Principles in international environmental law April 30, 2014 Edmunds Broks

2 Principles of international environmental law Customary rules Principle of state sovereignty in using their own resources and preventing serious harm to others Principle of co-operation Precautionary principle ?

3 (Directing) principles of international environmental law Polluter-pays principle Principle of prevention Precautionary principle Principle of sustainable development (legal concept)  Principle of common, but differentiated responsibility Ecosystem approach – not a legal principle yet

4 Legal principle / legal rule Principles can also have legal consequences Principles as customary rules – violation may give rise to legal remedy Italy vs Venezuela Gentini “A rule” … is essentially practical, and moreover, binding... There are rules of art as there are rules of government, while principle expresses a general truth, which guides our action, serves as a theoretical basis for the various acts of our life, and the application of which to reality produces a given consequence … 4

5 Legal principle / legal rule Principles embody legal standards, but the standards they contain are more general than commitments and do not specify particular actions, unlike rules. Philippe Sands, Principles of International Environmental Law, 2003, p 233.

6 Emergence of legal principles Changing science Multitude of international legal instruments and actors Deterioration of the environment

7 Function of principles Filling legal gaps Providing orientation to law-making (e.g. New resolutions), policy implementation, court decisions Weighing of different interests Order norms, create coherence in the system Promote reforms May be used to prescribe adoption of specific measures

8 Characteristics of legal principles Flexibility High degree of abstraction --> ambiguity and disagreement about their content

9 How to use principles? Used together with more precise rules For example, the obligation of states to protect their marine environment, or the obligation to establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity. If stipulated in the preamble of the agreement, then as a tool for interpretation If stipulated in the regulatory text of the agreement, then the principle has legally binding effect

10 Preamble of CBD The Contracting Parties, Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components, Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere, Affirming that the conservation of biological diversity is a common concern of humankind, Reaffirming that States have sovereign rights over their own biological resources,

11 Specific measures Cooperation Environmental Impact Assessment (EIA) Notification Consultation Information exchange Monitoring and reporting Use of best available technology (BAT) Protected areas, bans, labelling, pre-market testing and research, withdrawal of an authorisation Environmental standards (fishing effort, concentrations of substances, etc.) …..

12 Polluter-pays principle The costs of pollution should be borne by the person responsible for causing the pollution Measures to apply the principle: - environmental taxes - civil liability / environmental liability Legally binding in 1992 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area Soft law in international environmental law Legal principle in EU law

13 Principle of prevention Obliges preventing damage to the environment, and to reduce, limit or control activities which might cause or risk such damage. Requires taking action at an early stage, before damage occurs – duty to anticipate harm Not only transboundary harm Due diligence (may be some exceptions) Significant harm

14 Precautionary principle 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. (Rio Declaration, principle 15) Better safe than sorry

15 Common but differentiated responsibility 2 aspects: common responsibility and differentiated responsibility Expresses the need to evaluate responsibility for the remediation or mitigation of environmental degradation based on both historical contribution to a given environmental problem and present capabilities

16 Sustainable development The Brundtland Commission 1987: “development that meets the needs of present without compromising the ability of future generations to meet their own needs,” the concept has been incorporated into many national and international laws and regulations.“ 4 aspects: Intergenerational equity Intragenerational equity Sustainable use of resources Integration of environmental and economic considerations Legal concept / policy goal

17 Ecosystem approach Not yet a legal principle, but management concept Convention on Biodiversity (CoP decision V/6)