Fundamental principles of International Environmental Law

Introduction:

The evolution of International Environmental Law has been profoundly shaped by a series of landmark international gatherings and cooperative efforts aimed at addressing the escalating environmental challenges facing our planet. Following the wake of the United Nations Stockholm Conference on the Human Environment in 1972, which heralded a nascent global awareness of environmental issues, the Rio Earth Summit of 1992 represented a watershed moment in the history of environmental governance. These pivotal events catalyzed a paradigm shift, culminating in the emergence of a robust legal framework designed to protect the environment and promote sustainable development on a global scale.

Building upon the foundation laid by the Stockholm Conference, which underscored the interconnectedness of environmental degradation and human well-being, the Rio Earth Summit, officially known as the United Nations Conference on Environment and Development (UNCED), marked a turning point in international cooperation for environmental conservation. The Rio Declaration on Environment and Development, adopted at the summit, enshrined key principles such as the precautionary approach, intergenerational equity, and the polluter pays principle, setting a new standard for environmental governance.

In the wake of these pivotal events, International Environmental Law has evolved to encompass a comprehensive set of agreements, conventions, and protocols that seek to safeguard the environment, mitigate climate change, and promote sustainable practices worldwide. From the establishment of the United Nations Framework Convention on Climate Change (UNFCCC) to the adoption of the Convention on Biological Diversity (CBD) and the Kyoto Protocol, international cooperation has been instrumental in shaping a legal landscape that transcends national boundaries in the protection of our shared planet.

Drawing inspiration from the principles articulated at the Stockholm Conference and the Rio Earth Summit, International Environmental Law continues to serve as a beacon of hope and a rallying point for global efforts to address pressing environmental challenges. By fostering collaboration, fostering innovation, and advocating for the responsible stewardship of our natural resources, this evolving legal framework stands as a testament to the collective resolve of nations to safeguard the environment for present and future generations.

Significance of Environmental Protection in India

The protection of the environment in India holds profound significance, resonating not only with the well-being of its citizens but also with the preservation of ecological balance and sustainability for future generations. Environmental protection is intricately tied to the fundamental rights enshrined in the Indian Constitution, particularly the right to a pollution-free environment under Article 21, which is considered intrinsic to the right to life.

The Supreme Court of India has consistently reaffirmed the importance of environmental protection in ensuring the basic rights and quality of life for all individuals. Access to unpolluted water, clean air, and a healthy environment is deemed fundamental, and the judiciary has played a pivotal role in upholding these rights through various decisions and directives.

Development of Environmental Law in India

The evolution of Environmental Law in India can be delineated into two distinct phases, pre-1972 and post-1972, with significant advancements occurring after the Stockholm Conference of 1972. Prior to this period, environmental protection in India relied on a patchwork of laws and regulations, with limited progress in the development of a comprehensive legal framework.

The Stockholm Declaration on the Human Environment, a product of the 1972 Stockholm Conference, catalyzed a paradigm shift in India’s approach to environmental governance. The conference raised global awareness on environmental issues, influencing policy decisions and spurring rapid enhancements in India’s environmental strategy.

The 42nd Amendment to the Indian Constitution introduced substantial changes, emphasizing shared responsibility between the state and its citizens for environmental protection. Articles 48-A and 51-A were incorporated, mandating the state to safeguard the environment, protect forests and wildlife, and imposing fundamental environmental duties on citizens.

Additionally, constitutional provisions such as Article 47, focusing on public health and living standards, and Article 21, guaranteeing the right to a pollution-free environment and access to clean air and water, underscore the interconnectedness of environmental protection with fundamental rights and state obligations.

In the 1980s, the Supreme Court of India emerged as a pivotal actor in safeguarding environmental rights through landmark judgments and directives, ensuring that every individual has the right to a clean and sustainable environment. This judicial activism has been instrumental in shaping the trajectory of environmental law in India, reinforcing the significance of environmental protection as a cornerstone of sustainable development and human well-being.

The fundamental principles of environmental law encompass a set of core beliefs and guidelines that underpin the legal framework for protecting the environment. These principles serve as the foundation for environmental regulations and policies at local, national, and international levels. Some of the key fundamental principles of environmental law include:

Principle of State Sovereignty

The principle of State Sovereignty in International Environmental Law underscores the autonomy of individual states to govern their territories without external interference, particularly concerning the management of natural resources and environmental policies. Each state is regarded as a coequal sovereign entity, possessing exclusive jurisdiction within its borders.

This principle, enshrined in international legal frameworks such as the Stockholm Declaration of 1972 and the Rio Declaration of 1992, acknowledges that states have the sovereign right to exploit their resources according to their environmental and development policies. However, this sovereignty is not without constraints, especially when environmental concerns transcend national boundaries.

While states retain the right to manage their resources, they are obligated to conduct their activities in a manner that does not harm the environment of other states. This concept, known as the Principle of Good Neighborliness, emphasizes the responsibility of states to prevent environmental damage beyond their borders.

The tension between the principle of State Sovereignty and the principle of environmental responsibility arises from the need to balance sovereign rights with global environmental protection. Although states have sovereignty over their resources, they are also accountable for ensuring environmental preservation and preventing harm to shared ecosystems.

The Rio Declaration of 1992 clarifies that while states have the sovereign right to exploit their resources, they also bear the responsibility to prevent environmental harm within their jurisdiction. This acknowledgment signifies that sovereign power is not absolute and must be exercised in harmony with environmental considerations.

In cases where environmental issues transcend national boundaries, such as in the high seas, the principle of responsibility takes precedence over sovereignty. States are urged to safeguard and preserve such areas as part of the common heritage of humanity, emphasizing the collective responsibility to protect global environmental resources.

Ultimately, the evolving landscape of international environmental law highlights the imperative of balancing state sovereignty with environmental stewardship, recognizing the interconnectedness of environmental challenges and the need for collaborative efforts to address them effectively.

The Principle of State Sovereignty, a cornerstone of international law, asserts the exclusive authority of states over their territories and resources. The evolution of this principle under key environmental declarations such as the Stockholm Declaration of 1972 and the Rio Declaration of 1992 reflects the growing recognition of the interconnectedness between state sovereignty and environmental protection.

Stockholm Declaration (1972):

• Recognition of Sovereign Rights: The Stockholm Declaration, emerging from the United Nations Conference on the Human Environment in 1972, affirmed the sovereign right of states to exploit their own resources in line with their environmental policies.
• Principle 21: Principle 21 of the Stockholm Declaration specifically acknowledged that states have the sovereign right to utilize their resources according to their environmental policies while ensuring the protection of the environment within their territories. This principle emphasized the importance of respecting state sovereignty in environmental matters.
• Limits to Sovereignty: The Stockholm Declaration also recognized that the exercise of state sovereignty over natural resources is not unlimited and is subject to constraints of an environmental nature. This acknowledgment laid the groundwork for balancing state sovereignty with environmental considerations.

Rio Declaration (1992):

• Expansion of Principles: The Rio Declaration, formulated at the United Nations Conference on Environment and Development in 1992, built upon the principles established in Stockholm and expanded the scope to include both environmental and development policies.
• Principle 2: Principle 2 of the Rio Declaration reiterated the sovereign right of states to exploit their resources in accordance with their own environmental and development policies. This principle reinforced the idea that state sovereignty is pivotal in determining environmental and developmental pathways.
• Responsibility and Constraints: The Rio Declaration further emphasized that while states enjoy sovereign rights over their resources, they also bear the responsibility to ensure that activities within their jurisdiction do not cause harm to the environment of other states or areas beyond national boundaries. This recognition highlighted the interconnected nature of environmental issues and the need for responsible governance.
• Common Heritage: The Rio Declaration underscored the concept of common heritage, especially in areas beyond national jurisdiction like the high seas. It emphasized the collective responsibility of states to protect and conserve these shared environmental resources for the benefit of all.

Principle of Good Neighborliness

The principle of good neighborliness in international environmental law emphasizes the duty of states to prevent environmental harm to neighboring states or areas beyond national jurisdiction. This principle is intertwined with the concept of international cooperation, which obliges states to refrain from activities that could infringe upon the rights of other states or damage their environment. The legal maxim “sic utere tuo et alienum non laedas” encapsulates this notion, advocating for responsible use of resources to avoid harm to others.

While existing legislation covers cooperation in various fields such as science and technology, international environmental law underscores the significance of cooperation specifically in environmental matters. This emphasis is crucial as current cooperation frameworks often have limitations, primarily focusing on areas like patents. The principle of good neighborliness and international cooperation offer several benefits, including facilitating prior notification and consultation between states. This allows for the sharing of essential environmental information, especially during emergencies like natural disasters.

The Principle of Good Neighborliness holds states accountable for not causing harm to the environment of other states or shared areas, establishing it as a fundamental principle of international law. The maxim “sic utere tuo ut alienum non laedas” encapsulates this duty, emphasizing that states should not permit actions within their territory that infringe upon the rights of other states.

Precedents like the Trail Smelter case have reinforced this principle, asserting that no state has the right to use its territory in a manner that causes significant harm to the environment of another state. Similarly, in the Lake Lanoux case, the French government’s proactive communication with the Spanish government regarding a proposed project exemplifies the principle of good neighborliness in action, showcasing a commitment to mutual welfare and cooperation.

The incorporation of the Principle of Good Neighborliness in international agreements like the Convention on Biological Diversity, as seen in Article 3, further solidifies its importance in fostering harmonious relations among states and promoting environmental stewardship on a global scale.

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

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, Precautionary Principle 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 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.