EMERGING PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW

1. EMERGING PRINCIPLES AND CONCEPTS OF INTERNATIONAL ENVIRONMENTAL LAW by Mark D. Griffith. B.A. (Hons.); Ph.D.; LL.B (Hons.), LLM; MCIArb

2. PURPOSE OF PRESENTATION Provides a brief overview of some of the • Main Principles: (i.e. fundamental doctrines on which others are based, or rules of conduct); and • Concepts (i.e. central unifying ideas or themes) Underpinning MEA´s

3. SUSTAINABLE DEVELOPMENT Embodied in the Rio Conventions • CBD: Conservation of Biodiversity and the Sustainable Use of its Components • UNFCC: Climate Change should be coordinated with social and economic development in an integrated manner • UNCCD: Promotes a new approach within the framework of sustainable development • Sustainable development: Requires complementary • Development of trade law and environmental law; • Environmental law and human rights law; and • Development of liability and compensation regimes to meet the requirements of environmental law. • Rio Principles 4, 25: Protection of the environment an integral part of achieving peace and development

4. INTER-GENERATIONAL AND INTRA- GENERATIONAL EQUITY • Fundamental underpinning of sustainable development “development that meets the needs of the presentwithout compromising the ability of future generations to meet their own needs” • UNFCC, Article 3.(i) refers to inter-generational equity • CBC , Preamble • UNCCD • Stockholm Convention on Persistent Organic Pollutants

5. COMMON CONCERN OF MANKIND [RESPONSIBILITY FOR TRANSBOUNDARY HARM], AND COMMON BUT DIFFERENTIAL RESPONSIBILITIES Common Concern: Reflects humanity´s increasing awareness of inter-dependence and the global nature of environmental problems Basic Assumptions: • States should not cause harm with regard to issues of common concern • Shared responsibility for addressing those concerns Contrast this with the concept of State Sovereignty – notion of permanent sovereignty over natural resources [U.N. Resolution between 1952 and 1973]

6. EXTENSION OF THE CONCEPT OF STATE SOVEREIGNTY • Sovereignty right of states to exploit resources exists alongside the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or areas beyond the limits of national jurisdiction • Principle 21 of Stockholm Declaration, • Rio Declaration, Principle 2 • CBD, Article 3

7. COMMON BUT DIFFERENTIAL RESPONSIBILITES OF STATES • Recognizes the need for shared obligations to address common concerns • In accordance with one´s capacity and capabilities • States assume differentiated responsibility in addressing environmental issue - and extension of the principle of sovereignty • UNFCC, Articles 3, 4, 12 • CBD, Article 20 (4) • Rio Declaration, Principle 7 • UNCCD, Articles 5 and 6

8. ACCESS AND BENEFIT SHARING REGARDING NATURAL RESOURCES Places Emphasis • The unique relationship between indigenous peoples and some local communities with natural resources • Rio Principle 22: Highlights the vital role of indigenous people et al in environmental management • CBD: Preambular paragraph 12, Article 8 (j) Contracting Parties shall “subject to its national legislation, respect, preserve and maintain knowledge, innovation and practices of indigenous communities embodying traditional lifestyles… and promote their wider application with the approval and involvement of the holder of such knowledge, innovations and practices and encourage the equitable sharing of benefits arising from the utilization of such knowledge and practices” Right of Prior Informed Consent (PIC) Free, Prior and Informed Consent (FPIC) • Indigenous and Tribal People Convent

9. PRECAUTION PRINCIPLE OR (PRECAUTIONARY APPROACH) • Essential to protecting the environment, including human health • Controversial: disagreement of its precise meaning and Its legal status • Rio Declaration, Principle 15 [first global codification of the precautionary approach] • CBD; Preambular paragraph “…where there is a threat of significant reduction or lost of biodiversity, lack of full scientific uncertainty should not be used as a reason or minimize such a treat” • UNFCC, Article 3 (3) • Biosafety Protocol , Article 1, 10, 11 • Fish Stock Agreement, Articles 5, 6 • 1995 U.N. Agreement for the Implementation of the Provision for UNCLOS, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Species Article 5.

10. TRANSPARENCY, PUBLIC PARTICIPATION AND ACCESS TO INFORMATION AND REMEDIES • Transparency and access to information important to public participation • Right to know what decisions are being contemplated, the factual basis proposed and accomplished governmental action, etc. • Right to appropriate, comprehensible and timely information • Public participation is essential to good governance – responsive, transparent and accountability • Empowerment: access to effective judicial and administrative proceedings • Rio Declaration, Principle 10 • UNFCC, Article 4 • UNCCD, Article 3 • CBD , Articles 13, 14

11. POLLUTER PAYS PRINCIPLE (PPP) • Environmental costs of economic activities, including the costs of preventing harm, should be internalize rather than imposing upon society at large • Liability can be seen as a mechanism implementing the PPP. The concept has evolve to embrace liability • Rio Declaration, Principle 16 • POP Convention, Preamble International Civil Liability [Liability of private individuals for environmental damage] • International Convention on Civil Liability for Oil Pollution Damage, 1969 amended in 1976 and 1992 [Regime to guarantee payment of compensation by ship owners for pollution damage] • Convention for the Establishment of an International Fund for the Compensation of Oil Pollution, 1971 • Convention on Liability and Compensation from Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 I • Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 • International Convention on Oil Pollution Preparedness, Response and Cooperation, Preamble • Basel Protocol on Liability and Compensation from Transboundary Movement of Hazardous Waste and their Disposal, 1999

12. PREVENTION • Overarching aim that gives rise to a multitude of legal mechanisms [prior assessment of environmental harm, licensing instruments, emission limits, environmental impact assessment etc.]

13. TRADE RELATED MEASURES • Prohibitions and/or bans of import and/or export of products (CITES, Article III) waste; or controlled substances (Montreal Protocol, Article 4). • Control systems which range from export permits(CITES Article IV); quotas (CITES, Conf. 12.8, COP 13); licensing mechanisms (Montreal Protocol, Article 4B); Prior inform consent procedure (Basel, Article ), to discouraging of export of technology for the production of ozone depleting substance (ODS) (Montreal Protocol, Article 4). • Notification procedures: These are commonly used and usually involved the establishing of one or more competent authority with responsibility for regulating the import and export of the products, waste and or controlled substance in question. • Technical standards and regulations including labelling systems (CITIES Resolution Conf 11.16) registration systems for processing and repackaging (CITIES Resolution Conf. 12.7, COP 13; measures in accordance with international standards such as Sanitary and Phytosanitary Measures (MOP XIV,2004, Decision XIV.II). • Economic instruments including the use of economic incentives, subsidies etc. The use of economic incentives is not commonly used.

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