1.
Overview
 Introduction
 Emerging Principles of Environmental Law
 Current Status and Issues with these Principles
 Conclusion

2.
Introduction
 The 1992 "Earth Summit" pronounces a catalogue of
concepts which it calls principles.
 Aim to determine the direction of state and actors in
IEL activity
 Two Kinds of Principles can be identified
 General principles of international law, as applied to
environmental issues.
 Principles of international environmental law in the
strict sense.

3.
Foundations & USE of Principles
 Principles provide a framework for negotiating and
implementing new and existing agreements
 Some principles provide the rules of decision for
resolving transboundary environmental disputes.
 Some principles provide a framework for the
development and convergence of national and
subnational environmental laws.
 Some principles assist in the integration of
international environmental law with other fields such
as international trade or human right

4.
General principles of International
law
 State Sovereignty
 State Sovereignty over Natural resources
 Common Heritage of Humankind
 State Responsibility

5.
State Sovereignty
 State sovereignty: at the core of international law.
 It implies both “territorial sovereignty” and “territorial integrity” The
two aspects are reflected in Rio principle 2 (Stockholm principle 21):
 “States have, in accordance with the Charter of the United Nations and
the principles of international law the sovereign right to exploit their
own resources pursuant to their own environmental and
developmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction.”
 However: The sovereign right to exploit the natural resources is limited
and conditioned by customary law, treaty law and other principles of
international environmental law.


6.
PERMANENT SOVEREIGNTY OVER
NATURAL RESOURCES
 The concept of permanent sovereignty over natural
resources, though subsumed under the broader principle of
territorial sovereignty, is of a relatively recent origin.
 The United Nations General Assembly declared,, that the
right of peoples and nations to permanent sovereignty over
their natural wealth and resources must be exercised in the
interest of their national development and of the well-
being of the people of the States concerned.
 Ardently Desired by the Developing nations.

7.
COMMON HERITAGE OF
HUMANKIND
 The global commons refers to those areas beyond the limits
of national jurisdiction such as the high seas, the sea-bed,
Antarctica, outer space, or the ozone layer.
 For resources in these areas, the concept of permanent
sovereignty is generally not applicable. although the rules
of cooperation and equitable use that apply to shared
resources also apply to global commons resources,
 Law of the Sea Conference perceived a need to generate a
new conceptual framework for addressing these resources.
 common heritage of humankind (Developing Nations)

8.
STATE RESPONSIBILITY
 The basic rule of State responsibility in the context of
environmental protection
 States are responsible for injuries caused to the
environment of another State or the global commons
resulting from violations of a generally accepted
international rule or standard.
 Principle 21 of the Stockholm Declaration:
 States have ... the responsibility to ensure that
activities within their jurisdiction or control do not
cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction

9.
STATE RESPONSIBILITY
 Requirements
 The environmental damage must result from a violation of
international law. Problematic due to soft law
 difficult questions of proof.
 A state is responsible both for its own activities and for activities
of private corporations or individuals under its jurisdiction or
control.
 Under this rule, States may be responsible for not enacting or
enforcing necessary environmental laws,
 There must be no justifying circumstances, such as consent by
the affected State or an intervening cause, such as an act of God.
 (iv) The damage must be "significant," which can present serious
problems of proof and quantification.

10.
ADMINISTRATIVE AND JUDICIAL
PROCEEDINGS
 Central to the issues of compensation for environmental
harm is the emerging trend toward equal access to
administrative and judicial proceedings.
 Under the equal access principle, affected parties in one
State should be provided the same access to remedies and
redress as would be provided to affected parties in the State
where the polluting activities are located.
 The principle extends both to planning processes, such as
the environmental impact assessment provisions, and to
issues of liability and compensation

11.
General principle of International
Environmental Law
 Sustainable Development
 Intergenerational Equity
 Common But Differentiated Responsibilities
 Obligation Not to Cause Environmental Harm
 The Precautionary Principle
 The Polluter and User Pays Principle
 Subsidiarity , M. Good Neighborliness and the Duty to Cooperate
 N. Duties to Provide Prior Notification and to Consult in Good Faith
 Environment Impact Assessment

12.
Status of Emerging Environmental
Principles
 The current interest in the principles of international
environmental law stems to a large extent from a need
to define and give content to the notion of sustainable
development

13.
Sustainable development
 The international law of sustainable Development is
contained within a series of United Nations (UN)
General Assembly (GA) facilitated global summits

14.
conceptualization of sustainable
development
 Until 1972 multilateral environmental agreements (MEAs)
had focussed on first generation environmental problems
 1972 linkage between economic and environment and
development became prominent
 Stockholm Declaration, a statement of 26 principles calling
upon governments and peoples to exert common efforts for
the preservation and improvement of the human
environment.
 Principle 1 of the Declaration at least implicitly suggested
that there was a human right to a healthy environment.
Second, Principle 21strikes a balance between a State’s
sovereignty and its obligation not to cause harm

15.
Conceptualisation and origin
Continues
 World Commission on Environment and Development
(WCED) to investigate the state of the global
environment. The outcome of the Commission’s work
was its 1987 seminal report, ‘Our Common Future’.


16.
Modern Definition Begins in the
former science
 Our Common Future (1987), defined sustainable
development as "development that meets the needs of
the present without compromising the ability of future
generations to meet their own needs," which has
become the accepted standard definition.
 three components to sustainable development:
economic growth, environmental protection, and
social equity

17.
Components Expanded
 Patricia Birnie and Alan Boyle, identifies Following
Components
 the environmental needs of future generations;
 environmental protection to be an integral part of
development;
 common but differentiated responsibilities; reduction of
unsustainable patterns of production and consumption;
 enactment of effective environmental laws;
 recognition of the precautionary principle;
 internalization of environmental costs and the use of
economic instruments.

18.
Components further detailed
 Delhi Declaration (2002) ILA
 The duty of States to ensure sustainable use of natural resources;
 The principle of equity and the eradication of poverty;
 The principle of common but differentiated responsibilities;
 The principle of the precautionary approach to human health,
natural resources and ecosystems;
 The principle of public participation and access to information
and justice;
 The principle of good governance;
 The principle of integration and interrelationship, in particular
inrelation to human rights and social, economic and
environmental objectives.

19.
Elaboration Sustainable Principle
in Documents
 the Rio Declaration on Environment and Development
(Rio Declaration) and the associated agenda 21
reiterated SD
 Principle 3 incorporates The right to development
must be fulfilled so as to equitably meet
developmental and environmental needs of present
and future generations. States and people should
cooperate in spirit of partnership in the fulfilmet of
principles embodies in the declaration and in the
development of international law in the field of
sustainable development

20.
Rio Declaration on Components of
Sustainable development
 Principle 4 In order to achieve sustainable development,
environmental protection shall constitute an integral part of the
development process and cannot be considered in isolation from it.
 Principle 7 In view of the different contributions to global
environmental degradation, States have common but differentiated
responsibilities
 Principle 8 States should reduce and eliminate unsustainable patterns
of production and consumption and promote appropriate demographic
policies.
 Principle 11 States shall enact effective environmental legislation.
Environmental standards, management objectives and priorities
should reflect the environmental and development context to
which they apply. Standards applied by some countries may be
inappropriate and of unwarranted economic and social cost to
other countries, in particular developing countries.

21.
Rio Declaration on Components of
Sustainable development
 Principle 16 Rio 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,
 PRINCIPLE 17 Environmental impact assessment, as a
national instrument, shall be undertaken for proposed
activities that are likely to have a significant adverse
impact on the environment and are subject to a
decision of a competent national authority.

22.
RIO
 Principle 27
 States and people shall cooperate in good faith and in a
spirit of partnership in the fulfilment of the principles
embodied in this Declaration and in the further
development of international law in the field of
sustainable development.

23.
Elaboration OF SD Post RIO
 The 2002 Johannesburg World Summit on Sustainable
Development (WSSD or World Summit) is the most recent of
the GA sponsored sustainable development initiatives.
 Three instruments were adopted: the
 Johannesburg Declaration on Sustainable Development
(Johannesburg Declaration);
 the Plan of Implementation of the World Summit on Sustainable
Development (Plan of Implementation); and the Statement
Regarding the Use of Renewable Energy
 The Declaration speaks generally about poverty eradication and
sustainable development
 To achieve our goals of sustainable development, we need more
effective, democratic and accountable international and
multilateral institutions.

24.
Sustainable development Current
Status and Problems
 No Clear cut definition and ambiguous nature
 not clear whether procedural or substantive
 FOR IUCN Legal term which refers to processes,
principles and objectives as well as to a large body of
international agreements on environmental ,
economic , civil and political rights (IUCN Report on
the consultation on sustainable development the
challenge to international law

25.
Sustainable development Current
Status and Problems
SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
PRINCIPLE OF INTERNATIONAL LAW?
 Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)
 This ICJ case concerned a system of dams on the Danube
River designed to produce electrical energy and improve
the “navigability of the Danube, flood control and
regulation of ice-discharge, and the protection of the
environment.”

26.
Gabcikovo-Nagymaros Project
(Hungary/Slovakia) (1997

27.
SUSTAINABLE DEVELOPMENT AS A CONCEPT
OR PRINCIPLE OF INTERNATIONAL LAW?
 Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997)
 The International Court of Justice judgment, included the
following paragraph “risks for mankind – for present and
future generations,” and the “concept of sustainable
development”:
 “This need to reconcile economic development with
protection of the environment is aptly expressed in the
concept of sustainable development “

28.
SUSTAINABLE DEVELOPMENT AS A CONCEPT OR PRINCIPLE OF
INTERNATIONAL LAW?
 Gabcikovo-Nagymaros Project (Hungary/Slovakia) in
1997, the ICJ explained the “concept” of sustainable
development, though a dissenting opinion argued that
sustainable development is a “principle of
international law

29.
SUSTAINABLE DEVELOPMENT AS A CONCEPT OR
PRINCIPLE OF INTERNATIONAL LAW?
Weeraramtry, opined The Court has referred to it as a
concept in paragraph 140 of its Judgment. However, I
consider it to be more than a mere concept, but as a
principle with normative value….” “There are plentiful
indications …to that degree of ‘general recognition
among states of a certain practice as obligatory’ to give
the principle of sustainable development the nature of
customary law

30.
Other Judicial Bodies on SD
 Shrimp case (WTO) USA against India, Malaysia ,Pakistan
and Thailand
 Contention Extraterritoriality of conservation laws
 Article XX exhaustible natural resources whether extend to
Shrimps also.
 Decision Exxtra territorial possible, But unjustifiable
discrimination Appears to be arbitrary because of identical
demand No negotiation and co-0peperation as require din
Rio and CBD (Procedural requirement too exist in SD)
 Case recognise sustainable development but does not
recognise the status as custom or General principles

31.
Academic writings
 Boyle AE, “The Gabčikovo-Nagymaros Case: New
Law in Old Bottles” (1997) 8 Yearbook of Int’l Envtl
Law 13, argued that the Gabčikovo-Nagymaros
case endorsed sustainable development as having a
role in reconciling the competing interests of
development and environmental protection
 Lowe V, “Sustainable Development and Unsustainable
Arguments”, no consistent state practice The State
practice of sustainable development’s environmental
principles although abundant lacks the requisite
uniformity for customary incorporation

32.
State Practice
 At the same time many States have incorporated
sustainable development’s environmental principles
into domestic planning and environmental legislation.
Are these international and domestic initiatives
sufficient to reflect State acceptance and a rule of
customary international law
 It demonstrates varying levels of State acceptance of
the separate Difficult to determine whether a custom
under Int Law

33.
S D Elaborated recently
 The concept of “environmental services” has also
become linked with sustainable development.
According to the 2002 Antigua Convention
 services provided by the functions of nature itself,
such as the protection of soil by trees, the natural
filtration and purification of water, and the protection
of habitat for biodiversity (Art. 3(1)(c)).

34.
Conclusion
 The central message of sustainable development
is that we need to use natural resources at rates
where the resources replenish themselves
coupled with moral obligation to safeguard the
environmental needs of current and future
generations.

35.
Intergenerational Equity

36.
INTER-GENERATIONAL AND INTRA-
GENERATIONAL EQUITY
 Fundamental underpinning of sustainable
development
“development that meets the needs of the present
without compromising the ability of future
generations to meet their own needs”
 UNFCC, Article 3.(i) refers to inter-generational
equity
 CBC , Preamble
 UNCCD
 Stockholm Convention on Persistent Organic
Pollutants

37.
 The theory of intergenerational equity is closely linked to
the notion of sustainable development.
 The theory of equity between generations relies on the
"inherent relationship that each generation has to other
generations, past and future,
 Intergenerational equity emphasizes the temporal aspect of
the concept, meaning that it relies on the rights and
obligations that each generation has toward the others. The
intragenerational aspect can be addressed as a morespatial
matter, because it prevents the rights and obligations
deriving from the intergenerational aspect from being
allocated to only one portion of the international
community.
Conceptualisation

38.
 Developments in Int law in temporal matter started with
Human Rights genocide etc
 UDHR Preamble indirectly recognises this Whereas
recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world,
 In public international law, Judge Huber enunciated the
intertemporal doctrine in the Island of Palmas Arbitration,
which involved a dispute between the United States and
the Netherlands over sovereignty of the small Pacific
island.
Development

39.
 Principle 2 Stockholm states that "the natural
resources of the earth ( ... ) must be safeguarded for
the benefit of present and future generations
 Rio Principle 3 The right to development must be
fulfilled so as to equitably meet developmental and
environmental needs of present and future
generations.
Elaboration of Intergenerational
Equity in Int Law

40.
 The basic concept is that all generations are partners caring for
and using the Earth. This leads to three principles of
intergenerational equity: options, quality, and access.
 The first, comparable options, means conserving the diversity of
the natural resource base so that future generations can use it to
satisfy their own values.
 The second principle, comparable quality, means ensuring the
quality of the environment on balance is comparable between
generations.
 The third one, comparable access, means non-discriminatory
access among generations to the Earth and its resources. These
three principles engender planetary rights and planetary
obligations.
Components of Intergenerational
Equity (Propounded By WEISS)

41.
 The first boundary consists of the preservationist model,
where "the present generation does not consume anything;
rather it saves aIl resources for future generations and
preserves the same level of quality in aIl aspects of the
environment
 The second boundary is made of the opulent model, "in
which the present generation consumes aIl that it wants
today and generates as much wealth as it can, either
because there is no certainty that future generations will
exist or because maximizing consumption today is the best
way to maximize wealth for future generations,,.
Approaches and Models in
Application of Intergenerational
Equity

42.
 Judge Weeramantry, ICJ
 In the case of Denmark v Norway case the International Court of
Justice considered the question of delimitation of the Continental Shelf
between the islands of Greenland and Jan Mayen. Judge Weeramantry
gave a separate concurring opinion which he based on the right to
Interganarational Equity. He noted, "[T]he concept of wise stewardship
[of natural resources]...and their conservation for the benefit of future
generations”
 Again in the 1995 Nuclear Tests Case, he observed,
 The case before the court raises, as no case before the court has done,
the principle of intergenerational equity - an important and rapidly
developing principle of contemporary environmental law...The court has
not thus far had occasion to make any pronouncement on this rapidly
developing field...[The case]...raises in pointed form the possibility of
damage to generations yet unborn”
Judicial Appoaches

43.
 Judge Weeramantry
 Gabcíkovo- Nagymaros decision that modern
formulations of environmental law encompass “the
principle of trusteeship of earth resources [and] the
principle of intergenerational rights.” In a different
opinion, he described the court as a “trustee of those
rights.”
Judicial Approaches continues

44.
 Article 38 is the reference point for sources in
international law. Can we thus conclude that equity is
a source of international law?
 For the IC], an application of equity can only be made
possible if the parties explicitly require it.
 Intergenerational Equity a Rule of Principle
 While a rule is practical and binding, a principle
"expresses a general truth, which guides our action,
serve as a theoretical basis for the various acts of our
life, and the application of which to reality produces a
given consequence".
Normative Problem with the
concept of Equity

45.
 According to Alexandre Kiss and Jean-Pierre Beurier,
intergenerational equity cannot be considered as a
principle of international law; it must be viewed as a
concept.
 Weiss While principles consist of concrete legal
norms, from which rules can derive, such as the
principle of international cooperation or the
precautionary principle, concepts are considered as
abstract representations of the objectives that the
society wants to reach
 Shows lack of consensus on the problem
Normative Problem with the
concept of Equity Continues

46.
 WEISS
 Limitations on the present generation should be applied
very narrowly, lest the rights of future generations develop
into an all-purpose club to beat down any and all proposals
for change. But surely long-term environmental damage is
a good place to begin. Future generations really do have the
right to be assured that we will not pollute ground water,
load lake bottoms with toxic wastes, extinguish habitats
and species or change the world’s climate dramatically—all
long-term effects that are difficult or impossible to
reverse—unless there are extremely compelling reasons to
do so, reasons that go beyond mere profitability.
Conclusion

47.
 Scientific uncertainty regarding the evidence of a link
between human activity (as a cause) and its impact on
the environment (as a consequence) has been an
enormous obstacle for law making in the area of
environmental protection.
 The Federal Republic of Germany has been a pioneer
in the area of the “precautionary approach” towards
the environment: they formulated the principle of
precaution (Vorsorgeprinzip) in their domestic law in
1974.
“Vorsorge.”
PRECAUTION PRINCIPLE Origin

48.
 An indirect reference to the precautionary principle
was made in a non-binding international document–
the Bremen Ministerial Declaration of the
International Conference on the Protection of the
North Sea.
 But it remained ill-defined, and its philosophical
reputation is low.
Beginning of Precautionary
principle internationally

49.
PrecautionaryPrinciple:
 Rio Declaration. Principle 15 of the Declaration states 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 be
not used as a reason for postponing cost-effective measures
to prevent environmental degradation

50.
 According to D. Vanderzwaag, about 14 different
definitions of the precautionary principle exist in Int
law
 Currently, the precautionary principle is used in more than
90 international declarations and agreements
 UN Framework Convention on Climate Change (1992),
 Third North Sea Conference (1990)
 Ozone Layer Protocol (1987).
 UN Environment Program (1989),
 EU environment policy (1994)
 US President’s Council on Sustainable Development (1996)
 Stockholm decllration
Elaboration of Precautionary
Principles in Documents

51.
 Carol Raffensberger and Joel Tickner suggest:
 In its simplest formulation, the precautionary principle has
a dual trigger: If there is a potential for harm from an
activity and if there is uncertainty about the magnitude of
impacts or causality, then anticipatory action should be
taken to avoid harm.
 The dual trigger characterization suggests that the
precautionary principle has
 three important components:
 • Threat of harm
 • Uncertainty of impact and causality
 • Precautionary response
Issues Involved in Application of
Precautionary Principle

52.
 what level of scientific evidence is required to trigger
application of the precautionary principle? Under the Rio
Declaration’s formulation, the threshold for triggering the
principle appears to be the existence of identifiable threats of
serious or irreversible damage
 What counts as a threat of harm? Is any potential harm, no
matter how small, sufficient to trigger the precautionary
principle?
 • How does uncertainty figure into this? Is any level of
uncertainty sufficient to trigger the principle, or only a high
level? Is there any level of uncertainty which would be so great
that the principle would be unreasonable?
 • What counts as a precautionary measure? Crossing one’s
fingers? Warning people of the threat? Taking measures to
reduce impact of the effects?
Problems Elaborated

53.
 Ultraconservative Precautionary Principle
(UCPP): Ban any activity that one has any reason
whatsoever to suspect might pose any harm
whatsoever.
 Ultraminimal Precautionary Principle (UMPP):
We accept the need to act in a precautionary manner
in exactly one case: we should cross our fingers (or just
worry) in the situation where there is a probability of
99.9% that the world is going to end immediately due
to this experiment.
Theoretical Approaches To solving
this problems

54.
 RIO Principle 15, suggests that policy actions should
 be ‘‘cost-effective’’ in preventing environmental damage. Thus,
the principle offers governments wide flexibility in selecting
appropriate policy measures once taking some measures is
deemed appropriate. In most instances, the precautionary
principle has been used to allow or authorize, but not to require,
policy measures. In some instances, proposed activities are
simply delayed until further scientific evidence
 Application problem
 Convention on Biological Diversity–has a more abstract
definition Article 6, uses such formulas as “in accordance with its
particular conditions and capabilities” and “as far as possible and
as appropriate
 These approaches clearly suggests a lack of concensus
Approaches in Int Documents

55.
 European Union argues that the precautionary
principle is a part of customary international law. The
United States insists that the precautionary principle
has no legal status, but is only an ‘‘approach’’ that
can be used in certain narrow circumstances.
Controversy Over precautionary
Principle between EU and USA

56.
 Europe invoked the precautionary principle as a
justification for its decision to regulate genetically
modified organisms (GMOs) in food, even in the
admitted absence of scientific evidence that GMOs are
harmful to human health or the environment. The
United States argued that the EU’s actions were not
scientifically based as required under the WTO rules.
The EU, in turn, argued that environmental policy
should be ‘‘based on the precautionary principle.’’
Case on GMO and Precautionary
Principe

57.
 In EC Measures Concerning Meat and Meat Products (Hormones) (Beef Hormones)
 Canada, in the EC Hormones case, took a middle position between the EC and the US.
On the one hand, Canada declared that the “precautionary approach” is “an emerging
principle of law” which may crystallize in the future into one of the “general principles of
law recognized by civilized nations” within the meaning of Article 38(1)(c) of the Statute
of the International Court of Justice.
 On the other hand, Canada agreed that the precautionary principle has not yet been
incorporated into the corpus of public international law.
 WTO did not need to declare on the precautionary principle’s customary international
law status. It determined that an EC ban on the import of US beef treated with artificial
growth hormones could not be justified by application of the precautionary principle.
The particular risk in question could not be established with sufficient specificity as it
was not clearly scientifically proven: there was not a “rational relationship between the
trade measure and the risk assessment.”
EC Measures Concerning Meat and
Meat Products (Hormones)

58.
 In MOX Plant (Ireland v United Kingdom), Provisional Measures (MOX
Plant case)
 Facts ITLOS considered protection of the Irish Sea from radioactive pollution
from a proposed power plant on the English coast. Ireland claimed that the
activities of the power plant required proper assessment of environmental
effects of the plant’s operations in accordance with the precautionary principle
as espoused by the Rio Declaration.
 The ITLOS denied Ireland’s request for provisional measures as it did not agree
there was any urgency in the matter and implicitly rejected Ireland’s
claim that the precautionary principle was applicable to the dispute.
 The case suggests that the precautionary principle, even though a legal
principle, is not incorporated into Part XII of the LOSC as it had not yet
crystallized into customary international law. (Judge Wolfrum )
Precautionary Principle under Law
of Sea Convention

59.
 There is significant debate as to whether precaution is a principle overarching
all policy and decision-making or whether it is merely an approach to be
utilized in cases of hazardous or ultra-hazardous activities..
 In Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan; Australia
and New Zealand v Japan) (Southern Bluefin Tuna cases) Australia and New
Zealand claimed that Japan was in violation of its duty to protect and preserve
an optimal level of exploitation of southern bluefin tuna thus failing to satisfy a
precautionary obligation under the LOSC.
 Judge Laing stated that “adopting an approach, rather than a principle imports
a certain degree of flexibility and tends, though not dispositevely, to
underscore reticence about making premature pronouncements about
desirable normative structures”. Judge also associates the term “principle” with
legally binding, customary status.
Precautionary Principle or
Approach

60.
 This tendency of the ICJ to rely on the precautionary principle as
a rule of customary law remains still. In 2008, the ICJ received an
application from the state of Ecuador.
 Facts Ecuador complained about the aerial spraying of coca and
poppy crops with chemical herbicides carried out by Colombia at
locations near, at and across its border with Ecuador. Ecuador
claimed that toxic herbicides have caused damage to human
health, property and the environment, and therefore Colombia
has violated principle of precaution and prevention of Ecuador’s
rights under customary and conventional international law:
 Such a reference to the precautionary principle as a rule of
customary law and current developments in international law
could indicate that in this case the ICJ might express its attitude
towards the status of this principle.
ICJ and Precautionary Principle

61.
 In 2005, the principle was incorporated into the
Preamble of the Constitution of France and is now part
of the “Environmental charter” of the Constitution the
precautionary principle is treated as a constitutional ,
which claims to be on the same level as the principles
of the Declaration of the Rights of Man and the
Citizen.
State practice

62.
 principle should be, inter alia:
 proportional to the chosen level of protection,
 non-discriminatory in their application,
 consistent with similar measures already taken,
 based on an examination of the potential benefits and costs
of action or
 lack of action (including, where appropriate and feasible,
an economic cost/benefit analysis),
 subject to review, in the light of new scientific data, and
capable of assigning responsibility for producing the
scientific evidence necessary for a more comprehensive risk
assessment.
EU Guideline son Precautionary
Principle in support of
Precautionary

63.
 So intense is the controversy in the United States, that the
precautionary
 principle may be the first and only international environmental
principle to warrant its own advertisement in the New York Times.
Exxon Mobil
 Unbalanced Caution, On the face of it, this is a reasonable principle.
Business and government share a common goal to exercise appropriate
caution to ensure that new products and business operations do not
pose unwarranted risks to public health or the environment. Where
risks to public health or the environment exist, cost-effective steps to
manage and reduce these risks should be taken.
 Enormous benefits come from scientific research, innovative
technology and new developments. That is why governments must
avoid the utopian pursuit of a risk-free world and, instead, exercise
common sense in applying the precautionary principle. Above all, we
should rely on science-based risk assessment and management,
Arguments against Precautionary
Principle USA

64.
PolluterPaysPrinciple:
 The Polluter Pays Principle was first conceptualized by the
Organisation for Economic Co-operation and Development
(OECD) nations in their economic policy for environmental
harm in the 1970s.
It was the responsibility of the polluters of environment
to pay for remedial measures and to keep the
environment unharmed.
 This was done through internalization of environmental harm
by the imposition of green taxes or, if an environmental harm
occurred, then wrongdoer had to pay damages.
 However, this principle failed to gain the status of a legal norm
due to the limited membership of countries in OECD.
 Liability can be seen as a mechanism implementing the PPP.
The concept has evolved to embrace liability
 Rio Declaration, Principle 16
 POP Convention, Preamble

65.
7. Principle of Common But Differentiated
Responsibility
 Recognition of the special needs of developing countries
 Requires all concerned states to participate in international
response measures according to historical responsibilities
 As one practical consequence of their greater responsibilities and
opportunities, developed countries have pledged to assist
developing countries in making the shift toward sustainable
development.
 Virtually allmajor environmental treaties in recent years have
included important provisions providing financing, technical
assistance, or technology transfers to developing countries. New
funding mechanisms, such as the Global Environment Facility
and the Montreal Protocol Multilateral Fund, have been
established to assist developing countries

66.
THE GENERAL DUTY TO PREVENT
ENVIRONMENTAL HARM
 It is a widely accepted principle of international environmental law that
States are required to ensure that activities within their jurisdiction or
control do not damage the environment of other states or the
commons.
 Principle 21 of the Stockholm Declaration Principle 2 of the Rio
Declaration) states:
 States have, in accordance with the Charter of the United Nations and
the principles of international law, ... the responsibility to ensure
that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of
national jurisdiction.
 This principle is often associated with the Trail Smelter Arbitration.

67.
THE DUTY TO COOPERATE
 Much of international environmental law relates to a
general obligation of States to cooperate in
investigating, identifying, and avoiding environmental
harms. Within the obligation to cooperate are more
specific duties relating, for example, to the exchange of
information, the need to notify and consult with
potentially affected States, and the requirement to
coordinate international scientific research.
 Virtually every international environmental treaty has
general provisionsrequiring cooperation in generating
and exchanging relevant information.

68.
PRIOR INFORMED CONSENT
 When one State wants to act in the territory of another
State, simple notification and consultation has not
been deemed sufficient; most treaties now require the
acting State to obtain the other State's prior informed
consent.
 Basel Convention
 Cartagena Protocol

69.
NOTIFICATION IN THE CASE OF AN
EMERGENCY
 One of the most important aspects of international
cooperation in the environmental sphere is the
obligation to notify affected parties in the case of an
emergency that has trans boundary effects.
 Stockcholm and Rio Rio Declaration
 States shall immediately notify other States of any
natural disasters or other emergencies that are likely
to produce sudden harmful effects on the environment
of those States.

70.
PRINCIPLE OF EMERGENCY
ASSISTANCE
 Although there is not yet an affirmative obligation to
provide emergency assistance the importance of
mutual assistance in emergencies has been frequently
reiterated in international legal instruments.

71.
ENVIRONMENTAL IMPACT
ASSESSMENT
 Many international instruments, international institutions
and over sixty countries now require some form of
environmental impact assessment(EIA).
 EIA is a process for examining, analyzing and assessing
proposed activities in order to maximize the potential for
environmentally sound and sustainable development.
 The EIA process is designed to ensure that (i) the
appropriate government authorities have fully identified
and considered the environmental effects of proposed
activities, as well as alternatives that avoid or mitigate the
environmental effects,

72.
TRANSPARENCY, PUBLIC PARTICIPATION AND
ACCESS TO INFORMATION AND REMEDIES
 Transparency and access to information important to public participation
 Right to know what decisions are being contemplated, the factual basis
proposed and accomplished governmental action, etc.
 Right to appropriate, comprehensible and timely information
 Public participation is essential to good governance – responsive, transparent
and accountability
 Empowerment: access to effective judicial and administrative proceedings
 Rio Declaration, Principle 10
 UNFCC, Article 4
 UNCCD, Article 3
 CBD , Articles 13, 14

73.
Conclusion
 The growing understanding of the planet's ecological
constraints has led to the rapid development of
international environmental law.
 International law of sustainable development and
environmental protection has emerged as a major area
of international law and policymaking.
 Recognizing and understanding the international
environmental principles discussed here is a first step
in effectively reconciling the goals, policies and
principles of environmental protection and economic
growth..

74.
Think global, act local