Principles of Environmental Law

Development has an inextricable nexus with the environment, i.e. natural resources are basic units to growth and progress without which humankind cannot survive. This dependence creates a responsibility on humans to protect and preserve said environment. However, this has been taken lightly over the years due to continuous exploitation causing damage to natural resources and our surroundings. To keep a check on such destructive activities, environmental law through statutes, rules, regulations on a national level and treaties, agreements and declarations on an international level have been employed. These sources have brought to light certain principles that have been globally accepted, and incorporated within domestic laws. The aim of this article is briefly explain these principles.

It is well established through international treaties and customary law that states have sovereign rights over their natural resources, but must be done in a manner that is not detrimental to the environment, development policies or other territories[1]. The Principle of Sovereignty and Responsibility has been founded and developed from this framework. Sovereignty is not absolute since it subjected to a general obligation to prevent environmental damage through its actions, as mentioned in the Rio Declaration (1992)[2] and other international treaties.

If a situation arises, where the resource does not entirely belong to one jurisdiction then the responsibility to just and harmonious utility of said resource is adopted between member states[3], however this is achieved after all prior information and consultations have been brought to light. The principle of common heritage of humanity is adopted in those areas, which are beyond the jurisdiction of the state, i.e. States cannot benefit from global property[4].

The above-mentioned Principle is also the foundation to that of Good Neighborliness and International Co-operation. It creates an obligation of the member nation to ensure that their activity are not be contrary to the rights of other states and not harm their citizens[5]. In essence, it is the application of the “sic utere tuo, et alienum non laedas” maxim, which translates to using ones property in such a way that it doesn’t injure others.

The Polluter Pays Principle has been a profound concept in environmental law. As the phrase literally states, ‘the person/authority that pollutes is obliged to pay for the damages caused not only to the environment but to those people affected by it’. The aim behind externalizing this is to ensure that the polluter bears the real cost of the pollution even though ascertaining the actual value has been difficult. This dominant principle has been incorporated in many domestic laws as well and has further been developed. The impact of this rule has widened the scope for pollution free and environment-friendly technologies that could improve the economy and environment.

The Precautionary Principle is also a well-recognized rule in environmental law having strong foundations in domestic law. It postulates that the polluter (whether a person, company, industry or government authority) is entrusted with the duty to ensure that preventive measure have been taken in the course of their activities to prevent damage to the environment and people.

Furthermore, principle 15 of the Rio Declaration states that lack of scientific certainty cannot be used as an excuse to justify postponing such measures to prevent environmental degradation[6]. These rules laid down are safeguards for victims (of the polluter act) to hold the polluter liable for his act and makes sure that steps are taken before hand to curb any potential (irreversible) damage.

Nations may have different methods to prevent environmental degradation; however, there is a common interest to protect the same. This is where the Principle of Common but Differentiated Responsibility comes into picture. Rio Declaration sheds light on said principle under Articles 4 and 7 respectively. There are two important takeaways from this principle- one, that all nations have the common obligation to protect the environment and should make the collective effort to prevent further damage; and two, that other factors (such as development, economic and environmental policies, current situation of the nation, affordability, etc.) can create certain situations where the burden of responsibility ( of conservation) can vary (among member nations)[7]. Therefore, it can be said that nations have a common end however, the means/method to achieve them differ with the given factors.

The Doctrine of Public Trust also happens to be a very well established principle in domestic law, which is commonly used in environmental law. Natural resources such as air, water, forests and other minerals are sources of sustenance for all living organisms and hence should be a common aid for everyone. To reiterate, the doctrine states that the public holds the trust property in common and the government hold the said property for public benefit[8]. Courts have further extended this meaning to prevent environmental degradation as well. This Doctrine helps regulate the use of these resources for common benefit rather than creating profits. It keeps a check on the use of the resource, which makes it easier to curb exploitation.

The purpose of employing all these principles and guidelines is to help countries move to a more sustainable form of living. Holistically, the Principle of Sustainable Development embodies the above said doctrines. It was first defined in the 1987 Brundtland report as an aim to meet the need of the people (especially those in need) without compromising the needs of the future generation[9]. It puts forth the idea that environment protection would only be achievable once human conditions have improved[10]. The Anthropogenic approach is that protecting the environment is not the only goal in itself but is also a need to ensure better quality of human life[11]. This principle constitutes three basic elements-

1. Intergenerational Equity- each generation has the obligation to ensure that resources have been used as per their need and take necessary steps to make sure it is made available for future generations

2. Sustainable use of Resources-shifting to more renewable use of resources and environmental friendly creations

3. Integration of environment and development- a holistic plan that places importance on all spectrums of development (social, economical, political and environmental) which, work hand-in-hand.

Ultimately, these principles are nothing but guidelines and frameworks that help achieve our end goal, but the collective effort that we as a global citizen make decides whether that goal has been achieved or not. While this Article briefly speaks about basic principle, there are many more doctrines and principle in environmental law that have been adopted such as, the Principle of Proportionality, Preventive Principle, Duty to Compensate, etc. They are all interlinked and dependent on the other. One cannot exist without the other and this is what paves the way to a sustainable form of living. It is as Ban Ki-Moon rightly says-

“Saving our planet, lifting people out of poverty, advancing economic growth… these are one and the same fight. We must connect the dots between climate change, water scarcity, energy shortages, global health, food security and women’s empowerment. Solutions to one problem must be solutions for all.”

[1] Soto, Max Valverde (1996) “General Principles Of International Environmental Law,” ILSA Journal of International & Comparative Law: Vol. 3 : Iss. 1, Article 10

[2] See United Nations Convention on the Rio Declaration of Environment and Development, June 15, 1992, princ. 2, 31 I.L.M. 876 [hereinafter Rio Declaration]

[3] Soto, Max Valverde (1996) “General Principles Of International Environmental Law,” ILSA Journal of International & Comparative Law: Vol. 3 : Iss. 1, Article 10

[4] Ibid.

[5] International cooperation was dictated by the International Court of Justice in Corfu Channel (U.K. v. AIb.), 1949 I.C.J. (April 22)

[6] Soto, Max Valverde (1996) “General Principles Of International Environmental Law,” ILSA Journal of International & Comparative Law: Vol. 3 : Iss. 1, Article 10

[7] Ibid.

[8] Kacy Manahan (2019) “ The Constitutional Public Trust Doctrine”, Environmental Law , Vol. 49, No. 1 (2019), pp. 263-305

[9] Ibid, supra note 6

[10] Soto, Max Valverde (1996) “General Principles Of International Environmental Law,” ILSA Journal of International & Comparative Law: Vol. 3 : Iss. 1, Article 10

[11] Ibid.

Author Details: Janavi Venkatesh

The views of the author are personal only. (if any)