International Environmental Law has developed ad hoc, so what holds it together?
International Environmental Law has developed mainly in response to incidents in which the economic activities of one nation cause environmental damage, injury to persons, and economic costs to another country.
Most international environmental legislation, treaties and principles post-date the creation of the United Nations in 1948, and the sources are a case-by-case mix of international law, treaties, customary rules, legal principles, judicial opinions, and decisions by international institutions and other bodies regarding disputes.
Despite this bewildering array of sources and conflicting interests, the laws and treaties in IEL are guided consistently by seven golden principles.
Specifically the right to exploit natural resources, with an obligation not to cause damage to the environment beyond the national borders.
This principle requires states to take actions to reduce, limit or control activities which might cause damage to the environment. Specifically, prevention is where consequences are scientifically certain and actions are taken ahead of the damage occurring. The Principle of Preventive Action relates only to protecting the environment by restricting actions within a state's own jurisdiction.
Article 74 of the UN Charter encourages the principle that reflects states' commitment that 'their policy in their metropolitan areas must be based on the general principle of good neighbourliness'. States should not exercise their rights in a way which infringes upon the rights of other states. This principle is reflected in many treaties, international acts and non-binding instruments, providing for instruments such as environmental impact assessments, and information exchange, consultation and notification.
Sustainable development is defined by the 1987 Brundtland Report as development that 'meets the needs of the present generation without compromising the ability of future generations to meet their own needs'. The principle of sustainable development encapsulates the dual requirement of economic planning not to exceed the capacities of the biosphere to provide resources, and to absorb wastes, while ensuring that overall living standards improve.
In answer to the apparent dichotomy that economic growth necessarily means depletion of resources, the Brundtland Report asserts that 'technology and social organisation can be both managed and improved to make way for a new era of economic growth'. There are four elements to sustainable development: inter-generational equity, sustainable use, equitable use, integration of environment and development.
Where there is uncertainty, the risk of irreversible damage to shared natural resources should be avoided by a precautionary approach. Lack of scientific proof should not be the reason for going ahead with potentially risky actions, where there are good grounds for concern.
Principle 15 of the 1992 Rio Declaration: '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 not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Article 191 EC Lisbon Treaty: "Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay."
Although there is no common formulation of the principle, there are three basic elements involved: 1. regulatory inaction threatens non-negligible harm, 2. significant scientific uncertainty on cause and effect relationships, 3. as a result, regulatory inaction is unjustified.
Those parties responsible for causing pollution should pay the consequential costs of that pollution.
This principle acknowledges the difference in responsibilities and capabilities between developed and developing nations. It asserts the common responsibility of all states for environmental protection, under consideration of each state's contribution to the environmental pollution, as well as ability to prevent, reduce or control such pollution.
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