Key principles of law and policy for the protection of the global environment.

Throughout mankind history, pollution is one of the constant global issues and the extent of this situation is currently at an unprecedented level. In order to halt pollution activities around the world, International environment law was established. It is a speciality part of international law and it has become a field in its own right, especially on sea pollution, wildlife law, climate change, freshwater resources, sustainable development, and chemicals. Rapid change in the world through industrialisation and economic development goes along with the scientific discoveries having a very good impact on the environment of the world. In order to develop laws and regulations that can lead to environmental stability, international organisations have made some general principles and rules of international environmental law that guide and affect the shape of international environmental law that are reflected in the treaties, the binding acts of international organisations, state practice, and soft law commitments. Therefore, these key principles are applicable to all international community's members through the variety of activities which they carry out or authorise and in respect of protection of all aspects of the environment.?

The Preventative Principle

One of the main principles is the ‘Preventative Action’ where the ultimate goal of this principle is to prevent damage to the environment, and to reduce, limit or control the actions which might cause harm. As such, this principle is sometimes called the “principle of preventive action” or “preventive principle” to not allow actions that could harm the environment. Based on preventive principle, a state may be under a responsibility to avoid harm to the environment within its jurisdiction and since it requires steps to be taken at an early stage or, if it is possible then before harm has actually happened, additional support must be provided by external bodies. Some of their functions include creation of domestic environmental protection legislation to establish authorisation procedures, adoption of international and national commitments on environmental standards, access to environmental information and carrying out environmental impact assessments in relation to conduct of certain proposed activities. Plus, this principle also mentions that states have the duty to guarantee the activities within their jurisdiction or control do not cause harm to the environment of other states or of areas beyond the limits of national jurisdiction. Interesting point to note is that this preventive principle is always related to the ‘precautionary principle’ and it has been recommended indirectly or directly by the 1972 Stockholm declaration, the 1978 UNEP draft principle, the 1982 World charter for nature, 1933 London Convention, Art. 12(2), 1963 Test ban treaty and 1992 Climate change convention, Art 2 to stop the negative impacts on the environment.

One of the applications of this principle is the Hungary v Slovakia case. The background of this Gabcikovo – Nagymaros Case is such that they were in breach of their obligation under a treaty signed on September 16,1977 between the countries about the building and process of the Gabikovo–Nagymaros power plant system of locks on the river Danube. Hungary has abandoned completion of the project by claiming that the power plant will cause serious risk to the Hungarian environment and the water supply of Budapest. The court has considered the environment protection points and correct timing to halt the project and prevent further irreversible harm to the environment. At the same time, the concerns stated by Hungary for its natural environment in the region affected by the project related to a necessary interest of the state as stated by Preventative principales. As the judgement, the court gave advice to both the parties that the parties together should explore in detail the effects on the environment due to operation of the Gabcikovo power plant and to seek a satisfactory outcome for the capacity of water to be released into the main part and branches of Danube river. This case was a classic example to prove that the State is under a duty to prevent damages to the environment within its jurisdiction.

?

Preventing environmental harm is cheaper, easier, and less environmentally dangerous than reacting to environmental harm that already has taken place. The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping. The prevention principle also was an important element of the EC’s Third Environmental Action Programme, which was adopted in 1983.

?

?

Limitation of Preventative principle

One of the limitations of preventative principles is that? the existing “preventive principles” are not sufficient to cope with the challenge of climate change. This is because we have already reached a point where prior damages to our environment are at a stage that it cannot be undone. However,? it still remains as the primary solution since the “sustainable development” solutions cannot improve the status quo.?

Besides that, usually proportional action to prevent harm will be taken on the basis of the best information available and there are reasonable grounds for concern that serious and/or irreversible harm to the environment may be caused. As indicated by the minimum thresholds of probability (‘reasonable grounds for concern’) and gravity (‘serious and/or irreversible’) of anticipated harm, not every chance of any adverse impact is supposed to trigger action. In other words, the preventative actions creation and timing is hard to predict. As for implementation, the condition of effectiveness requires that a course of action is chosen that effectively safeguards the endangered part of the environment. The proportionality criterion demands that this course of action correspond to the size (probability and gravity) of the risk involved, so as to avoid adoption of excessively strict measures. The greater the aggregate risk, the more rigorous the precautionary action to match it, and vice versa.?

As improvement steps for this principle, tougher rules need to be introduced on the part of the states and it requires strong political will and determination along with comprehensive ground research and expert analysis. For example, the Copenhagen conference highlighted the political will when no feasible and concrete deal was done to fight the global climate crisis. The government needs to portray similar determination for enforcing preventive initiatives as well as sustainable development programs domestically, the government of a state is required to have similar determination. Such initiatives are also likely to create many domestic challenges in the form of both social and economic. For example, if a country bans the use of poly-bags because of a faulty recycling system and wants to introduce better alternatives such as paper bags, it must ensure enough supply of paper. In order to do so, they cannot create additional pressure on their natural resources to produce more paper but they must introduce the technology of producing recycled paper out of wastes. Thus, they will be required to bring in an updated waste management system.

Precautionary Principle

The next closely related principle is the Precautionary Principle that specifies the following statement ,‘if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence’. In other words, it proposes immediate action to be taken against environmental issues. This principle is expressed in the Rio Declaration, which stipulates that, 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.”

In the United States, the precautionary principle was incorporated into the design of habitat-conservation plans required under the Endangered Species Act. In 1989, the importation of U.S. hormone-fed beef was banned when the EC invoked the precautionary principle, and in 2000 the organization adopted the principle as a “full-fledged and general principle of international law.” In 1999, Australia and New Zealand invoked the precautionary principle in their suit against Japan for its alleged overfishing of southern bluefin tuna. This ensures timely action taken and no time is wasted since much environmental legislation is drafted in response to catastrophes.

Limitation of Precautionary principle

The major drawback of the precautionary principle is that it is not well characterised. There are uncertain terms, for example, ‘irreversible mischief’ or ‘absence of full logical conviction’ in the legislations. For instance, Sandin (2006) censures the Rio Declaration’s definition for just revealing to us what not to do, and for not characterizing a ‘genuine risk’. Critics have recommended that these definitional issues undermine lawful conviction (Morris, 2000) and create conflicting and deceitful choices (Marchant and Mossman, 2004). Some contend that specific forms of the guideline are deadening since they offer no direction and restrict all approaches (Sunstein, 2003).

Besides that, the precautionary principle is as a feature of the bundle of standards of biologically economic improvement. Due to rapid implementation, logical vulnerability and numbness are overtaken by control of advances, financial improvement and administrative examination include adjusting the expense of being excessively prohibitive in regard to development with the dangers and cost of being excessively tolerant.The idea of preventive actuation of the precautionary principle results in the taking of measures to forestall ecological harm without holding up until the point that the truth and reality of the dangers of natural harm turn out to be completely known. It is recommended that some edge for blunder ought to be held until the point that every one of the outcomes of the choice to continue with the advancement plan, program or task are known.?

The main condition for use of prudent standards is a danger of genuine or irreversible ecological harm and logical vulnerability with regards to natural harm. The prudent standard won’t make a difference if there is no significant logical vulnerability (the second condition isn’t fulfilled) yet there is a danger of genuine or irreversible natural harm (the principal condition point of reference is fulfilled). In a later case, measures will at present be taken yet these will be protection measures to control or direct the generally certain risk of genuine or irreversible natural harm, as opposed to prudent steps which are fitting in connection to dubious dangers. In short, precautionary principle cannot always reverse the impact of environmental damages.?

“Polluter Pays” principle

Lastly, the “polluter pays” principle which was established in the 1970s has been a dominant concept in environmental law.? This principle functions as the last step in educating and ensuring the offenders would not resort in conducting harmful actions to the environment. The stakeholders cause harm by minimizing the operations and waste disposal cost and resorting in short-cuts to save cost. For example, factories that emit unfiltered exhaust into the atmosphere or discharge untreated chemicals into a river pay little to dispose of their waste. Instead, the cost of waste disposal in the form of pollution is borne by the entire neighbouring community. Therefore, the purpose of many environmental principles and? regulations is to force polluters to bear the real costs of the pollution even though such costs often are difficult to calculate precisely. Plus,? this will encourage producers of pollution to make cleaner products or practice proper steps for waste disposal. The famous example is the Oil Pollution Act (1990), which was passed in reaction to the spillage of 41 million litres of oil into Prince William Sound in Alaska in 1989. In this case, the “polluter pays'' principle underlies U.S. laws requiring the cleanup of releases of hazardous substances, including oil. Besides, such policies also have been adopted at the regional or state level; in 1996 the U.S. state of Florida, in order to protect its environmentally sensitive Everglades region where a limited “polluter pays” provision was incorporated into its constitution.?

At international level, the “polluter pays” principle also guides the policies of the EU and other governments throughout the world. For an instance, a 1991 ordinance in Germany held businesses responsible for the costs of recycling or disposing of their products’ packaging, up to the end of the product’s life cycle; however, the German Federal Constitutional Court struck down the regulation as unconstitutional.

Limitation of “Polluter pays” principle

The main weakness of this principle is that the cost of environmental damages far exceeds the damages to the profit of wealthy businessmen and their companies. By the time, the court hearing and judgement is imposed, the effect could be irreversible.? Apart from that, estimates of the fine could be undervalued and the culprits could easily be released after paying the sum like in Malaysia’s river pollution cases.

In short, the idea that polluters should be made to pay for damages that they cause to the health and property of others is sound and, in a free society based on personal responsibility, should be the guiding principle for all environmental policy.

In conclusion, these three principles of environmental laws have their own functionality and mechanism of framework with their own limitations. Combination of the principles in many scenarios however, will help to minimize the impact on the environment and protect it by deterring further detrimental actions from the culprits.

List of Bibliography

[1] Trouwborst, A. (2009). Prevention, Precaution, Logic And Law-The Relationship between The Precautionary Principle and The Preventative Principle in International Law And Associated Questions. Erasmus L. Rev., 2, 105.

[1] Cameron, J., & Abouchar, J. (1991). The precautionary principle: a fundamental principle of law and policy for the protection of the global environment. BC Int'l & Comp. L. Rev., 14, 1.

[1] Sadeleer, N. D. (2006). The precautionary principle in EC health and environmental law. European Law Journal, 12(2), 139-172.

[1] McIntyre, O., & Mosedale, T. (1997). The precautionary principle as a norm of customary international law. J. Envtl. L., 9, 221.

[1] Duman, A., & Kureková, L. (2012). The role of state in development of socio-economic models in Hungary and Slovakia: the case of industrial policy. Journal of European Public Policy, 19(8), 1207-1228.

[1] Bodansky, D. (2010). The Copenhagen climate change conference: a postmortem. American Journal of International Law, 104(2), 230-240.

[1] Chandrappa, R., & Das, D. B. (2021). Environmental Legislation. In Environmental Health-Theory and Practice (pp. 3-19). Springer, Cham.

[1] Carroll, C., Rohlf, D. J., vonHoldt, B. M., Treves, A., & Hendricks, S. A. (2021). Wolf Delisting Challenges Demonstrate Need for an Improved Framework for Conserving Intraspecific Variation under the Endangered Species Act. BioScience, 71(1), 73-84.

[1] Chamanara, S., Goldstein, B., & Newell, J. P. (2021). Where’s the beef? Costco’s meat supply chain and environmental justice in California. Journal of Cleaner Production, 278, 123744.

[1] Tanaka, Y. (2021). Obligation to Conduct an Environmental Impact Assessment (eia) in International Adjudication: Interaction between Law and Time. Nordic Journal of International Law, 90(1), 86-121.

[1] Barton, C. (1998). The status of the precautionary principle in Australia: its emergence in legislation and as a common law doctrine. Harv. Envtl. L. Rev., 22, 509.

[1] Sandin, P. (2006). A paradox out of context: Harris and Holm on the precautionary principle. Cambridge Q. Healthcare Ethics, 15, 175.

[1] Morris, J. (Ed.). (2000). Rethinking risk and the precautionary principle. Butterworth-Heinemann.

[1] Hahn, R. W., & Sunstein, C. R. (2005). The precautionary principle as a basis for decision making. Available at SSRN 721122.

[1] Gaines, S. E. (1991). The polluter-pays principle: from economic equity to environmental ethos. Tex. Int'l LJ, 26, 463.

[1]Ketkar, K. W. (1995). Protection of marine resources: the US Oil Pollution Act of 1990 and the future of the maritime industry. Marine Policy, 19(5), 391-400.

[1] Currie, D. P. (1994). The constitution of the Federal Republic of Germany. University of Chicago Press.

[1] Ngang, C. P., Hashim, H. S., & Pereira, J. J. (2017). Climate change mitigation and adaptation as a sustainable regional development strategy: Lessons from the Selangor River Basin, Malaysia. Int. J. Malay. World Civilis, 5, 43-52.