BASIC PRINCIPLES OF ENVIRONMENTAL LAW By Abhishek Rana at Lexcliq

 

No Harm Principle

  • Classic example is Trail Smelter case (US v Canada)
  • In this case the tribunal said:

“ No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”

  • Principle 21 of Stockholm Declaration 1972-almost a parallel principle
  • Definition of No Harm Principle: The no-harm rule is a widely recognized principle of customary international law whereby a State is duty-bound to prevent, reduce and control the risk of environmental harm to other states.

Principle of Prevention

  • Further refinement of No Harm principle culminated into this principle.
  • This principle allows action to be taken to protect the environment at an early stage.
  • It is now not only a question of repairing damages after they have occurred, but to prevent those damages occurring at all. It means in short terms: it is better to prevent than repair.
  • Introduced in Article 21 of Stockholm Principle
  • Examples:
  1. Preamble to UNFCCC and CBD
  2. Article 206 of UNCLOS
  3. Article V (4) OF 1976 Convention on Conservation of Nature in the South Pacific
  4. Similar provision in Article 22 of 1997 UN Convention on Law of Non-Navigational Uses of International Water Resources

Principle of Precaution

  • The term has its origin in the ‘vorsogeprinzip’ introduced in a legislation in Germany.
  • The concept is that lack of scientific certainty about the actual or potential effect of an activity must not prevent states from taking appropriate measures.
  • Beyond this elementary content, legal implication of precaution is unsettled.
  • Examples:
  1. Referred in the Vienna Convention for Protection of Ozone in 1985
  2. Preamble of CBD
  3. Article 3.3 of UNFCCC-the parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse impacts

Cooperation, Notification and Consultation

  • Cooperation established in International Law.
  • Group of Experts Convened by CSD IN 1995 identified principles of international environmental law and distinguished between:
  1. A duty to cooperate in a spirit of global partnership
  2. Duty to cooperate in a transboundary concept

Environmental Impact Assessment

  • Origin- National Environment Policy Act of US in 1969.
  • This was adopted in many domestic legislation, treaties of regional and universal scope.

Environmental Impact Assessment (EIA) is a process of evaluating the likely environmental impacts of a proposed project or development, taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse.

  • UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making.
  • It aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-makers.
  • By using EIA both environmental and economic benefits can be achieved, such as reduced cost and time of project implementation and design, avoided treatment/clean-up costs and impacts of laws and regulations.

Strategic Environmental Assessment

  • Sadler and Verheem (1996) define Strategic Environmental Assessment (SEA) as the formalized, systematic and comprehensive process of identifying and evaluating the environmental consequences of proposed policies, plans or programmes to ensure that they are fully included and appropriately addressed at the earliest possible stage of decision-making on a par with economic and social considerations.
  • Since this early definition the field of SEA has rapidly developed and expanded, and the number of definitions of SEA has multiplied accordingly. SEA, by its nature, covers a wider range of activities or a wider area and often over a longer time span than the environmental impact assessment of projects
  • The Convention on Biodiversity (CBD 2002) adopted a working definition of SEA as: “a systematic and comprehensive process of identifying and evaluating the environmental consequences of proposed policies, plans or programmes to ensure that they are fully included and appropriately addressed at the earliest possible stage of decision making on a par with economic and social considerations” (COP 6 Decision VI/7)”.
  • The United Nations Environment Programme (UNEP 2002) recognises SEA as: “a formal process of systematic analysis of the environmental effects of development policies, plans, programmes and other proposed strategic actions”. This process extends the aims and principles of EIA upstream in the decision-making process, beyond the project level and when major alternatives are still open”.

 

The Polluter Pays Principle

The ‘polluter pays’ principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment. … This principle underpins most of the regulation of pollution affecting land, water and air.

Polluter Pays Principle seeks to internalize the cost of pollution or that the financial burden is borne by those who can caused it.
-Positive externality
-Negative externality
Cost of fighting the pollution should be reflected in the cost of goods in production or consumption.

PPP enshrined in Principle 16 of the Rio-Declaration: internalization of the cost of repair of pollution and by use of economic instruments.

The Principle of Participation

  • The principle of public participation holds that those who are affected by a decision have a right to be involved in the decision-making process. Public participation implies that the public’s contribution will influence the decision.
  • The duty of states to provide various channels of participation to group and individuals affected by some activity.
  • Aims to consider the interest of these stakeholders.
  • Principle 10 of Rio Declaration:
  1. Right to access environmental information (Aarhus Convention)
  2. Right to participate in decision making
  3. Right to judicial recourse if rights are denied

Sustainable Development

  • No concept of international environmental law has been used and abused more than the concept of sustainable development.
  • Sustainable development is defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” (Our Common Future 1987)
  • The 30-year journey of four World Summits from Stockholm to Nairobi to Rio and to Johannesburg has put the world on notice that achieving sustainable development in the twenty-first century is not an option but an imperative.

Public Trust Doctrine

  • The doctrineenjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
  • A land owner or lessee and a water right holder also have an obligation to use such resources in a manner as not to impair or diminish the people’s rights.
  • Case law: M C Mehta v Kamal Nath SC 1997
  • Case law: T N Godavarman v Union of India 2002 SC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Abhishek Rana at Lexcliq

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