Description and assessment of the most important environmental law

principles expressed in the

UN Framework Convention on Climate Change.
Author: SEESURRUN Shanil

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 Table of Contents

1. Introduction..............................................................................................................................3

2. The No Harm Principle............................................................................................................3

3. The Precautionary Principle.....................................................................................................4

4. The Polluter Pays Principle .....................................................................................................5

5. Common but Differentiated Responsibilities...........................................................................6

6. Sustainable Development.........................................................................................................8

7. Conclusion ...............................................................................................................................9

8. Bibliography.............................................................................................................................10

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Intro:

In order to deal with the question at hand, we must first clarify what the UNFCCC is, and what it
does.

The UNFCCC came into force on the 21 March 1994 and currently has 197 party countries. It is
one of the 3 'Rio Conventions' adopted at the 'Rio Earth Summit' in 1992.

As stated on the UNFCCC's website: Preventing “dangerous” human interference with the
climate system is the ultimate aim of the UNFCCC.

In order to aid the fulfilment of its aim, the UNFCCC has set out numerous environmental law
principles. The 5 most important ones are as follows:-

1) No Harm Principle

2) Precautionary Principle

3) Polluter Pays Principle

4) Common but Differentiated Principles

5) Sustainable Development

The No-Harm Principle

This principle is categorised as a substantive preventative one. It is a widely recognised principle

of customary international law by which states have the duty to prevent, reduce and control the
risk of environmental harm to other states. States may exploit their own resources without
causing prejudice to areas beyond its jurisdiction. This principle is significant in relation to the
UNFCCC and is stated on the second page of the latter.

This principle was used in the Trail Smelter Arbitration 1941 (US v Canada), where the
tribunal stated that no state has the right to use or permit the use of its territory in such a manner

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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.

The ICJ confirmed the customary nature of this principle in 1949 in the Corfu Channel Case
(a.k.a. the UK v Albania Case). The court held that Albania was responsible in international law
for failing to inform the UK of mines laid in its waters. The Court also noted "...every state's
obligation not to allow knowingly its territory to be used for facts contrary to the rights of other
states."

The Precautionary Principle

This is another prevailing principle of IEL, shown by its presence as Principle 15 in the Rio
Declaration, Principle 7 in the UNEP and in Article 3(3) of the UNFCCC. The precautionary
principle encourages taking preventive actions such that we do not need reparatory ones. The
latter is used when human activities may lead to morally unacceptable harm that is scientifically
plausible but uncertain, actions will be taken to prevent or diminish that harm. The absence of
scientific consensus should not prevent States from taking precautionary measures in regards to
that potential harm.(Morally unacceptable harm referring to human or environmental harm that is
threatening to human life or is unfair for future generations.)

Simply, it uses the advice 'to err on the side of caution', and intends to prevent harm to humans,
the environment as well as the ecosystem at large.

The concept is thought to be of German origin. The term 'Precautionary Principle' had its origin
in the German word 'Vorsorgeprinzip'. In Germany the Vorsorgeprinzip (Precautionary
Principle) may be traced back to the first draft of a bill in 1970 aimed at securing clean air. The
law was passed in 1974 and covered all potential sources of air and noise pollution amongst
others.

In Mauritius, the Maritime Zones (Conduct of Marine Scientific Research) Regulations 2017 has
included the Precautionary Principle under its second provision stating-

" “Precautionary Principle” means principle 15 of the 1992 Rio Declaration on Environment and
Development, which provides that, in order to protect the environment, where there are threats of

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serious and irreversible damage to the marine environment or threats to human health in the
Republic of Mauritius, a lack of full scientific certainty regarding the extent of adverse effects
shall not be used as a reason for postponing measures to prevent or minimise environmental
degradation arising in any way from a matter or person or activity regulated under these
regulations."

In the Taj Trapezium Case in India, the Supreme Court was dealing with the problem of
protecting the 'Taj Mahal' from the pollution of nearby industries. The court applied the
Precautionary principle and stated 'The environmental measures must anticipate, prevent and
attack the causes of environmental degradation.' Here, the burden of proof lied on an industry to
prove that its operations with the aid of coal/coke is environmentally benign (quasi-harmless). It
is rather, proved beyond reasonable doubt that the emissions produced by the use of coal/coke by
the industries in the Taj Trapezium are the main polluters of the ambient air. The court ordered
the industries to change over to natural gas or an industrial fuel or stop functioning with the use
of coal/coke in the Taj Trapezium and relocate themselves as per the directions of the Court.

The Polluter Pays Principle (The PPP)

This one falls under the category of 'Existing Principles of IEL'. It is also stated under Principle
16 of the Rio Declaration, Principle 8 of the UNEP and Article 3(1) of the UNFCCC. The
function of this principle is to make the party who's responsible for causing the pollution to pay
damage caused by the pollution. In a sense, it also has a valuable use as a deterrent, people will
think twice before harming the environment because of potential sanctions. They will be liable to
sanctions through legislations.

In the Indian case of M.C.Mehta v. UOI 1997(2)SCC411, the Supreme Court ordered the
Calcutta Tanneries to relocate and pay compensation for the loss of ecology/environment of the
affected areas and the suffering of the residents. Similarly, in M.C.Mehta v. Kamal Nath and Ors
(1997) 1 SCC 388, the court by considering the PPP as the law of the land, ordered that one who
pollutes the environment must pay to reverse the damage caused by his acts. Thus, Span Motels
who were illegally and callously interfering with the natural flow of Beas (a river) were directed
to pay compensation by way of costs for restitution of environment and ecology of the area.

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The PPP is quite successful in its mission. However, it can only be used for problems that come
from identifiable polluters who have sufficient economic resources to pay their fines/damages.
Moreover, it barely helps in serious environmental issues such as declining biological diversity
and destruction of ecological habitats in most cases.

Common But Differentiated Responsibilities [CBDR]

In the view of different contributions to environmental degradation, states have CBDR. This
principle is found in the Rio Declaration as principle 6, in the UNEP as principle 5, principle 10
in the CSD and it is emphasized under Article 4(1) of the UNFCCC.

Broadly, this concept says that all countries have the same responsibilities towards the
environment but each country has differing capabilities regarding the protection of the
environment. As mentioned by the UNFCCC; parties should act to protect the climate system
“on the basis of equality and in accordance with their common but differentiated responsibilities
and respective capabilities.”

Common responsibility describes the shared obligations of two or more States towards the
protection of a particular environmental resource. It is likely to apply where the resource is
shared, under the control of no state, or under the sovereign control of a state, but subject to a
common legal interest. A prime example would be biodiversity which is termed a common
concern of humankind.

As for Differentiated responsibilities, a CISDL (Centre for International Sustainable

Development Law) report stated:

'Differentiated responsibility of States for the protection of the environment is widely accepted in
treaty and other State practices. It translates into differentiated environmental standards set on
the basis of a range of factors, including special needs and circumstances, future economic
development of countries, and historic contributions to the creation of an environmental problem.
The Stockholm Declaration emphasised the need to consider “the applicability of standards
which are valid for the most advanced countries but which may be inappropriate and of
unwarranted social cost for the developing countries.” In the Rio Declaration, states agreed that

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“environmental standards, management objectives and priorities should reflect the environmental
and developmental context to which they apply,” that “the special situation of developing
countries, particularly the least developed and those most environmentally vulnerable, shall be
given special priority, and that standards used by some countries “may be inappropriate and of
unwarranted economic and social cost to other countries, in particular developing countries.'

CBDR evolved from the notion of 'common heritage of mankind'. In more depth, this principle
recognises the historical differences in the contribution of developed states and developing states
towards the environmental problems which we now face. Take for example, in the Industrial
revolution era, most pollution was being brought about by the developed countries. Therefore,
they now have the obligation to now, in turn, aid in the reparation and prevention of further harm
done through financial and practical aid towards other less developed countries. Developing
countries tend to be more vulnerable to the effects of climate change.

The principle of common but differentiated responsibility includes two fundamental elements.:

(1)The responsibility of States for the protection of the environment, or parts of it, at the
national, regional and global levels.

(2) The need to take into account the different circumstances, particularly each State’s
contribution to the evolution of a particular problem and its ability to prevent, reduce and control
the threat.

In practical terms, the principle also has at least two consequences:

(1) It entitles, or may require, all concerned States to participate in international response
measures aimed at addressing environmental problems.

(2) Second, it leads to environmental standards that impose differing obligations on States.

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Sustainable Development

Sustainable development is an attempt to economic planning that tries to foster economic growth
while preserving the quality of the environment for future generations. Therefore, it has 2 main
objectives which are (i)Environmental protection and (ii)Economic Development as well as a
sub-objective of Social Development. The objectives are regarded as non-hierarchical, they are
interdependent and mutually reinforcing.

Numerous things are implied under the principle of Sustainable Development:

 In the economic development, there should be a priority to the needs of the people,
especially those who are in poverty. This caters for the social aspect of Sustainable
Development.
 Implications are based on the concept of inter-generational equity. While the present
generation is pursuing the economic development and poverty alleviation, this should not
cause harm to the environment which the future generations will depend upon in order to
meet their needs. This means that we shall not harm the environment while searching for
economic progress such that the future generations will have to bear the consequences.

The Rio Declaration emphasises that States must apply the precautionary principle in balancing
between the economic development and the environmental protection. This principle is also
given much importance in the Stockholm Declaration as well as the World Charter for Nature.

Sustainable development is considered as a major principle in the international environmental

law. Its importance is showcased by the Commission for Sustainable Development (CSD). The
precautionary principle and the environmental impact assessment, are considered as the means of
contribution towards sustainable development.

In the case of Gabčíkovo -Nagymaros Project (Hungary v Slovakia), there was a bilateral treaty
signed by the 2 countries as a joint investment to produce hydroelectricity and protect against
flooding etc. Hungary and Slovakia undertook to ensure that the quality of water in the Danube
was not impaired as a result of the Project and that compliance with the obligations for the
protection of nature would be observed. Due to criticism that the project received in Hungary,
relating to economic and environmental considerations in particular, the Hungarian government
suspended the works. Before pronouncing on the legal consequences of its judgment, the ICJ

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noted that the Project’s impact upon, and implications for, the environment is considerable and
that ‘in the field of environmental protection, vigilance and prevention are required on account of
the often irreversible character of damage to the environment’. Though not explicitly mentioned,
this was the concept of sustainable development being used.

There are currently Sustainable Development Goals (SDGs) set out, with content of 17 goals to
be reached by 2030. These goals apply to all countries, irrespective of their wealth. It contains
169 targets which have been set out to address numerous issues which can be remedied through
sustainable development. Its ultimate goal is 'a universal call to action to end poverty, protect the
planet and ensure that all people enjoy peace and prosperity.'

Conclusion

Looking at the bigger picture, the purpose of these general principles of IEL found in the
UNFCCC is to prevent pollution, destruction of and anything harmful towards our environment
and ecosystems. Climate change is caused by the inter-play of numerous factors;

-Pollution from vehicles, factories, fossil fuel powerplants harm our ozone layer as well as the
health of living organisms, us included. This is because they release greenhouse gases as well as
harmful ones such as sulphur dioxide and carbon monoxide.

-Destruction of flora and fauna; deforestation and the killing of phytoplankton which may be
done by release of harmful chemicals in the sea (the ones responsible for converting Carbon
Dioxide into Oxygen). Therefore, there'll be even larger amounts of CO2 present in the
atmosphere.

With more CO2 in the atmosphere, more heat will be retained. Thus global warming will occur.
At the rate by which we are going, climate change is inevitable, the only thing we can strive to
do is to slow down the process as it is us humans who are at the heart of this crisis.

Hence, we can safely conclude that these principles are of great importance if we want to save
the world, not for the planet's sake but for our own since the planet shall be here with or without
our presence.

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Bibliography

United Nations Convention on Climate Change. [online] Unfccc.int. Available at:

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Unfccc.int. (2017). UNFCCC. [online] Available at:

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UKEssays. (2015). Polluter Pays Principle Case Study. [online] Available at:
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26 Nov. 2017].

LAW, P. (2013). Be Legal, Be Intelligent. [online] Newindialaw.blogspot.com. Available at:

https://newindialaw.blogspot.com/search/label/PRECAUTIONARY%20PRINCIPLE [Accessed
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[online] Available at: https://sustainabledevelopment.un.org/sdgs [Accessed 26 Nov. 2017].

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