Training Programme on ‘International Law, State Jurisdiction,

and the Law of the Sea’ – Diplomatic Academy of Viet Nam

Session 6
Core Principles of International
Environmental Law

Seline Trevisanut
Prof. International Law and Sustainability
Utrecht University School of Law
 Overview of this lecture

• ‘No harm’ principle

• Principle of prevention
• Precautionary principle
• Polluter pays principle
• Common but differentiated responsibilities principle
• Sustainable development
• Procedural obligations

2
 ‘No harm’ principle
= responsibility of a
State not to cause
transboundary
environmental damage
• Principle 21 Stockholm Declaration, Principle 2 Rio Declaration:
–States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction

• Core content: Responsibility not to cause transboundary environmental

damage
• Incorporated/reflected in large number of international instruments
• Legal status: customary IEL
 Principle of prevention
• Closely linked to ‘no harm’ principle

• Positive obligation

• Scope:
• (mainly) transboundary environmental damage
• damage in areas beyond national jurisdiction

• Incorporated in large number of treaties and other international

instruments

• Legal status: customary IEL

→ Duty to prevent transboundary damage

• ICJ, Corfu Channel, ICJ 1949

The Court points out that the principle of prevention, as a
customary rule, has its origins in the due diligence that is required
of a State in its territory.

• ICJ, Advisory Opinion on the Legality of Nuclear Weapons, 1996:

The existence of the general obligation of States to ensure that
the activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is
now part of the corpus of international law relating to the
environment
• ICJ, Corfu Channel, 1949
The Court points out that the principle of prevention, as a customary rule,
has its origins in the due diligence that is required of a State in its territory
• Obligation is not absolute (unless activity is prohibited by IEL), but
requires State to act with ‘due diligence’ to prevent significant
transboundary harm

• What is due diligence?

• ICJ, Pulp Mills, 2010

A State is thus obliged to use all the means at its disposal in order to avoid
activities which take place in its territory, or in any area under its
jurisdiction, causing significant damage to the environment of another State
⇒ Obligation of conduct
Degree of diligence required depends on:

• Type of activity and risks involved (hazardous or ultrahazardous)

• Particular circumstances (size of the operation, location, special

climatic conditions, materials used, etc.)

⇒ appropriate and proportional to the degree of risk of

transboundary harm in the particular instance” (ILC 2001)

⇒ Content may change over time (ITLOS 2011)

• ITLOS, Advisory Opinion on Activities in the Area 2011
• Not an obligation to achieve the result, but an obligation to deploy
adequate means, to exercise best possible efforts, to do the utmost,
to obtain this result
• At the minimum, obligation to take measures within their legal
system, which must consist of laws and regulations and
administrative measures
=> measures must be ‘reasonably appropriate’

• Followed in Advisory Opinion on IUU Fishing, 2015

• obligation satisfied when the flag State has taken all necessary
measure to ensure compliance and to prevent IUU fishing by fishing
vessels flying its flag

• South China Sea arbitration 2016: law & enforcement equally important
 Precautionary principle

• Rio Declaration, Principle 15

• In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
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

• Unclear principle:
⇒Normative content
⇒Status under international law
⇒Function
• Precautionary action

• Uncertainty
• Complexity + variability = unpredictability

• Vulnerability
• Human activities can cause serious harm to the environment
• Recovery of such harm is often slow or impossible (irreversible harm)

• Uncertainty + vulnerability = precaution

• ‘Better safe than sorry’
• ‘Erring on the side of caution’
• ‘In dubio pro natura’
• Precaution in treaty law
• Global:
• 1985 Vienna Convention on Ozone Layer
• 1992 Biodiversity Convention
• 1992 Climate Change Convention
• 1996 Protocol to London Convention
• 2001 Convention on Persistent Organic Pollutants
• 2023 Implementing Agreement to UNCLOS on the Conservation
and Sustainable Use of Marine Biological diversity in Areas
Beyond National Jurisdiction (BBNJ Agreement)
• Regional:
• 1992 European Union Treaty
• 1998 OSPAR Convention
• 2003 African Nature Conservation Convention
• Core elements of precaution

1. Risk:
• Threshold of risk: significant, serious or irreversible harm
• Probability of risk: reasonable grounds, none

2. Scientific uncertainty:
• regarding the cause, extent and/or probability of the potential harm
• Threshold: lack of full certainty, no conclusive evidence

3. Action to be taken:
• Effective and proportional action has to be taken to prevent and/or
abate harm => duty to act
• Justification to act: scientific uncertainty does not justify inaction
 Polluter Pays principle

• Rio Declaration, Principle 16

National authorities should endeavour to promote the internalization
of environmental costs and the use of economic instruments, taking
into account the approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public interest and
without distorting international trade and investment

• Environmental damage caused by private actors

• Normative content general, indeterminate
• Specific modalities case-specific
• Liability regimes
 Common but differentiated
responsibilities principle
• Rio Declaration, Principle 7
[…] In view of the different contributions to global environmental
degradation, States have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the
international pursuit of sustainable development in view of the pressures
their societies place on the global environment and of the technologies and
financial resources they command

• Climate change regime

• GHG emissions’ reduction targets
 Sustainable development
• Definition:
“development that meets the needs of the present without
compromising the ability of future generations to meet their own
needs.” (WCED, Our common future, 1987)

• Elements:
•future generations: Principle 3, Rio Decl.
•sustainable use
•(inter-generational) equity
•integration of environment and development: Principle 13, Rio Decl.

• Legal status: concept, principle, policy goal?

• 1997 ICJ judgment Gabcikovo-Nagymaros case
(Hungary/Slovakia)
Throughout the ages, mankind has, for economic and other reasons,
constantly interfered with nature. In the past, this was often done without
consideration of the effects upon the environment. Owing to new scientific
insights and to a growing awareness of the risks for [hu]mankind — for
present and future generations — of pursuit of such interventions at an
unconsidered and unabated pace, new norms and standards have been
developed, set forth in a great number of instruments during the last two
decades. Such new norms have to be taken into consideration, and such
new standards given proper weight, not only when States contemplate new
activities but also when continuing with activities begun in the past. This
need to reconcile economic development with protection of the environment
is aptly expressed in the concept of sustainable development. (para.140)
 Procedural obligations

• Duty to assess risks

• Duty to cooperate
• Duty to notify and inform of risks
• Duty to consult
• Duty to notify and assist in case of emergencies
• Duty to allow public participation (access to information,
participation in decision-making, access to justice)
Duty to assess risks

• Rio Declaration, principle 17

Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse
impact on the environment and are subject to a decision of a competent
national authority

• Status not debated

It may now be considered a requirement under general international law to
undertake an environmental impact assessment where there is a risk that
the proposed industrial activity may have a significant adverse impact in a
transboundary context, in particular, on a shared resource. (ICJ, Pulp Mills
Case, para. 205)
Uncertain content :
• Elaborated in a few instruments:
• 1987 UNEP EIA Principles, 1991Espoo EIA Convention, Regional treaties and
other instruments (e.g., EU law)
• For which activities?
• ICJ, Certain Activities and Construction of a Road (Costa Rica v. Nicaragua)
2015: in a transboundary context
• ITLOS, AO on Activities in the Area: in an area beyond the limits of national
jurisdiction, to ‘common heritage of mankind’
• Whether transboundary EIA is part of international law or whether it is an
outgrowth of domestic EIA regulations
• Whether it involves consultation with affected population
Thank you for your attention!