International Environmental Law 101: A Regime of Principle



Foreword


International Environmental Law 101 is a series that will dive into the manifold dimensions of preserving the environment from human destruction and economic development. The main objective of these articles is to provide a comprehensible grasp of the institutions, agreements, and principles which fight against climate change, wildlife extinction, and contamination and fight for sustainable practices.


International Environmental Law 101 will be predominantly divided into the following chapters:

1. International Environmental Law 101: How the Silent Spring Ignited the Environmental Movement

2. International Environmental Law 101: A Regime of Principle

3. International Environmental Law 101: The Decision Makers

4. International Environmental Law 101: A Map of Environmental Agreements

5. International Environmental Law 101: The Case of Temperature

5. International Environmental Law 101: The Transition to Sustainable Development

6. International Environmental Law 101: Healing the Ocean


Image 1. Illustration of the IMF discussing policy for climate change. (Bonazzi,2019)


A turning point in the development of environmental law was when a brilliant scientist rang the alarm bell on practices that polluted and harmed the flora and fauna of our human environment. The talk on environmental degradation was transferred to the United Nations and publicly discussed in the UN Stockholm Summit for the Human Environment. It was a very hesitant attempt that did not provide much change to the cause.


However, when an international issue of concern is acknowledged, the next step is the establishment of a legal framework that will eventually provide a solution. The UN cannot address a problem and then proceed to never discuss it again, or at least they need to pretend that they are actively seeking a solution. In an international setting, conferences are held, new institutions emerge, international organizations and programs are founded, and they all work together to monitor the situation and form a plan to combat it.


Formulating an environmental regime with sets of rules, principles, and institutions is a very slow and complex process. Similar to any beginning, one looks for direction, a moral compass that will provide character to the future legal proceedings of the issue. Principles are that moral compass.


We can picture law as a living organism that has basic needs that should be fulfilled but can also be influenced by the changes in the environment it resides in, forcing it to adapt accordingly. Those basic needs are its principles, the rules it can never forego, the ethical undercurrent of its decisions, and if it does not listen to them, it becomes sick. In this allegory the organism is International Environmental Law, the needs are the specific principles that this regime is based on and the changes are the damage the human species have caused to their environment that necessitates restoration. If all else fails, if treaties are annulled or ignored, these are the principles we will fall back on and that legislators will use as a compass to form new rules and order. If those principles are ignored, environmental law becomes pointless, the organism dies.


Principles of law are different from rules of law because their content is more general and does not regulate a very specific behaviour. They reflect the philosophy of environmental policy, a regime that is rapidly changing. New rules are forged in compliance with these principles. Past established rules are interpreted by these principles and are brought up whenever there is a legal gap that leaves room for debate. If there is a conflict in a major development project that needs to be solved in a formal setting, a court of law will refer to the relative principle of environmental law, study it, and then decide.

This very fragile agenda of the United Nations was fleshed out for the first time during the UN Stockholm Conference for the Human Environment when 21 environmental principles were introduced for the first time. However, when discussing environmental principles, one must take into consideration – first and foremost – the Rio Declaration and the Brundtland Report.


The Brundtland Report is alternatively titled “Our Common Future”, a title that was chosen to drive the point of our "mutual demise" home. It was first published by the World Commission on Environment and Development, a sub-commission of the United Nations, in 1987, and then included the Rio Declaration in 1992. The Rio Summit is considered to be the most important of conferences for the development of environmental law, and these principles are one of the reasons for its momentousness.



The UN Conference in Rio de Janeiro 1992 (Public Health Notes, 2019)


The Do No Harm principle is a concept derived from the general philosophy of international law. According to the principle, states should not use their territory or allow uses in their territory that cause harm to neighbouring states or areas outside their jurisdiction, e.g. the open sea. At first glance, the principle seems quite standard and understandable but when being implemented, legislation encounters problems at every stage. The principle can be even considered contradictory in terms of state sovereignty, another international principle that allows states to use their land and by extension the natural resources of their land, in whichever way they please. Unfortunately, this principle changes the rights that states have over their transboundary resources, such as rivers. Nations do not like the UN getting involved in their affairs.


To solve this issue states are advised to forge treaties with neighbouring nations and decide on a general plan on how they will use their joined resources. The message is to collaborate. This is when the Cooperation Principle of International Environmental Law comes into the picture. This principle can be found in Article 27 of the Rio Declaration which sazs that states need to cooperate in good faith to further develop international law for environmental protection. States might have borders but the environment does not.


The cornerstone of environmental law is the Prevention Principle, contained in most international conventions. It obliges states to take measures to prevent environmental damage. The difference with the Do No Harm Principle is that while the latter is related to the behaviour of the state towards other states and gradually to areas outside state sovereignty, the prevention principle’s main point is to prevent states from causing damage everywhere. It is only concerned with the purpose of preventing environmental damage. The state should take measures not to cause environmental damage at home, not simply to its neighbours. These measures are related to their energy choices, their carbon emissions levels, animal and plant protection, etc.



Image 3. Cartoon: The Economy is just a means to an end... (Magnin, 2019)


Sustainable Development is the other major principle in environmental law. It is defined as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. It is the major discussion in environmental and energy forums around the world about how we can continue to grow economically and exponentially without damaging the source that provides for it. We need to find a way to bestow upon future generations the same quality of everyday life that we experience now. Sustainable development consists of three pillars: economic, social, and environmental. In our communities, all three pillars are necessary and need to operate in synergy and harmony.


When talking about placing environmental protection above economic growth most people become skeptical. It is clear that we cannot halt economic investments or the development of a major project that would benefit other issues like poverty or poor infrastructure. What we can do is take measures to prevent the major environmental degradation that will certainly commence by an activity like building an airport. The Precautionary Principle is taken into account when we have scientific certainty that a project will impact the environment negatively. The project needs to go through a process of environmental risk assessment before it is given a license to proceed.


The Polluter State, the one that wants to go through such a project while being fully aware that it will cause environmental damage, is also the one that will pay for this damage. This principle is a tool that holds the states accountable for what they have done. It also acts as another preventive measure since states generally never like to pay for their sins. The Polluter Pays Principle makes the states pay for the restoration measures that will need to be set into place.


These are some of the most fundamental environmental principles that illustrate the philosophy on environmental law and how this law attempts to deter the environmental degradation that takes place every day. There are many more old and new principles, such as the Non-regression Principle which states that nations cannot backpedal on existing environmental regulations or the Restoration Principle which rules that environmental degradation needs to be restored in the aftermath of damage.


We need not forget that the environment is a shared space. In shared spaces, we establish rules for cooperation and cohabitation. We are the residents of this planet. We are also its destroyers and its protectors. We need to adhere to these principles and we need to force our communities and governments to adhere to them as well. It is not a coincidence that in international environmental law there is also the Public Participation Principle that formally integrates public opinion in the matters of our environment.


This is a matter that we have a say in.


Today and every day, use your voice to protect the environment, to make a difference.




References


Zarei, S., Mosavi Madani, N. International Cooperation for Environmental Protection in the 21st Century. CIFILE Journal of International Law (2020), Journal Vol. 1, No. 2, 1-07. Retrieved December 4, 2021, from http://www.cifilejournal.com/article_103856_a549a4a7109a60f27c9350e2b8d7ecb2.pdf


Encyclopædia Britannica, inc. (n.d.). Principles of environmental law. Encyclopædia Britannica. Retrieved December 4, 2021, from https://www.britannica.com/topic/environmental-law/Principles-of-environmental-law#ref224613.


International & European Environmental Law. EC.EUROPA.EU. (n.d.). Retrieved December 4, 2021, from https://ec.europa.eu/environment/legal/law/14/pdf/2_Cliquet.pdf.


Report of the World Commission on Environment and Development: Our Common Future. UN Sustainable Development. (1987). Retrieved December 5, 2021, from https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf.


Techera, E. J., Lindley, J., Scott, K. N., & Telesetsky, A. (2021). Routledge Handbook of International Environmental Law. Routledge.




Image Sources



Image 1. Bonazzi, D. (2019). Cover Illustration for Imf Finance and Development about the threat of climate change and the long-term perspective on measures to reduce greenhouse gas emissions. Davide Bonazzi. IMF. Retrieved December 12, 2021, from https://bremerwhyte.com/news-thought-leadership/what-is-environmental-law/.


Image 2. Adhikari, S. (2019, July 28). Rio Declaration on Environment and Health. Public Health Notes. Retrieved December 5, 2021, from https://www.publichealthnotes.com/rio-declaration-on-environment-and-health/.


Image 3. Magning, A. (2019) The economy is just a means to an end... (cartoon #20) for Sustainability Illustrated. (2021, May 4). Retrieved December 11, 2021, from https://sustainabilityillustrated.com/en/2019/01/29/economy-vs-environment-cartoon/.







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Konstantina Manta

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