GENERAL PRINCIPLES OF ENVIRONMENTAL LAW

International environmental law has developed a set of general principles which

underpin its rules, and provide a basis for the development and evolution of
national environmental regimes. These principles are derived from the
provisions of international treaties and conventions on the environment
particularly, the Brundtland Report 1985, and Rio Declaration 1992. These
principles include;

i. SOVEREIGNTY AND RESPONSIBILITY PRINCIPLE

This emphasizes the relationship between two distinct legal terms that is,
sovereignty and responsibility. While the former term connotes that States have
sovereign rights over their natural resources and can exploit them within the
ambit of their domestic legal framework, the latter connotes that States should
not cause damage to the environment. This implies that the concept of
sovereignty is not absolute, and States have the general responsibility not to
cause damage to the environment of other States. This was affirmed in
Principle 2 of the Rio Declaration on the Environment and Development 1992
which provides that "States have, in accordance with principles of international
law, the sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and 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." In
the areas beyond the limits of national jurisdiction, such as the high seas, the
applicable concept is not one of sovereignty, but one of common heritage of
humanity. In such cases of shared resources, the principle of States’
responsibility emphasizes an obligation on States to ensure an equitable and
harmonious utilization of such resources, and not to cause damage to the
legitimate interests of other States in those resources. In addition, States have
the responsibility to cooperate in ensuring the conservation of common or
shared resources. For instance, the Gulf of Guinea Commission was launched
in 2001 to promote close consultation among member-States on the
exploitation of the natural resources of the Gulf of Guinea.

ii. THE PRECAUTIONARY PRINCIPLE

A broader implication of States’ responsibility is that States wishing to

undertake certain activities will have to prove that those activities will not
cause harm to the environment. This may require some forms of scientific
assessment and proof of the potential impacts of the proposed activities.
However, the assessment and proof of environmental impacts is usually
complicated by high levels of scientific uncertainty, as it may be impossible to
determine precisely what effects an activity may pose on the environment. For
instance, it may be impossible to determine with precision whether a certain
level of water pollution will reduce a healthy fish population, or the level of air
pollution that will result in an increase in mortality from respiratory disease.
Hence, the precautionary principle requires that where there is a strong
suspicion that a certain activity may have environmentally harmful
consequences, it is better to control that activity rather than wait for
incontrovertible scientific evidence. This principle is expressed in Principle 15
of the Rio Declaration which provides 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”.

iii. THE PREVENTION PRINCIPLE

Although many environmental laws and regulations are implemented in

response to environmental catastrophes, it is believed that preventing
environmental damage is cheaper, easier and less harmful than responding to
an actual environmental harm. Thus, the prevention principle affirms States’
obligation to prevent environmental damage within and outside their
jurisdictions. In other words, States are expected to take actions at an early
stage to reduce pollution, rather than waiting to restore contaminated areas.
According to Principle 14 of the Rio Declaration, States should effectively
cooperate to discourage or prevent the relocation and transfer of any activities
and substances that can cause severe environmental damage or are harmful to
human health. This is the fundamental notion behind some environmental
legislations and policies. For instance, the realization that the discharge of
toxic substances in such quantities or concentrations which exceed the
capacity of the environment's degradation capacity must be halted in order to
ensure that serious or irreversible damage is not inflicted upon ecosystems led
to the adoption of the 1989 ‘Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal’, which sought to minimize
the production of hazardous wastes and combat illegal dumping. Similarly, the
prevention principle was the foundation of several laws on environmental
impact assessment globally; see for instance the Nigerian Environmental
Impact Assessment Act 1992.

iv. THE POLLUTER PAYS PRINCIPLE

This principle connotes that where there is a violation of international

environmental law within a State, the State must stop the wrongful conduct
that constitutes such violation, and ensure the re-establishment of the
condition that existed prior to the wrongful conduct. This affirms the notion of
environmental remediation which refers to the removal of environmental
pollutants or contaminants in order to restore the environment to its original
state. Where it is however impossible to re-establish the pre-existing condition,
the State should ensure the provision of compensation for the wrongful
conduct. According to Principle 13 of the Rio Declaration, States are required
to develop national law regarding liability and compensation for the victims of
pollution and other environmental damage. This is the basis of several
regulatory requirements seeking adequate compensation for victims of
environmental hazards.

The polluter pays principle can also be understood from the perspective of
polluters externalizing the environmental costs of their pollution. For instance,
industries emitting greenhouse gases in the atmosphere or discharging toxic
chemicals in a river are not paying for their waste disposal. Instead, the cost is
pushed to the entire community in the form of environmental pollution and its
attendant effects. Likewise, the driver of a vehicle even though responsible for
the cost of fuelling and maintaining the vehicle, however externalizes the costs
associated with the gases emitted from the exhaust of the vehicle. However,
Principle 16 of the Rio Declaration requires States to promote the
internalization of environmental costs and the use of economic instruments
taking into account that it is in the public interest that a polluter bears the
cost of pollution. Hence, environmental laws and regulations are expected to
force polluters to bear the real costs of their pollution, even though such costs
are often times difficult to calculate precisely. Regulatory measures that are
common in this regard include requirements to invest in cleaner technologies
or clean-up of releases of hazardous substances such as oil spills, issuance of
environmental permits for a fee, environmental taxes, carbon pricing, etc.

v. SUSTAINABLE DEVELOPMENT

This refers to an approach to economic planning that attempts to foster

economic growth while preserving the quality of the environment. The principle
is premised on the realization that the environment, including the human and
animal inhabitants, and the economy are interlinked. This realization was
affirmed by the Rio Declaration as well as the World Commission on
Environment and Development (Brundtland Commission) in its 1985
Brundtland Report. Sustainable development, as reflected in these
international instruments, encompasses at least three elements including,
intergenerational equity, sustainable use of natural resources, and integration
of environment and development. Intergenerational equity connotes the need to
preserve natural resources for the benefit of future generations. As put by
Principle 3 of the Rio Declaration, the right to development must be fulfilled in
a manner that equitably meet the developmental and environmental needs of
present and future generations. The Brundtland Report defines sustainable
development as development that meets the needs of the present generation
without compromising the ability of future generations to meet their own
needs.

Sustainable use of natural resources deals with the proper management and
exploitation of natural resources for the benefit of humanity. The principle of
integration emphasizes the need to ensure that environmental considerations
are integrated into the economics of development plans. According to Principle
4 of the Rio Declaration, environmental protection should constitute an integral
part of development processes. The principle of sustainable development
constitutes one of the core foundations for the implementation of various
environmental impact assessment laws across the globe.

NOTE: It is noteworthy that States are traditionally the primary subject of

international law hence, their stipulation as the duty-bearers by the various
principles of international environmental law. However, globalization and
industrialization have occasioned several environmental harms by corporate
entities thereby, shifting the global attention to corporate environmental
practices. With the increasing industrialization and its attendant
environmental effects, it became apparent that the objective of environmental
protection and conservation will require public and private partnership. This
has prompted the development of several international soft laws which
stipulate the responsibility of corporate entities with regard to environmental
protection and conservation. Such international soft laws include international
instruments, other than treaties, stipulating principles, standards, or other
guidelines of expected corporate behavior. For instance, the Organization for
Economic Cooperation and Development (OECD) in its ‘Guidelines for
Multinational Enterprises’ recognizes sound environmental management as a
corporate responsibility and as such, encourages corporate entities to take due
account of environmental protection within the legal framework and
administrative practices of their host countries. Likewise, the United Nations
Global Compact encourages businesses to support a precautionary approach to
environmental challenges, undertake initiatives to promote greater
environmental responsibility, and encourage the development and diffusion of
environmentally friendly technologies.