REGULATING THE PRINCIPLES OF THE INTERNATIONAL ENVIRONMENTAL LAW A CRITICAL ANALAYSIS WITH RESPECT TO ENVIRONMENT BY - JASLEEN KAUR BAHRI , SHREEYA BISWAS & MOHD YASIR KHAN
REGULATING THE PRINCIPLES OF THE INTERNATIONAL ENVIRONMENTAL LAW A
CRITICAL ANALAYSIS WITH RESPECT TO ENVIRONMENT
AUTHORED BY - JASLEEN KAUR BAHRI[1],
“Sooner or later, we will have to recognize
that the Earth has rights, too, to live without pollution. What mankind must
know is that human beings cannot live without Mother Earth, but the planet can
live without humans.”
Evo Morales
ABSTRACT
The research study encompasses a
critical analysis of the existing international environmental law principles.
The emphasis has been laid on the shortcomings of the principles with a view to
assess their efficacy in dealing with environmental issues. This has been done
by analyzing the nature and origin of these principles and the extent to which
they function in the protection of the international environment and their role
as sources of environmental laws for the protection of the environment. The
overall design is to make suggestions which enhance the growth of international
environmental law in this regard.
INTRODUCTION
Massive enhancement of
scientific knowledge, developmental and economic pursuit by human beings has
resulted in radical and irrevocable changes in the environment, coupled with
the augmentation of demographic statistics as well as the consistent decrease
in non-renewable natural resources. Human activities have consistently degraded
the quality of the land, air as well as water, which form the primary
constituents of our environment. Such environmental issues led to the various
conventions by the United Nations (UN) and other conventional bodies which
further resulted in certain treaties, declarations etc. laying down methods to
protect and preserve the environment for present as well as the future
generations.
A byproduct of these
conventional declarations
& treaties are principles of international environmental law that have come to play an ever-increasing role in international
as well as national environmental law and policy making. As a matter of fact,
the protection and preservation of the environment is more and more seen
as a “question of principle”.[4]
Therefore, in current times, the principles of international environmental law
have gained much more importance. In this background, an in-depth study to
assess the efficacy of these international environmental principles and their
shortcomings is desirable in order to facilitate the growth of international
environmental law.
The research study encompasses a
critical analysis of the existing international environmental law principles.
The emphasis would be laid on the inadequacies of the principles with a view to
assess their efficacy in dealing with environmental issues. This would be done
by analyzing the nature and origin of these principles and the extent to which
they function in the protection of the international environment. Their role as
sources of environmental laws for the protection as well as preservation of the
environment would also be dealt with. The overall idea is to make suggestions
which enhance the growth of international environmental law in this regard and
help in creation of new frontiers for the application of these principles of
international environmental law.
LITERATURE
REVIEW
·
Wilkinson’s “Environment and Law” initially describes and explains law
and legal systems, the concept of the environment, sources of environmental law
and some of the techniques used in environmental law. It then examines some of
the major connections between law and the disciplines of economics,
science, ethics, and politics. Some of the issues discussed are: How economic
instruments can offer alternatives and supplements to traditional ‘command and
control’ forms of environmental regulation; the role of science in the
resolution of environmental law disputes; the response of environmental
law to the rise in theories of environmental ethics; and the
kinds of political entities that are most conducive to high standards
of environmental protection.
·
Burge’s “The principle of Polluter
pays in Economic Law”
identifies four versions of the polluter pays principle as: economically, it
promotes efficiency; legally, it promotes justice; it promotes harmonization of
international environmental policies; and it defines how to allocate costs
within a State and thereafter, embarks upon the economic arguments in favour of
and against the principle of polluter pays in international environmental law.
·
Kramer’s “E. C Treaty and
Environmental Law”
forms and excellent guide to European law relating to
the environment. This text examines the content and impact of the various
measures taken and the effect of, the environment articles of the EC treaty. It
covers developments relating to Maastricht and the EEA.
·
McGoldrick’s “Sustainable
Development and Human Right: An integrated conception” seeks to present an integrated
conception of sustainable development, with particular emphasis on the
contribution of international human rights law and theory. It considers
parallels between sustainable development and self-determination, while
providing some general reflections on international environmental law and
international human rights in terms of analogous concepts, principles and
systems.
·
Verschuuren’s “Sustainable
Development and the Nature of Environmental Legal Principles” answers three fundamental questions:
1. Where does the high moral value that is usually attributed principles come
from? 2. What is the exact difference between a principle and a legal rule, and
between a principle and a policy? 3. What is the relationship between a
principle and more concrete legal rules and policies? It is argued that
principles of environmental law receive their high moral value from the ideal
of sustainable development. The author asserts that the principles form a
necessary link between directly applicable and enforceable environmental legal
rules and the underlying ideal. They are a necessary medium for ideals to find
their way into concrete rules and can be used to bridge the gap between the
morality of duty and the morality of aspiration. Because of their basis in
(written or unwritten) law and their possible direct and intense influence on
legal rules concerning activities that may harm the environment, they must be
placed within the morality of duty: a bridgehead within the morality of duty
reaching out for the morality of aspiration.
NATURE OF
INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES
The
principles in international environmental law basically derive their existence
from different international conventions and the declarations that are made
under them. A very good illustration of the same can be found in the Stockholm
Declaration of 1972 which was adopted by the signatory countries at the “United
Nations Conference on the Human Environment”. It is the principles contained
within the Declarations which have come to be known as principles of
international environmental law.
BREAKING
DOWN PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
International
environmental law has given birth to a set of principles, which form the
bottom-line of its application. This is because international law is formed by
a “consensus of ideas and behaviour between states”. A look at the conventions
and declarations reveal the following major recognized principles of
international environmental law.
[I.]
THE PREVENTATIVE PRINCIPLE (NO-HARM RULE)
The
preventative principle also known as the “no harm” rule is the idea that it is
mandatory for the states, corporations, or individuals to take measures to
refrain from causing damage to the environment, which is inclusive of the
environment further than their territory. It has its origin in the Trail
Smelter Arbitration[5] a
case arising from damage to crop and property in the United States of America
resulting from emissions from a Canadian Smelter. In formulating the principle,
the tribunal held that:
“Under the principles of international law, as well as
the law of the united states, no state has the right to use or permit the use
of its territory in such manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the case is of
serious injury and the injury is established by clear and convincing evidence.”[6]
Principle
21 of the 1972 Stockholm Declaration at the UN Conference on the Human
Environment reiterated the preventative principle:
“States have…the responsibility to ensure that
activities within their own jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national
jurisdiction.”[7]
damage.[8]
The above criticism is hinged on the fact that the obligation imposed by the
preventive principle is imprecise and cannot easily be converted into concrete
standards.[9] In
the United State case of Amlon Metals v. FMC Corp. Inc,[10] it was held that
principle 21 of the Stockholm Declaration does not set forth any specific
prescriptions, but rather refers in a general sense to the responsibilities of
nations not to cause damage to extraterritorial environment.
[II.]
THE PRECAUTIONARY PRINCIPLE
The precautionary principle is embedded in the notion
that lack of full scientific evidence should not prevent or delay action to
protect the environment from harm or prospective harm. In
other words, the precautionary principle stipulates that measures to prevent
environmental degradation should not be postponed as a result of absence of
complete scientific evidence. The precautionary principle was included in
principle 15 of the Rio Declaration on Environment and Development 1992, which
provides as follows:-
“In order to protect the environment, the
precautionary approach shall be widely applied by states according to their
capacities. 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.”
There appears to be confusion as to the thin line of
difference between the precautionary principle and the preventative principle
as some writers use the precautionary and the preventive principles without
distinction.[11]
This mistake has made one writer to say that the ‘precautionary principle’ is
also known as ‘prevention principle.[12]
However, Thornton putting the facts straight had this to say:
“The difference between the preventive principle and
the precautionary principle…is that the former requires states to take action
where there is a foreseeable risk of damage to the environment, whist the later
requires action where the risks associated with an activity are suspected but
are not fully known.”[13]
3.
That the precautionary principle is too ambiguous and therefore can result in
weak laws.
4.
That the precautionary principle urges inaction and ends up creating more risk
than it solves.[14]
5.
That elevation of the precautionary principle to the legal plane may cause
evidential difficulties.[15]
From the above, it appears the precautionary principle
failed to answer the critical question of how much precaution to apply in a
given circumstance before marginalizing the need to wait on scientific proof of
damages, as it is based on the notion that full scientific certainty is not
required before taking preventive measures. This therefore leaves it in an
ambiguous realm that calls for clarity. It is further argued that the precautionary
principle is too vague to guide actual decision making and that
its application creates much problem. It creates the opportunity for arbitrary
and unpredictable decisions by agencies, government and courts, etc.
Furthermore, the Precautionary principle does not
provide specific guidance as to what exactly must be shown to justify
precautionary measures as it leaves too much space for discretion. According to
Turner and Hartzell:
“The statement fails to indicate who must bear the
cost of precaution: what constitutes a threat of harm, how much precaution is
too much; and what should be done when environmental concerns and concern for
human health pull in different directions.”[16]
[III.] THE
POLLUTER PAYS PRINCIPLE
The polluter pays principle is founded on the idea
that the polluter should bear the expenses of carrying out environmental
cleanup resulting from his polluting activities. The principle in substance
means that the cost of environmental impairment, pollution damage and cleanup
should not be borne with tax payers fund or by the society, but that the person
who caused the pollution should bear the cost. The principle is contained in
Principle 16 of the 1992 Rio Declaration as follows:
“National
authorities should endeavour to promote 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 unduly distorting international trade and
investment.”
There are two justifications for this principle: one
economic, one ethical.[17]
The economic justification is explained away as reflecting the cost of
pollution control back into the polluter (“internalization”) wherein the
balance is restored. Theoretically, the polluter pays principle applies both to
(prospective) preventive controls and (retrospective) liability
regimes. The ethical argument develops from Aristotle’s view on corrective
justice that a person who wrongly harms another should give redress for that
harm.[18]
Four versions of the polluter pays principle have also been identified as:
economically, it promotes efficiency; legally, it promotes justice; it promotes
harmonization of international environmental policies; and it defines how to
allocate costs within a State.[19]
6. Polluters who pay usually pass the
cost unto the consumers.
Despite
the criticism and observations against the Polluter Pays Principle, it remains
a modern innovation in fixing liability on the polluter of the environment. The
existence of a standard framework of laws defining levels of pollution, their
corresponding liability and centred on strict liability will remove the burden
of proof associated with tort, i.e. proof of negligence.
[IV.]
SUSTAINABLE DEVELOPMENT
This is the most forward looking principle to emerge
from international activities on the environment. The concept of sustainable
development originated in the realization that the world’s environment, its
economies and the ways in which it treats its humans and animals are all
interlinked.[20] The concept has been
defined in numerous ways, but the most widely accepted definition of
sustainable development is that given in the Brundtland Report i.e.,
development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.[21]and
relates to economic development.[22]
It has also been said that the principle overreaches a broad range of
discipline. The achievement of sustainable development is supported by three
pillars: International environmental law, International human rights law, and
International economic law.[23]
Thus, the right to a sustainable environment is fundamental and equates with
the right to life. Quality of human and ecological life can only be sustained
where there is corresponding sustenance of the quality of the environment.
Therefore, sustainable development is about more than quality of life and
achieving balance among the social, economic and environmental price of a community.
Furthermore,
principle 5 of the Rio Declaration also integrated environmental, economic and
human rights issues as a pre requisite for attaining sustainable development.
The principle exhorts all states and all peoples to co-operate in eradicating
poverty and to decrease international disparities in standards of living in
order to meet the needs of majority of the world’s population. Sustainable
development also extends to issues of production and consumption vis-a-vis the
need to have specific population data. Sustainable development can only be
achieved when there is accurate information on the population relying on the
environmental resources for either economic, production or consumption
purposes. Principle 8 of the Rio Declaration, 1992 further extends this point
thus: “To achieve sustainable development and a higher quality of life for all
people, states should reduce and eliminate unsustainable patterns of production
and consumption and promote appropriate demographic policies.”
Principle of Sustainable Use: This
is the notion that states have a general obligation to ensure the sustainable
us of both living and non living natural resources. This obligation is
evidenced by the adoption of standards in treaties governing the rate at which
resources may be exploited. An example of this obligation is entrenched in the
Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) which limits the rate of poaching and trading on endangered species of
Flora and Fauna Nigeria was suspended in 2005 for non– compliance with the
provisions of the convention on preservation of endangered species. It has
however been said that there is no general obligation of States not to exhaust
non-renewable energy resources.[24]discussion.
RECOMMENDATIONS
1.
The
ICJ must engage in Judicial Activism to give life to these principles and to
accord them the status of Customary International Law.
2.
In
order to circumvent the weakness of the principles as soft laws, it is
suggested that legislative bodies should make these principles the underlying
factors in enacting environmental laws.
3.
There
is need to redefine the preventative principle to restrain the power to states
to apart from not causing damage to other territories, not to cause damage to
their internal environment.
4.
The
frontiers of the precautionary principle should be extended to place reliance
on either scientific proof or clear empirical knowledge before it is applied.
This will give it a ‘look before you leap’ character and not otherwise.
5.
Developed
nations must wake up to the responsibility of assisting developing nations with
standard technology for efficient utilization of natural resources for
sustainable development.
6.
The
principles of international environmental law should be made express in International
Treaties so they can be clothed with an aura of legality and enforceability.
CONCLUSION
The nature of principles of
international environmental law and its role as mere policy statements rather
than laws in themselves is not in doubt. They however, act as sources of
Customary International Law upon which states can legislate upon to protect the
environment. What is important is the will to translate the principles into
concrete enforceable norms as endorsement of the principles without clear
evidence of action and will to enforce them on the part of states cannot
establish these principles as rules of Customary International Law. The
International Court of Justice must engage in judicial activism while relying
on these principles to give valid decisions that transcend the limitations of
the principles as the aspect of Customary Law usually relied upon is case law.
The continued existence of these principles as “soft laws” or guiding
principles renders them ineffective. This is in addition to the need for states
to give life to the wordings of these principles as enforceable laws in their
territories.
There is the need to rethink the
principles of international environmental law to take cognizance of the
technological advancements. The need to also stabilize the economic and
developmental interest of developing nations before the issue of conservation
is imposed should be the focus of future deliberations on principles of
international environmental law. The conservation of natural resources cannot
be addressed without addressing and alleviating the problems of poverty which
must include universal access to education, access to safe drinking water,
proper sanitation, proper health care, improved employment opportunities and
transfer of technologies to the Developing nations which can only be achieved
through committed international cooperation. Unless the observed principles are
rebranded to address this imbalance between developing and developed nations,
conservation of natural resources and addressing of climate change problems
would remain a wild goose chase. Mere Principles of International environmental
Law will not save the environment from the hazards of human activity unless
they are rebranded and translated into concrete enforceable customary
international laws and the time to act starts now.
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·
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·
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·
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(Oslo: Juridisk Forlag, 1996).
·
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·
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·
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·
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Thornton, J., and Bekwith, S.,
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·
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·
Wilkinson, D., “Environment and Law”
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·
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·
Rio Declaration on Environment and
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·
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[1]
Author
[2]
Co- Author
[3] Co-
Author 2
[4] Wilkinson, D., “Environment and
Law” (London: Routledge, 2002), 100.
[5] (1938/1941) 3 R.I.A.A. 1905.
[6] See also the Corfu Channel Case (UK
v. Albania (1949) ICJ Rep. 4.
[7] See principle 2 of the Rio
Declaration on the Environment and Development, 1992 containing same principle.
[8] Ibid.
[9] Ibid.
[10] [1991] SDNY 668.
[11] Kramer, L., “E. C Treaty and
Environmental Law” (London: Sweet & Maxwell, 1995), 53.
[12] Supra 3, 245.
[13] Thornton, J., and Bekwith, S.,
“Environmental Law” (London: Sweet & Maxwell, 1997), 38.
[14] Ibid.
[15] Nichols v. Natural parks &
Wildlife Service [1994]5 Env. 1 ; Per Talbot J.
[16] Supra 23.
[17] Supra 1, 121.
[18] Ibid.
[19] Burge, H.C., “The principles of
Polluter pays in economic Law”, in Law and Economics, ed. Eide, E. and Van der
Bergh, R. (Oslo: Juridisk Forlag, 1996), 16.
[20] Supra 3, 247.
[21] Report of the World Commission on
Environment and Development: Our Common Future, 1987 (The Brundtland Report.).
[22] McGoldrick, D., “Sustainable
Development and Human Right: An integrated conception” International and
Comparative Law Quarterly 45 (1996) 796-818, available at: <http://www.jstor.org/stable/760584>
(accessed: October 21,
2017).
[23] Supra 22, 41.
[24] Hayward, Steven, “Sustainability
and Non-Renewable Resources”, Mackinac Center for Public Policy, available at:
<https://www.mackinac.org/2843> (accessed: October 22, 2017).