the responsibilities 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.”
  • Similarly, the UNFCCC U/A 3 and 4 direct the developed countries to take the lead in combating climate change and its effect, while giving full considerations to the needs of developing countries.
  • The prime example in this regard is the mechanism provided under Kyoto Protocol. In Kyoto Protocol, only the countries listed in Annexure I [developed countries and countries with economy in transition] have quantified emission reduction targets under the agreement. Additionally, the UNFCCC [United Nations Framework Convention on the Climate Change] along with the Kyoto Protocol establish general obligation of co-operation towards technology transfer and, provide for financial assistance for mitigation and adaptation to developing countries. These are all the mechanisms aimed at operationalizing the common but differentiated responsibilities.
  • In practical terms the application of the principle of common but differentiated responsibilities has at least two consequences:
    • Firstly, it entitles or it requires all concerned States to participate in international response measures aimed at addressing environmental problems.
    • Secondly, it leads to environmental standards which impose differing obligations on States.
  • Despite its recent emergence in current formulations the principle finds its roots prior to UNCED and is supported by State practice at regional and global levels.

Sustainable Development (SD)

  • Sustainable development, in simplest terms, refers to development that is sustainable.
  • Development can be defined as a collective process of change towards improvements in quality of life for human beings and their communities’ sustainability refers to the need for development to be integrated- socially, economically, and environmentally sound having a long lasting ability. Thus the terms ‘sustainable development’ implies three basic objectives:
  • Economic Development: An economically sustainable development must be able to produce goods and services on a continuing basis to maintain manageable levels of governments (national, state and local) and to avoid imbalances which can damage agricultural and industrial pollution.
  • Environmental Protection: an environmentally sustainable system must maintain a stable resource base avoiding over-exploitation of renewable resources and depleting them only when substitutes are available
  • Social Welfare: A socially sustainable system must achieve distributional equality, adequate provisions of social services including health and education, gender equality and public participation.
  • The term sustainable development was coined for the first time in the World Commission on Environment and Development, 1987 and appeared frequently in its report called “Our Common Future” [more popular as Brundtland Report]. The Report defines it as “development that meets the need of present generation without compromising the ability of future generations to meet their own needs.
  • Although the concept of sustainable development was introduced in the 1987 Brundtalnd commission, but that does not mean the notion of sustainable development was not there prior to 1987. For instance, the 1972 Stockholm Declaration, though not expressly and specifically, under Principle 13 refer to the duties of the States to integrate economic development with the protection of environment.
  • The Rio declaration goes further more than most of the instruments by expressly stating that “in order to achieve sustainable development, environmental protection shall constitute an integral part of the developmental process and cannot be considered in isolation from it.
  • Four recurring elements appears to comprise the legal elements of sustainable development, as reflected in the international instruments:
  • The need to preserve natural resources for the benefit of future generations: Principle of IGE
  • The aim of exploiting the natural resources in a manner which is sustainable and prudent or wise or rational: Principle of sustainable use.
  • The equitable use of resources: the Principle of Sustainable Use.
  • The need to ensure that environmental considerations are integrated into economic and other developmental plans, programs and that developmental need are taken into account in applying environmental objectives: Principle of Integration.

Apart from these four principles, three new principles have recently been incorporated under the notion of sustainable development: obligation to assist and cooperate; eradication of poverty, financial assistance to developing countries. Together these seven principles aim at creating a balance between environment and development.

Precautionary Principle

  • The Precautionary principle only began to appear in international legal instruments in the mid 1980’s. It aims to provide guidance in development and application of environmental law where there is scientific uncertainty.
  • The Precautionary Principle underlies the concept of sustainable development which requires that the development must be stopped and prevented if it causes serious and irreversible environmental damage.
  • Instance of Precautionary Principle: when the impacts a particular activity – such as the emission of a hazardous substances- are not completely clear, the general activities is to let the activity go ahead until the uncertainty is resolved completely. The Precautionary Principle counters such general presumptions. When there is an uncertainty regarding the impacts of an activity, the Principle advocates actions to anticipate and avert the environmental harm. In this case, the Precautionary Principle will favor monitoring, preventing or mitigating uncertain potential threats.
  • The Precautionary Principle represents a shift in decision-making. Accordingly, it allows for five key elements that can prevent irreversible damage to people and nature:
  • Anticipatory actions i.e. the duty to take actions to prevent harm
  • Right to know i.e. community’s right to know complete and accurate information on potential human health and environmental impacts
  • Alternatives assessments i.e. to examine a full range of alternatives and select the alternative with the least potential impact on human health and environment.
  • Full cost accounting i.e. cost benefit analysis
  • Participatory decision process i.e. decisions applying this principle should be transparent and public participatory
  • This principle thus assumes that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it is presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harms.
  • The basis for emergence of this principle is the non-availability of full information about the widespread ramifications, serious and irreversible harm which may be caused, based on scientific experiments. This is known as ‘inadequacies of science’.
  • Thus, PP is a notion which supports taking protective actions before there is complete scientific proof of risks i.e. actions should not be delayed simply because there is a lack of full scientific information.
    • The question which arises is when these precautionary steps have to be taken?
    • When there are threats of serious or irreversible damage
    • When there are significant risks of damage
    • When there is a reason to believe that damage is likely to occur
    • When there is no full proof of harmlessness
  • The Principle appeared for the first time in a Declaration adopted by an International Conference on the North Sea in 1987 and is now included in almost all the International Instruments related to environmental protection adopted since 1990’s.
  • Principle 15 of Rio Declaration, 1992 states that “In order to protect the environment, the Precautionary principle shall be widely applicable by the States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full certainty shall not be used as a reason for postponing cast effective measures to prevent environmental degradation.
  • The Indian Supreme court has also adopted this principle and currently, the legislature is also trying incorporating it in various environmental legislations.

Polluter Pays Principle (PPP)

  • Under environmental law, the polluter pays principle is enacted to make the party producing pollution responsible for paying the damage done to the natural environment.
  • According to this principle, the polluter should pay for the expenditure of pollution control measures such as the investment in anti-pollution installations, the costs of running these installations and introduction of new processes so that a necessary environmental quality objective is achieved.
  • The main objective of polluter pays principle is that the polluter should bear the expense of carrying out the measures decided by public authorities to ensure that the environment is in an acceptable state.
  • The polluter pays principle never got featured in Stockholm Conference. However, the first international document to refer expressly to the polluter pays principle was the 1972 OECD Council Recommendations on guiding Principles Concerning the International Economic Aspects of Environmental Policies.
  • Principle 16 of Rio Declaration states that: “national authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account that the polluter should bear the cost of pollution with due regards to public interest and without distorting international trade and investment.
  • Thus, polluter pays principle aims to avoid the wastage of natural resources and to put an end to the cost-free use of environment.
  • In this way, this principle is considered to be the most efficient way of allocating costs of pollution. Prevention and control measures introduced by the public authorities to encourage rational use of scarce natural resources.

Inter-Generational Equity (IGE)

  • The use if the term Inter-Generational Equity is a concept of recent origin under the regime if international environmental law.
  • Inter-Generational Equity is a concept that says that human beings hold the natural and cultural environment of the earth in common- both with the members of present and future generations. It simply portrays that we have inherited our earth from our ancestors and have an obligation to pass it on in reasonable conditions to future generations.
  • The principle of Inter-Generational Equity is based on the notion that ‘justice between generations requires equity between generations’. Accordingly, each person has an inherent right to exist, survive threats, have access to resources and pursue a decent life, despite his or her social and economic status.by the same token, unborn generations must inherent various opportunities for a good life that have not been diminished by those who came before them.
  • The central notion of Inter-Generational Equity is that the future generations shall have the same access to the resources and ecological services that the current generation is enjoying.
  • There are three required principles of Inter-Generational Equity and these principles require that the current generation has following obligations on their part:
  • CONSERVATION OF OPTIONS: fulfillment of this principle can be accomplished not only by conservation of resources directly, but also by mew technological developments that creates substitutes for existing sources.
  • CONSERVATION OF QUALITY: each generation is required to maintain the quality of planet so that it is passed on in no worse condition than in which we received from previous generations.
  • CONSERVATION OF ACCESS: each generation should provide its members with equitable rights of access to the legacy of previous generations and should conserve this access for future generations.
  • The principle of Inter-Generational Equity is one of the central components of sustainable development. This is apparent from the most widely accepted definition of sustainable development featured in Brundtland Report. And accordingly, sustainable development is the development that meets the needs of present generations without compromising the ability of future generations to meet their own needs.
  • Principle 1 of Stockholm Conference proclaims that: ‘man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears the solemn responsibility to protect and improve the environment for present and future generations
  • The principle was again reaffirmed at Rio Declaration, 1992 in Principle 3 which provides that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Environment Impact Assessment (EIA)

  • Generally, and Environment Impact Assessment can be described as a study of the adverse consequence which any planned project may have on the environment.
  • There are two main functions of EIA which operates to achieve its objectives:
  • The findings of Environment Impact Assessment come out as a report which affects the decision whether the development project should be implemented. It also suggests whether the projects should be modified to minimize the consequences of the environment.
  • Secondly, it encourages public participation that is likely to be affected by installation of such projects.
  • Environment Impact Assessment is a combination of procedural rules and environmental values requiring the decision makers to account for and justify their decisions.
  • Environment Impact Assessment is of two types: mandatory method and discretionary method. Under mandatory method the Environment Impact Assessment procedure is made compulsory and the environmental agencies are obliged to submit Environment Impact Assessment before taking up any project. This ensures information to public and promotes their participation in decision-making process, thereby balancing the interests of both the public as well as the person carrying out such project. Under discretionary method however, Environment Impact Assessment is not compulsory and depends upon the administrative authority to demand for the process. The drawback of discretionary method is that it gives unbridled and arbitrary powers to the administrative authority.
  • Principle 17 of Rio Declaration incorporates this principle which states that “Environment Impact Assessment as a national instrument shall be undertaken for proposed activity that are likely to have significant impact on the environment and are subjected to a decision of a competent national authority.
  • The best definition of Environment Impact Assessment comes from IAIA [International Association for Impact Assessment] which provides that- “Environment Impact Assessment is a process if identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposal prior to major decisions being taken and commitments made.
  • It is a tool that seeks to ensure sustainable development through the evaluation of those impacts arising from a major activity that are likely to have significant environmental impacts.
  • Thus, the Environment Impact Assessment is anticipatory, participatory and systematic in nature.

Public Trust Doctrine (PTD)

  • The Public Trust Doctrine rests on the principle that certain resources like air, sea, water, forests have such a great importance to the people that it would be wholly unjustified to make them a subject of private ownership. It is believed that they being the gifts of nature should be made freely available to everyone irrespective of status in life.
  • The doctrine puts an obligation on the States to protect the resources for enjoyment of general public rather than to permit their use for private partnership or commercial purposes.
  • With this obligation, three types of restriction are put on the governmental authority:
  • The property must not only be used for public purpose but it must be held available for use by the general public.
  • The property must not be sold even for a fair amount of case.
  • The property must be maintained only for specific types of uses. [City around a small forest. The forests should be converted to and used as a small recreational park or zoo.]
  • The ancient laws of the Roman Kingdom held that natural resources like sea, seashores, air, running water was common to everyone and thus, could not be appropriated (res nullius) and commonly open to everyone (res communis). This principle came to be known as Public Trust Doctrine.
  • The principle also prevailed under the English law and under that legal system the sovereign could hold these resources in trusteeship.

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