> E.g.

, if there is a machine that produces meat and milk after feeding on fodder, is there
any reason for humanity to keep cattle?

Chapter Two

BASIC PRINCIPLES OF ENVIRONMENTAL LAW

❖ This chapter describes the general principles and rules of international

environmental law as reflected in: treaties, binding acts of international
organisations, state practice, and soft law commitments.

Q) What distinguish principle from rules?

❖ These principles are general in the sense that they are potentially applicable to all
members of the international community across the range of activities which they
carry out or authorise and in respect of the protection of all aspects of the
environment.
❖ From the large body of international agreements and other acts, it is possible to
discern general rules and principles which have broad, if not necessarily universal,
support and are frequently endorsed in practice.
❖ N.B --It has to be also noted that it in the absence of judicial authority and in view of
conflicting interpretation under state practice it is frequently difficult to establish the
parameters or the precise international legal status of each general principle or rule.
❖ The application of each principle in relation to a particular activity or incident, and
its consequences, must be considered on the facts and circumstances of each case,
having regard to several factors including: the source of the principle; its textual
content and language; the particular activity at issue; the environmental and
other consequences of the activity; and the circumstances in which it occurs
❖ For example, while some principles reflect customary law, others may reflect
emerging legal obligation with less developed status.

These Principles are;

A) Sovereignty over Natural Resources and the responsibility not to cause damage to
the environment of other states
Sovereignty over Natural Resources
o Before 1970’s this principle was called a principle of permanent Soverenity
over natural resources. This has been envisaged under the 1933 London
convention which sates, all animal trophies were ‘the property of the Government
of the territory concerned
o The 1971 Ramsar Convention Article 2(3) emphasised that the inclusion of
national wetland sites in its List of Wetlands did ‘not prejudice the exclusive
sovereign rights of . . . the party in whose territory the wetland is situated o
The 1983 International Tropical Timber Agreement Art. 1 recalled ‘the
sovereignty of producing members over their natural resources o states have
o Article 15(1) of biodiversity convention recognizes sovereign rights...over their
natural resources’, and that ‘the authority to determine access to genetic
resources rests with the national governments and is subject to national
legislation

o Eg. of cases the 1893 Fur Seals Arbitration Responsibility not to cause

environmental damage
> reflects the view of states that they are subject to environmental limits in the
exercise of their rights under the principle of permanent sovereignty over
natural resources
> Under Article 193 of UNCLOS, states have the sovereign right to exploit their
natural resources pursuant to their environmental policies and in accordance
with their duty to protect and preserve the marine environment.
> Article 194(2) of the same convention state that state shall take all measures
necessary to ensure that activities under their jurisdiction or control are so
conducted as not to cause damage by pollution to other states and their
environment
> The 1963 Nuclear Test Ban Treaty prohibits nuclear tests if the explosion would
cause radioactive debris ‘to be present outside the territorial limits of the state
under whose jurisdiction or control such explosion is conducted
> It can be said that 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
> Some scholars argue that it has attained international customary law status.
Cases
 Trial smelter case

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 properties or persons therein, when the case
is of serious consequence and the injury is established by clear and convincing
evidence.
Lac Lanoux Arbitration

France [the upstream state] is entitled to exercise her rights; she cannot
ignore the Spanish interests. Spain [the downstream state] is entitled to
demand that her rights be respected and that her interests be taken into
consideration
> ICJ in its advisory opinion on the legality of the threat or use of nuclear weapon
stated that The existence of the general obligation of States to ensure that
activities within their jurisdiction and control respect the environment of
other States or of areas beyond national control is now part of the corpus of
international law relating to the environment.

Q. what do you think about the legal status of this

principle? Has it attained customary international law
principle?

B) Principle of Preventive Action

❖ It mainly require the prevention of damage to the environment, and otherwise

to reduce, limit or control activities which might cause or risk such damage
❖ Experience and scientific expertise demonstrate that it must be the golden rule for
environmental protection for ecological and economic reasons.
❖ It is also called prevention principle
❖ The preventive principle requires action to be taken at an early stage and, if
possible, before damage has actually occurred.
❖ It is no longer primarily a question of repairing damage after it has occurred
 ❖ it prohibits activity which causes or may cause damage to the environment in
violation of the standards established under the rules of international law
❖ is supported by an extensive body of domestic environmental protection
legislation such as; access to environmental information, and the need to carry
out EIA in relation to the conduct of certain proposed activities
❖ it is also directly or indirectly endorsed by many international instruments
including, Stockholm Declaration, the 1982 World Charter, the 1992 Rio
Declaration (principle 11) , under many conventions so as to prevent,
❖ the extinction of species of flora and fauna;
❖ the introduction and spread of pests and diseases;
❖ pollution of the seas by oil, radioactive waste,
❖ hazardous waste and substances,
air pollution, river pollution; radioactive pollution of the atmosphere cases......

❖ The preventive principle is implicitly supported in relation to transboundary

resources by the awards in the Trail Smelter case and the Lac Lanoux
Arbitration.
❖ In the Gabcikovo-Nagymaros case, the ICJ noted that it was ‘mindful that, in the
field of environmental protection, vigilance and prevention are required on
account of the often irreversible character of damage to the environment and of
the limitations inherent in the very mechanism of reparation of this type of damage

C) The Principle of Co-operation

• the principle is reflected in many treaties and other international acts, and is
supported also by state practice, particularly in relation to hazardous
activities and emergencies
• See Principle 24 of Stockholm Declaration and Principle 27 of Rio declaration
• Eg. ‘States and people shall co-operate in good faith and in a spirit of
partnership in the fulfilment of the principles embodied in this Declaration
• The obligation to co-operate is affirmed in virtually all international
environmental agreements of bilateral and regional application, and global
instruments
 D) The Principle of Sustainable Development

❖ State practice suggest that it has been in practice since 1893 when the United
States asserted a right to ensure the legitimate and proper use of seals and to
protect them, for the benefit of mankind, from wanton destruction
❖ The original articulation of the principle is found in the Brundtland Report,
which stated that sustainable development means development that satisfies
the needs of present generations without jeopardizing the ability of future
generations to meet their own needs
❖ In the WSSD, sustainable development was further articulated as having three
pillars, namely: economic development, social development, and
environmental protection.
❖ Controversial principle --developed countries and their NGOs have used the
principle to underline the importance of environmental values, whereas
developing countries have used the principle to buttress their right to
development.
❖ However, the principle has assisted in reconciling in one phrase what before
seemed irreconcilable - namely, environmental protection and development

Four recurring elements appear to comprise the legal elements of the concept of ‘sustainable
development’, as reflected in international agreements:

> The principle of intergenerational equity - the need to preserve natural resources for
the benefit of future generations
the responsibility of the current generation towards the future generation is well sated
in many conventions, declarations, resolutions. Eg;
-Principle 1 of Stockholm Declaration
- Principle 4 of Rio
- UN General Assembly Resolution 35/8 of 1980
ICJ decisions
'in its Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, the
ICJ recognized that ‘the environment is not an abstraction but represents the
living space, the quality of life and the very health of human beings, including
generations unborn’
> the principle of sustainable use

^ the aim of exploiting natural resources in a manner which is ‘sustainable’, or

‘prudent’, or ‘rational’, or ‘wise’ or ‘appropriate’
^ is very significance in that it recognises limits placed by international law on the
rate of use or manner of exploitation of natural resources, including those
which are shared or are in areas beyond national jurisdiction.

^ focuses on the adoption of standards governing the rate of use or exploitation of

specific natural resources rather than on their preservation for future
generations
^ Mainly invoked (but not limited) in marine living resources such as; tuna, fur
seal, salmon high sea fish, all natural resources
^ It is envisaged in
■ The 1968 African Nature Convention stated that the the
utilisation of all natural resources ‘must aim at satisfying the
needs of man according to the carrying capacity of the
environment
■ Sstocholm Declaration Principle 13 and 14
■ Climate Change Convention Art. 3(4)
■ The 1992 Biodiversity Convention preamble, article 1, 8,
12,16..
■ Bio safety protocol art. 1
> The principle of equitable use, or intragenerational equity
S It implies that use by one state must take account of the needs of other states
S How to allocate future responsibilities for environmental protection between
states which are at different levels of economic development, which have
contributed in different degrees to particular problems, and which have
different environmental and developmental needs and priorities.
It is stated under;
S RIO declaration principle 3
S Climate Change Convention
 S Biodiversity convention include the ‘fair and equitable’ sharing of the
benefits arising out of the use of genetic resource

> The Principle of integration

^ The need to ensure that environmental considerations are integrated into
economic and other development plans, programmes and projects, and that
development needs are taken into account in applying environmental
objectives
^ This element is the most important and the most legalistic
^ its formal application requires the collection and dissemination of
environmental information, and the conduct of EIA
^ it is only since UNCED that the relationship between environmental protection
and economic development has been more fully recognised by the
international community
^ Read principle of 3 Rio Declaration, with which Principle 4 must be read to be
fully understood, is part of the bargain struck between developed and
developing countries, which is also evident in the convoluted language of
Article 3(4) of the Climate Change Convention.
^ but, see also principle 13 of Stockholm declaration

❖ These four elements are closely related and often used in combination (and
frequently interchangeably), which suggests that they do not yet have a well-
established, or agreed, legal definition or status.
Some remarks about the status of sustainable development
❖ the Preamble to the WTO Agreement explicitly acknowledges ‘the objective of
sustainable development’, and characterises it as a concept which ‘has been
generally accepted as integrating economic and social development and
environmen-tal protection’
❖ In the Gabcikovo-Nagymaros case,( Slovakia and Hungary the ICJ invoked
'The risk of mankind for present and future generation and specifically
addressed the concept and stated that; This need to reconcile economic
development with protection of the environment is aptly expressed in the
concept of sustainable development.’
E) Precautionary Principle
• Began to reappear in international legal instruments in the mid-1980s
although prior to then it had featured as a principle in domestic legal
systems, most notably that of West Germany
• Mainly provide guidance where there is scientific uncertainty
• is based on the premise that action on environmental matters should be taken
even if there is a lack of total scientific certainty, often reversing the
burden of proof and placing it on those who claim that an activity is not
damaging
• Some action is better than inaction. When there is doubt about scientific
certainty JUST ERR ON THE SIDE OF THE ENVIRONMENT’
• Earlier traditional environmental agreements oblige parties to take action
only where there is scientific evidence that significant environmental
damage is occurring, and that in the absence of such evidence no action
would be required eg the 1974 Paris Convention of Maritime
Environment
• The principle is controversial because it advocates action despite the lack of
scientific certainty. Taking action under such conditions could be costly or,
even worse, could be proven wrong
• Principle 15 of the Rio Declaration, which provides that:
'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’
Some remarks about its status
• Some commentators view the principle as a guiding principle of
international environmental law, but others adopt a more cautionary
attitude
• The United States has taken a skeptical approach toward the precautionary
principle viewing it almost as a protectionist principle - a new nontariff
barrier to trade
• The European Union, at the other extreme, has transformed the principle
into a constitutional principle, favouring a strong version of the principle
as attaining customary international law.
 • International courts and tribunals have been reluctant to accept explicitly
that the principle has a customary international law status,
notwithstanding the preponderance of support in favour of that view, and
diminishing opposition to it.
F) Polluter-pays principle
O The “polluter pays” principle was originally enunciated by the
Organization for Economic Cooperation and Development
(OECD) to restrain national public authorities from subsidizing
the pollution control costs of private firms
O It establishes the requirement that the costs of pollution should be
borne by the person responsible for causing the pollution.
O The principle basically demands for the person who is in charge of
polluting activities to be financially responsible for the damage
s/he causes
O The meaning and application of the principle to particular case
and situation remains open to interpretation.
O It was enunciated clearly in the international arena in the Rio
Declaration
O Some commentators have underlined that the principle has merely
a rhetoric value because
O most polluters will be able to pass the costs of pollution onto
consumers. Also, in most cases, it is difficult to identify the
polluter
O It is doubtful whether it has achieved the status of a generally applicable
rule of customary international law.
O Some countries object the further application of the principle due to the
fact that it is more applicable under domestic law
O The conventions on civil liability for nuclear damage,
O the1960 Paris Convention and the1963 IAEA Liability Convention
were influenced by the desire to channel
compensation from those responsible for the activity causing
damage to the victims
G) Principle of common but differentiated responsibility
Arises out of ; --the application of equity in international law
--Special need of developing countries to develop O Read
Principle 7 of Rio
O Article 3(1) the1992 Climate Change Convention O Is made of
two element; Common responsibility of states to protect the
environment and Different responsibility due to the degree of
contribution and the ability to prevent, reduce and control threat
O Natural resources could be of a single state, shared or no
states. In which respect do you think common responsibility is
likely to apply?
O Eg. Outer space and moon -common province of mankind O
The resources of the seabed, ocean floor and subsoil are ‘the
common heritage of mankind Different responsibility
S Is widely accepted under many declaration, treaty and practice
of states
S Is based on special needs(eradicating poverty and
circumstances, future economic development of developing
countries, and historic contributions to causing an environmental
problem
See -Principle 23 of stocholm Principle 11 of Rio
Article 11 of The 1972 London

convention