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CONCEPTS OF
INTERNATIONAL
ENVIRONMENTAL
LAW
I. Introduction
1.
2.
For
the
reasons
outlined
in
the
preceding paragraph, this chapter does
not address the question of whether a
particular principle is, in fact, binding
international law. In order to avoid
confusion in this respect, part III, below,
refers to principles and concepts jointly
as concepts unless referring to a
particular text, e.g. one of the Rio
Principles.
Some
scholars
believe
the
development
of
a
single
comprehensive
treaty
of
fundamental environmental norms
may be a future solution to counteract
fragmentation and provide clarity
about the legal status of various
principles.
Such
an
overarching
agreement may provide the legal
framework to support the further
integration of various aspects of
sustainable development, reinforcing
the consensus on basic legal norms
both nationally and internationally. It
could thus create a single set of
fundamental principles and concepts
to
guide
states,
international
organizations, NGOs and individuals.
It could consolidate and codify many
widely
accepted,
but
scattered,
principles and concepts contained in
non-binding texts on environment
and sustainable development and fill
in gaps in existing law. It could
also facilitate institutional and other
linkages among existing treaties and
their implementation, and be taken
into account in judicial and arbitral
decisions,
negotiations
of
new
international legal instruments, and
national law-making.
24
7. Prevention
8. Polluter Pays Principle
9. Access and Benefit Sharing
regarding Natural Resources
10.Common Heritage and Common
Concern of Humankind
11.Good Governance
1. Sustainable
Development,
Integration and
Interdependence
12. The
international
community
recognized sustainable development
as the overarching paradigm for
improving quality of life in 1992, at
UNCED.
Although
sustainable
development
is
susceptible
to
somewhat different definitions, the
most commonly accepted and cited
definition is that of the Brundtland
Commission
on
Environment and
Development, which stated in its 1987
Report, Our Common Future, that
sustainable
development
is
development that meets the needs of
the present without compromising the
ability of future generations to meet
their own needs. The parameters of
sustainable development are clarified in
Agenda 21 and the Rio Declaration,
both adopted at UNCED, and in
subsequent international regional and
national instruments.
13. Principle 4 of the Rio Declaration
provides:
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
25
states
that
Peace,
development
and
environmental
protection are interdependent and
indivisible. Principles 4 and 25 make
clear that policies and activities in
various
spheres,
including
environmental protection, must be
integrated
in
order
to
achieve
sustainable development. They also
make clear that the efforts to improve
environmental
law
are
wholly
consistent with the nature of the
biosphere, i.e. the concentric layers of
air, water and land on which life on
earth depends. Scientists increasingly
understand
the
fundamental
interdependence
of
the
various
elements of the biosphere, how
changes in one aspect can affect
others, and the essential roles that
nature plays with respect to human
activities and existence (e.g., purifying
water, pollinating plants, providing food,
providing recreation opportunities, and
controlling erosion and floods). In this
respect, international environmental
law mirrors the most fundamental
infrastructure of human society (i.e.,
the environment).
16. The
concept
of
integration
demonstrates
a
commitment
to
moving environmental considerations
and
objectives
to
the
core
of
international relations. For example,
environmental
considerations
are
increasingly a feature of international
economic policy and law: the Preamble
to the 1994 World Trade Organization
Agreement mentions both sustainable
development
and
environmental
protection, and there are numerous
regional
and
global
treaties
supporting
an
approach
that
integrates environment and economic
development, such as the 1992
Convention on
18. Environmental
Impact
Assessment
(EIA) has become one of the most
effective and practical tools to support
the
implementation
of
sustainable
development and its integrative aspects.
The great majority of countries in the
world have adopted informal guidelines
or mandatory regulations, applicable not
only to public projects but often also as
a direct obligation of citizens. In
addition, in many countries informal
procedures of impact assessment for
governmental
activities
have
been
developed. EIA is also widely accepted
as a mechanism for public participation
in planning processes and decisionmaking
and
a
tool
to
provide
information and data to the public
regarding projects and other activities.
19. Also necessary are approaches that take
into account long-term strategies and
Transboundary
Watercourses
and
International
Lakes,
the
1994
Desertification Convention and the
2001
Stockholm
Convention
on
Persistent Organic Pollutants (POPs),
among others. As noted above, the
Brundtland
Commissions
Report
defined sustainable development as
development that meets the needs of
the present without compromising the
ability of future generations to meet
their own needs; and it goes on to
identify
two
key
concepts
of
sustainable development. The first of
which is the concept of needs, in
particular the essential needs of the
worlds poor, to which overriding
priority should be given. Similarly,
Principle 3 of the 1992 Rio Declaration
states that The right to development
must be fulfilled so as to equitably
meet
developmental
and
environmental needs of present and
future generations; and Rio Principle 5
provides that All States and all people
shall cooperate in the essential task
of
eradicating
poverty
as
an
indispensable
requirement
for
sustainable development, in order to
decrease the disparities in standards of
living and better meet the needs of the
majority of the people of the world.
Paragraph 6
of the Copenhagen
Declaration, the first sentence of which
is
reproduced
above,
refers
in
subsequent sentences to Equitable
social
development
and
social
justice. The concept of equity is also
embodied in the United Nations
Millennium Goals (e.g. the Eradication
of Poverty) and Millennium Declaration
(e.g. paragraphs 6, 11 and 21).
21. Equity thus includes both intergenerational equity (i.e. the right of
future generations to enjoy a fair level
of the common patrimony) and intragenerational equity (i.e. the right of
all people within the current generation
to
fair
access
to
the
current
generations entitlement to the Earths
natural resources).
22. The present generation has a right to
use and enjoy the resources of the
Earth but is under an obligation to take
into account the long-term impact of
its activities and to sustain the resource
base and the global environment for
the benefit of future generations of
humankind. In this context, benefit
30. Transparency
and
access
to
information are essential to public
participation
and
sustainable
development, for example, in order to
allow the public to know what the
but
differentiated
The
developed
35. In responsibilities.
many countries, public
participation
countries are
acknowledge
the responsibility
rights
granted
through
that
they
bear
in
the
international
Environmental
Impact
Assessment
pursuit of sustainable development in
procedures
with
broad
public
view of the pressures their societies
participation or in various sectoral
laws
adapted
to
the
special
circumstances
of
each
sector.
Consultation with, and dissemination of
information to the public are important
objectives of EIAs. For example, article
16(3) of the 1986 Convention for the
Protection of the Natural Resources
and Environment of the South Pacific
Region requires that the information
gathered in the assessment be shared
with the public and affected parties. In
Africa,
the
Memorandum
of
Understanding (MOU) of October 22,
1998, between Kenya, Tanzania and
Uganda contains the agreement of the
three states to develop technical
guides
and
regulations
on
EIA
procedures, including enabling public
participation at all stages of the
process and to enact corresponding
legislation (article 14). This provision
was subsequently embodied in the
Treaty for East African Community by
the three states Kenya, Tanzania and
Uganda. As noted above, the 1992
CBD also requires appropriate public
participation
in
environmental
assessment in article 14(1)(a); and it
34. These
concepts
mean
that
international institutions, such as
international
financial
institutions,
should also implement open and
transparent
decisionmaking
procedures that are fully available to
public participation. Examples of this
include the World Bank Inspection
Panel,
which
provides
groups
affected by World Bank projects the
opportunity to
includes a notification and consultation
requirement in article 14(1)(c).
5. Cooperation, and Common but
Differentiated
Responsibilities
36. Principle 7 of the Rio Declaration
provides:
The
parties
should
take
precautionary measures to anticipate,
prevent or minimize the cause of
climate change and mitigate its
47. Other formulations also exist. One of
the most forceful is that in article 4(3)
(f) of the 1991 Bamako Convention on
the Ban of the Import into Africa and
the Control of their Transboundary
Movement
and
Management
of
Hazardous Wastes within Africa, which
requires parties to take action if there is
scientific uncertainty. Another example
can be found in the 1996 Protocol to
the London Convention, which states in
article 3(1): "In implementing this
Protocol, Contracting parties shall apply
a
precautionary
approach
to
environmental protection ... when there
is reason to believe that wastes or other
matter introduced in
the marine
environment are likely to cause harm
even when there is no conclusive
evidence to prove a causal relation
between inputs and their effects". Its
second
preambular
paragraph,
emphasizes the achievements, within
the
framework
of
the
London
Convention, especially the evolution
towards
approaches
based
on
precaution and prevention.
48. The 2000 Cartagena Biosafety Protocol
to the 1992 CBD is based upon the
precautionary approach. It is contained
in article 1 on the objective of the
Protocol which refers explicitly to Rio
Principle 15. Articles 10 and 11 contain
the key provisions regarding precaution.
Article 10(6) provides that lack of
scientific certainty due to insufficient
relevant information and knowledge
regarding the extent of the potential
adverse effects of Living Modified
Organisms (LMO) shall not prevent the
Party from taking a decision, as
appropriate with regard to the import of
the LMO in question..., in order to avoid
or minimize such potential adverse
effects.
Article
11
uses
similar
language. Thus, a country may reject
an import even in the absence of
scientific
certainty
that
it
will
potentially
cause
harm.
These
provisions
are
broader
than
Rio
Principle 15 because they do not refer
to serious or irreversible damage or
cost-effectiveness.
49. The 1995 Agreement on Fish Stocks
adopts the precautionary approach in
51. Concrete
application
of
the
precautionary approach can be found
in treaties for the management of
living
resources,
especially
those
concerning fishing. The 1995 United
Nations
Agreement
for
the
Implementation of the Provisions of the
United Nations Convention on the Law
of the Sea of 10 December 1982,
relating
to the Conservation and
Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks
declares that states shall apply the
precautionary approach (article 5(c)).
Article 6 adds that such application
includes
taking
a
precautionary
approach
widely
to
conservation,
management
and
exploitation
of
straddling fish stocks and highly
migratory fish stocks, inter alia, by
improving decision-making in
this
field,
by
taking
into
account
uncertainties relating to the size and
productivity
of
the
stocks,
by
developing
knowledge,
by
not
exceeding
reference
points,
by
enhanced
monitoring
and
by
adopting, if necessary, emergency
measures.
Similarly,
the
2000
Convention on the Conservation and
Management of Highly Migratory Fish
Stocks in the Western and Central
Pacific
Ocean
provides
that
the
Commission created by this instrument
shall apply the precautionary approach
(article 5(c)). EC Regulation 2371/2002
of December 2002 on the
The law cannot function in protection of
the environment unless a legal principle
is involved to meet this evidentiary
difficulty, and
environmental law has
responded with what has come to be
described as the precautionary principle a
principle which is gaining increasing
support as part of the international law of
the environment.
1992 Convention on
Biological
Diversity Article
8(j)
Contracting Parties shall:
"subject to its national legislation,
respect,
preserve
and
maintain
knowledge, innovations and practices of
indigenous
and
local
communities
embodying traditional lifestyles...and
promote their wider application with
the approval and involvement of the
holders of such knowledge, innovations
83. Good
governance
requires
full
respect for the principles of the
1992 Rio Declaration on Environment
and Development, including the full
participation of women in all levels of
decision- making. Achieving good
governance
is
essential
to
the
37