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TEXT 5. KEY PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
Environmental law is shaped by a number of key principles. Some of the major ones (most referring exclusively to international environmental law) are described below.
Three key principles of general applicability are:
1. The Precautionary Principle. The precautionary principle is the idea that if the consequences of an action are unknown, but are judged to have some potential for major or irreversible negative consequences, then it is better to avoid that action. The principle can be applied in an active sense, through the concept of "preventative anticipation," or a willingness to take action in advance of scientific proof of the need for the proposed action on the grounds that further delay will prove ultimately most costly to society and nature, and, in the longer term, selfish and unfair to future generations. In practice, the principle is most often applied in the context of the impact of human civilization or new technology on the environment, as the environment is a complex system where the consequences of some kinds of actions are often unpredictable.
2. Sustainable development. Sustainable development is a process of developing land, cities, businesses, communities, and so forth that "meets the needs of the present without compromising the ability of future generations to meet their own needs" (according to the Brundtland Report, a 1987 report from the United Nations). One of the factors that it must overcome is environmental degradation, but it must do so while not forgoing the needs of economic development as well as social equity and justice.
3. Polluter pays principle. The polluter pays principle is the idea that the entity that pollutes the natural environment pays for its cleanup and consequences. It is regarded as a regional custom because of the strong support it has received in most countries of the Organisation for Economic Co-operation and Development (OECD) and the European Community (EC). International environmental law itself mentions little about the principle, but an example of it can be found in the preamble of the Convention on the Transboundary Effects of Industrial Accidents (See: Convention on the Transboundary Effects of Industrial Accidents, Helsinki, March 17, 1992)
More specific principles, rights, and duties of international environmental law include:
· The Principle to Not Cause Harm. This principle developed from the Corfu Channel Case where it established that nations have an obligation to not take actions or create circumstances that will harm other nations.
· The Principle of State Responsibility. This principle is based on the concept that states have liability for damage to other states that they may cause.
· The Principle of Intergenerational Equity. This principle is referred to in a number of treaties such as the Convention on Biological Diversity and further proposed in refinement by environmental scholars. It basically holds that the natural resources are the common property of all the people of a nation, including future generations, and all (including future generations) have a right to the benefits of those resources. The state is responsible to see that they are properly conserved for that purpose.
· Principle of Differentiated Responsibilities. This concept is found in the Climate Change Convention Article 3. The concept provides for those with more resources to take more responsibility than those with less capability.
· Exclusive Economic Zone. This principle provides for all States to have an exclusive economic zone that they will govern up to 200 miles in the ocean from their land border. This zone is to be managed with environmental sensitivity to other States. Provisions for this law are found in the U.N. Law of the Sea Convention. (Exclusive Economic Zone)
· Right to Development. This principle calls for each State to have the right to development as an inalienable right and a right of self determination as stated in the Declaration on the Right to Development.
· Common Heritage of Humankind. The Moon Treaty provides that exploration and the use of the moon shall be available for all humankind as a common heritage.
· Duty to Assess Environmental Impacts. This principle has applied to World Heritage sites and has been developed within individual countries such as the United States National Environmental Policy Act (NEPA) and the Australian Environment Protection and Biodiversity Act. The basic concept is to assess potential impacts before actions are taken that may adversely affect the environment.
· Principle of the Duty to Cooperate. This principle requires nations to cooperate in addressing environmental issues. This is both part of the U.N. Charter Article 1.3 and is also found in the Moon Treaty as well.
· The Principe for Equal Right to Access Justice. This principle provides anyone injured from another’s damage to the environment the right to bring an action for justice to an appropriate court. This principle is found in the Nordic Environmental Protection Convention.
There have been many important cases in the area of international environmental law, including the various nuclear testing cases, such as between New Zealand and France before the International Court of Justice.