SUBSTANTIVE PRINCIPLES OF INTERNATIONAL

ENVIRONMENTAL LAW
Global Commons
 Principle refers to the idea that certain areas and resources on Earth belong to all
humanity
 They should be preserved and managed collectively for present and future generations.
 These are the areas and resources over which no country has ownership or exclusive
rights
 All the nations are responsible to preserve, protect and manage these resources.
 The benefits arising out of these resource or areas should be shared fairly among all
nations and shall also be kept for the future generations
 Examples - The High Seas, Outer Space, Atmosphere, Antarctica and MOON.

INTERNATIONAL INSTRUMENTS ON GLOBAL COMMONS

1. United Nations Convention on the Law of the Sea (UNCLOS): Regulates the use of
the oceans and their resources, including the high seas and deep seabed. (defines the
maritime zone and promotes conservation)

2. Outer Space Treaty (1967): Prohibits national appropriation of outer space and
celestial bodies. (declares Outer space as the “province of all mankind”)

3. Antarctic Treaty System: Ensures Antarctica is used exclusively for peaceful purposes
and scientific research. (designates antarctica as “natural reserve”)

4. Paris Agreement (2015): Addresses climate change by regulating greenhouse gas

emissions, which affect the global atmosphere. (acknowledges atmosphere as a GC)

5. Convention on Biological Diversity (CBD): Promotes the conservation and

sustainable use. (Addresses the protection of ecosystems in global commons)
 FOREST AS A GLOBAL COMMON??
FOR AGAINST

 Forest acts as the lungs of the planet and  Classifying Forest as GC, would infringe

regulate the climate the national sovereignty of many nations

 The forest are being overexploited by the  Such classification would imply a top-down

sovereign nations leading to deforestation management, which would fail to

and increased greenhouse gases understand the situation at local level

 Therefore, we need to classify forest as GC,  Many developing countries rely on forest

so that we can do better in preserving forest resources, putting restrictions on the use of

 Having an international regulation on forest can hinder the growth of these

Forest as a GC, would enable us to come up countries.

with laws that prevent the overexploitation  International regulation will fail to

of forest by the nations. understand the needs of the local tribes

which rely hugely on the forest for their

sustenance.

 Supported by the Sovereign Rights over

Natural Resources principle

Case Study
Whaling in the Antarctic (Australia v. Japan; New Zealand intervening)
Issue - Australia challenged Japan's whaling program in the Antarctic Ocean, arguing that it
undermined the conservation of marine resources in a global commons area.
Court - The ICJ ruled that Japan's whaling program was not for scientific purposes as claimed
and ordered Japan to revoke existing permits. This case reinforced the principle that global
commons areas like the Antarctic Ocean must be managed sustainably.
SOVEREIGN RIGHTS OVER NATURAL RESOURCES
 refer to the principle that states have the exclusive authority to control, manage, and
exploit the natural resources within their territorial boundaries.
 States have the exclusive right to regulate the exploration, extraction, use, and
conservation of these resources.
 States have the permanent and inalienable right to control their natural resources.
 States can determine how their resources are used to promote economic development
and improve the welfare of their citizens.
 States must manage resources sustainably and prevent environmental harm, both within
and beyond their borders.
 Other states and external actors cannot interfere with a state's sovereign rights over
its resources.
 Principle 21 Stockholm Conference – states have sovereign right to exploit their own
resources pursuant to their own environmental policies
 Principle 2 Rio Declaration (1992) - states that countries have the sovereign right to
exploit their own resources but also a duty to not cause environmental damage beyond
their borders.
 UN General Assembly Resolution 1803 (1962) - Declares that states and peoples have
permanent sovereignty over their natural resources
 Article 3 CBD (1992): Reaffirms the sovereign rights of states over their natural
resources

Case Study

(Costa Rica v. Nicaragua) –

Issue - Costa Rica accused Nicaragua of violating its sovereignty by constructing a canal and
causing environmental harm

Court - The Court ruled that Nicaragua had violated Costa Rica's territorial sovereignty and
ordered reparations.
PREVENTIVE PRINCIPLES
Aimed at preventing environmental harm before it occurs rather than after it has damaged the
environment. (MITIGATING AND ADAPTING pe pel k aao)

Key principles –

1. Mitigating and Adaption – we should not only mitigate the damage which has been
done, but also focus on adaption to things that could harm environment in future.
2. Proactive Action - the principle requires states, organizations, and individuals to take
anticipatory measures, rather than waiting for damage to occur.
3. Environmental Impact Assessments – implementation of this principle is done
making assessments in project and policies that impact environment.
4. Duty of Care : States has a duty to ensure that their activities do not cause damage to
the environment of other states or areas beyond national jurisdiction

Int. Instru. On this principle

 Stockholm Declaration (1972): Principle 21 emphasizes the responsibility of states to

prevent harm to the environment beyond their borders.
 Rio Declaration (1992): Principle 15 incorporates the precautionary approach, which
is closely related to the preventive principle.
 Convention on Biological Diversity (CBD): Encourages preventive measures to
protect biodiversity.
 Montreal Protocol (1987): Aims to prevent ozone layer depletion by phasing out
ozone-depleting substances.

Case study - Argentina v. Uruguay, 2010

ISSUE - Argentina claimed that Uruguay authorized the construction of pulp mills on the River
Uruguay without proper consultation, leading to potential environmental harm, including water
pollution.

Court – The ICJ emphasized the obligation of states to conduct Environmental Impact
Assessments (EIAs) and to take preventive measures to avoid transboundary harm. The Court
ruled that Uruguay had violated procedural obligations (e.g., consultation) but found
insufficient evidence of actual environmental harm.
PRECAUTIONARY PRINCIPLE

The precautionary principle is a concept that advocates for proactive measures to prevent
environmental harm, when scientific uncertainty.

Key Aspects of the Precautionary Principle

1. Preventative Action: in cases of scientific uncertainty, measures should be taken to

prevent serious environmental harm.

2. Burden of Proof: The responsibility to prove that an activity is not harmful falls on the
party undertaking it.

3. Scientific Uncertainty: Lack of complete scientific knowledge should not be used as

a reason to delay protective measures.

4. Cost-Effective Measures: Preventative actions should be proportionate to potential

risks and economic feasibility.

Recognition in International Environmental Law

1. Rio Declaration (1992): Principle 15 incorporates the precautionary approach, which is

closely related to the preventive principle

2. Cartagena Protocol on Biosafety (2000) = Applies the precautionary principle to

genetically modified organisms (GMOs),

3. Stockholm Convention (2001) - Encourages precautionary approaches to control harmful

chemicals that pose long-term environmental and health risks.

4. Convention on Climate Change (UNFCCC, 1992) = Emphasizes precaution in addressing

climate change, requiring countries to take action despite uncertainties in climate science.

ICJ Cases Applying the Precautionary Principle

1. Pulp Mills on the River Uruguay Case Argentina v. Uruguay, 2010

 The ICJ emphasized the need for Environmental Impact Assessments (EIA) as a
precautionary measure to prevent transboundary pollution.
SUSTAINABLE DEVELOPMENT: INTERGENERATIONAL AND
INTRAGENERATIONAL EQUITY

SD is a guiding principle in IEL that seeks to balance economic growth, social development,
and environmental protection.

It is rooted in the idea of meeting the needs of the present without compromising the ability of
future generations.

Intergenerational Equity

It refers to fairness between present and future generations.

 Intergenerational equity refers to the ethical principle that present generations have a
responsibility to ensure that future generations inherit a healthy and sustainable
environment.

It envisages conserving and protecting environment for future generation.

 Example: Paris Agreement (2015) aims to limit global warming to protect future
generations from the impact of climate change.

Intragenerational Equity

Intragenerational equity focuses on fairness among people within the same generation, in terms
of :-

 access to resources, economic opportunities, and environmental quality.

 It addresses issues of social justice and economic disparity, ensuring that all people
have equal access to natural resources
 Example: The Montreal Protocol (1987) phased out ozone-depleting substances based
on the precautionary principle, even before the full extent of ozone layer damage was
understood.

Key International Instruments

1. Brundtland Report (1987): Introduced the concept of sustainable development,

emphasizing intergenerational equity.

2. Rio Declaration (1992):

o Principle 3: Highlights intergenerational equity.

 o Principle 7: Emphasizes common but differentiated responsibilities
(intragenerational equity).

o Principle 15: Codifies the Precautionary Principle.

Case Study –

(Hungary v. Slovakia, 1997)

ISSUE - The case involved a dispute over a joint dam project on the Danube River. Hungary
argued that the project would cause significant environmental harm, while Slovakia
emphasized the economic benefits.

Court - The ICJ explicitly recognized the concept of sustainable development, stating that
economic development and environmental protection must be balanced. The Court emphasized
the need to consider the needs of both present and future generations.

Precautionary Principle in the Context of Intergenerational and Intragenerational

Equity???

Intergenerational Equity Intragenerational Equity

1. Intergenerational equity emphasizes the duty of 1. Intragenerational equity ensures fairness in
the present generation to preserve resources for resource use and environmental protection within
future generations. the present generation, particularly between
2. The precautionary principle plays a crucial role in developed and developing nations.
this by requiring decision-makers to act 2. The precautionary principle supports this by
proactively, to prevent long-term environmental preventing environmental degradation that
damage. disproportionately affects marginalized and
Examples: vulnerable communities.
3. Climate Change: The Precautionary Principle Example:
underpins global efforts to reduce greenhouse gas 3. Toxic Waste Dumping: The Precautionary
emissions, this protects future generations from Principle is used to prevent the export of
the worst effects of global warming. hazardous waste to developing countries,
4. Biodiversity Conservation: The principle is used protecting vulnerable populations from harm.
to justify measures to protect endangered species 4. Air and Water Pollution: Measures to reduce
and ecosystems, ensuring that future generations pollution in industrial areas often prioritize
can enjoy the benefits of biodiversity. communities that are disproportionately affected,
ensuring equitable protection.
POLLUTERS PAYS PRINCIPLE

The Polluter Pays Principle (PPP) is a concept that holds those responsible for pollution
should bear the costs of preventing, controlling, and remediating environmental damage

Key Features – CREP

 Cost Internalization: Environmental costs are included in the polluter's expenses,

rather than being externalized to society.

 Responsibility: Polluters are held accountable for the environmental damage they
cause.

 Economic Incentive: The principle encourages polluters to adopt cleaner technologies

and practices to avoid costs.

 Prevention & Remediation: Polluters must take responsibility for both preventing and
cleaning up pollution.

International Instruments –

1. The Polluter Pays Principle was first formally introduced by the Organisation for
Economic Co-operation and Development (OECD) in 1972.
2. Principle 16: Rio Declaration on Environment and Development (1992) - states the
polluter should, in principle, bear the cost of pollution
3. Kyoto Protocol (1997): polluters must pay for their greenhouse gas emissions
4. Basel Convention : Requires polluters to take responsibility for the safe disposal of
hazardous wastes.

Case Studies

1. Exxon Valdez Oil Spill (1989):

Issue - The Exxon Valdez oil tanker spilled approximately 11 million gallons of crude oil into
the ocean, causing extensive environmental damage

Court - Exxon was held financially responsible for the cleanup and damages caused by the oil
spill in Alaska, illustrating the application of the PPP.
COMMON BUT DIFFERENTIATED RESPONSIBILITIES (CBDR)

It is a concept which holds that all states share a to address global

environmental challenges, but recognizes that their contributions should be differentiated based
on their historical contributions to environmental problems, economic capabilities, and
development needs.

Key Features – GEFS

1. Global Cooperation: Encourages collaboration between developed and developing

countries to achieve common environmental goals.

2. Equity and Fairness: Ensures that the burden of addressing environmental challenges
is shared fairly, considering historical and economic disparities.

3. Flexibility: Allows for tailored approaches based on countries' specific circumstances

and capabilities.

4. Sustainable Development: Balances environmental protection with the development

needs of poorer countries.

International instruments

1. Rio Declaration (1992) - Principle 7: states that developed countries bear a greater
responsibility due to their historical contributions to environmental degradation.

2. United Nations Framework Convention on Climate Change (UNFCCC, 1992) Article

3.1: developed countries to take the lead in combating climate change and supporting
developing countries financially and technologically.

3. Kyoto Protocol (1997) Annex I Countries: Assigns binding emission reduction targets to
developed countries, while developing countries have no such obligations.

4. Paris Agreement (2015) Article 2.2: Reaffirms CBDR, allowing all countries to set their
own Nationally Determined Contributions (NDCs) but emphasizing support for developing
countries.

5. Convention on Biological Diversity (CBD, 1992) - Recognizes the need for developed
countries to support developing countries in biodiversity conservation and sustainable use.