INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES

principle 21/ principle 2 Rio convention. Also known as the principle of permanent
sovereignty/ principle of state responsibility; The principle allows states within limits
established by international law to conduct or authorize such activities as they choose within
their territories including activities which have adverse effects on their environment. According
to phillipe Sands1 the principle is comprised of two elements; the sovereign right of states to
exploit their own natural resources and the responsibility or obligation not to cause damage
to the environment of other states or areas beyond the limits of its natural jurisdiction.

Trial smelter Arbitration (United States V Canada)  The United States (P) sought damages
from Canada by suing them to court and also prayed for an injunction for air pollution in the
state of Washington, by the Trail Smelter, a Canadian corporation which is domiciled in Canada
(D)  The Tail Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail Smelter resulted
in the damage of the state of Washington between 1925 and 1937. This led to the United States
(P) suit against the Canada (D) with an injunction against further air pollution by Trail Smelter.
Issue. whether it is the responsibility of the State to protect to protect other states against harmful acts
by individuals from within its jurisdiction at all times? Held: It is the responsibility of the State to
protect other states against harmful act by individuals from within its jurisdiction at all times. No
state has the right to use or permit the use of the territory in a manner as to cause injury by fumes
in or to the territory of another or the properties or persons therein as stipulated under the United
States (P) laws and the principles of international law

The doctrine of public trust; this governs the use of property where a given authority in trust
holds title for the citizens. The Public Trust doctrine requires the government to preserve and
protect certain resources that the government holds in trust for the public. Part XIII of the 1995
Constitution of the Republic of Uganda under the National objective principle of state policy
provides that: “The state shall protect important natural resources, including the land, water,

1
Principles of International Environmental Law 2 nd Ed
wetlands, oil, fauna, and flora on behalf of the people of Uganda.” Under the principle
citizens have public right to use and enjoy the trust land and private property right that may exist
in the use, and possession of trust land. However the latter is subject to former.

And while the binding nature of these principles remains unclear, at the very least it suggests
that there is a constitutional basis for the public trust doctrine in Uganda. Furthermore, Article
237(b) of the Constitution provides that: “The government or Local government as determined
by Parliament by law shall hold in trust for the people and protect natural lakes, rivers,
wetlands, forest reserves, game reserves, national parks and any land to be reserved for
ecological and tourist purposes of the common good of all citizens.” (also reiterated in section
45 of the Land Act)

The Courts have applied the public trust doctrine to invalidate conflicting legislation, to limit the
alteration of public resources, to require express legislative action, and to identify public rights
over resource access and use.

As early as 1865, the English House of Lords defined the concept of public trust more explicitly
as is now known in the common law. In the case of Gann v Free Fishers of Whitestable,
(1865) HL it was held that: “The bed of all navigable rivers where the tide flows, and all
estuaries or arms of the sea is by law vested in the crown. By this ownership of the crown is for
the benefit of the subject, and cannot be used in any manner so as to derogate from, or
interfere with the right of navigation, which belongs by law to the subject of the realm.”

Under common law, the public trust doctrine imposed a high fiduciary duty of care and
responsibility upon the state. This duty rested on the nature of the state and the beneficiary
communities.

In the case of M.C. Metha v Kamal Nath and Others (1996 supreme court of India) the
public trust doctrine was also emphasized in the following terms: “The public trust doctrine
primarily rests on the principle that certain resources like the air, sea, waters, and the forests
have such a great importance to the people as a whole that it would be wholly unjustified to
make them a subject of private ownership. The said resources being a gift of nature, they
should be made freely available to everyone irrespective of the status in life. The doctrine
enjoins upon government the duty to protect the resources subject to the trust for the
enjoyment of the general public rather than to permit their use for the private or commercial
purposes.”

In the National Adubon Society v Superior Court of Alpine County (the Mono Lake
Case)17 the California Supreme Court summed up the powers of the state as trustee in the
following terms: “Thus the public trust doctrine is more than an affirmation of the duty of the
state to protect the people’s common heritage of streams, lakes, marshlands and the tide lands,
surrendering he right only in rare cases when he abandonment of that right is consistent with
the purposes of the trust...” In all the above cases, therefore, the public trust doctrine represents
a viable legal tool for establishing a system of governance that provides a dynamic and
interconnected framework for intergenerational responsibility for the management of natural
resources. However, the state still looks at natural resources as a source of income and wealth
and has therefore been unable to fulfil its role as a trustee. This has increase conflict between the
people and the state. It is suggested that this trusteeship should be vested in other representatives
of the people such as traditional/cultural leaders.

Mbabazi and others v Attorney General and NEMA 2 court held that the government is a
public trustee of natural resources and should pursuant to Article 39 preserve them for the
present and future generations.

The principle of preventative action; requires the prevention of damage to the environment or
other wise to reduce, limit or control activities which might cause or risk such damage 3. It seeks
to minimize environmental damage within a state’s jurisdiction as an objective.it requires action
to be taken at an early stage and where possible, before damage has actually occurred. 4
Experience and scientific expertise demonstrate that prevention of environmental harm should be
the “Golden Rule” for the environment, for both ecological and economic reasons. It is
frequently impossible to remedy environmental injury: the extinction of species of fauna and
flora, erosion, loss of human life and the dumping of persistent pollutants into the sea, for
example, create irreversible situations. Even when harm is remediable, the costs of rehabilitation
are often prohibitive. An obligation of prevention also emerges from the international
responsibility not to cause significant damage to the environment extra-territorially.
2
Civil Suit No. 283 of 2012
3
Ibid
4
Malcolm N. Shaw, International Law 6th Ed
 The prevention principle is provided for under sections 3(1), 3(2), 3(5)(a), 3(5)(f), 5(2)(j), 5(2)
(p)(i), 70, and 78 of the National Environment Act (NEA) 2019. One obligation that flows
from the concept of prevention is prior assessment of potentially harmful activities, i.e. the EIA
process. Other preventive mechanisms include: monitoring, notification, and exchange of
information, all of which are obligations in almost all recent environmental agreements.
International Agreements that provide for the prevention principle include: Article 22 the
United Nations Convention on the Law of Non-Navigational Uses of International
Watercourses; Article v (4) 1976 Convention on the Conservation of Nature in the South
Pacific; and Article 14(1) (a) and (b) the Convention on Biological Diversity. In fact, the
objective of most international environmental instruments is to prevent environmental harm,
whether they concern the pollution of the sea, inland waters, the atmosphere, soil or the
protection of human life or living resources. Only a relatively few international instruments use
other approaches, such as the traditional principle of state responsibility or direct compensation
of the activities.

Precautionary principle/ principle on Article 11(b) of the 1982 World Charter For Nature;
the principle provides that where there is a threat or serious irreversible damage, lack of full
scientific certainty shall not be used as reason for postponing cost-effective measures to prevent
environmental degradation.5 It entails inter alia preventing the release into the environment of
substances which may cause harm to occupants of the environment without waiting for scientific
proof regarding such harm.6

Principle of the 1982 World Charter for Nature in its principle 11(b) states that:

“ Activities which are likely to pose significant risk to nature shall be preceded by an
exhaustive examination; their proponents shall demonstrate that expected benefits outweigh
potential damage to nature, and where potential adverse effects are not fully understood, the
activities should not proceed.”4

Although the World Charter for Nature did not make any explicit mention of the precautionary
principle, it contained the essential ingredients of what eventually evolved into this contentious
legal doctrine.

5
Maurice Sunkin , David and Roberts , Source Book on Environmental Law , 2 nd Ed at page 46
6
Supra at page 275
Probably the most accepted articulation of the precautionary approach is principle 15 of the Rio
Declaration which states that:

“In order to protect the environment, the precautionary approach shall be widely applied by
states according to their capabilities. 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.”

The precautionary principle is provided for under Sections 4(3), 5(2)(g), 5(2)(i), 5(2)(j) and
Part X (i.e. sections 110-116 on EIA) of the National Environment Act (NEA) 2019. The
precautionary principle has also been consistently referred to in various international instruments
such as: the 1992 Convention on Biological Diversity (CBD);5 1992 United Nations Framework
Convention on Climate Change (UNFCCC);6

Article 1, 10 and 11 of The 2000 Cartagena Protocol on Biosafety; Article 5(c) and 6 of the
1995 Agreement on Fish Stocks; Article 5 (c)of the 2000 Convention on the Conservation of
Migratory Fish Stocks in the Western and Central Pacific Ocean.

The European Court of Justice (ECJ) has also adopted the precautionary approach, particularly in
respect to environmental risks that pose danger to human health.

In the ECJ case UK V Commission of the EC11, the court held that the Commission had not
committed manifest error when banning the export of beef during the “mad cow” crisis. The
Court said: “At the time when the contested decision was adopted, there was great uncertainty
as to the risks posed by live animals, bovine meat and derived products. Where there is
uncertainty as to the existence or extent of risks to human health, without having to await the
reality and seriousness of those risks to become fully apparent.”

In the Southern Bluefin Tuna Case (New Zealand v Japan; Australia v Japan)12, the
International Tribunal on the Law of the Sea (ITLOS) could not conclusively assess the scientific
evidence regarding the provisional measures sought by New Zealand and indeed, the country
requested the measures on the basis of the precautionary principle, pending a final settlement of
the case. ITLOS found that in the face of scientific uncertainty regarding the measures, action
should be take as a measure of urgency to avert further deterioration of the tuna stock. In its
decision, the tribunal said that the parties should act with prudence and caution to ensure that
effective conservation measures are taken to prevent serious harm to the stock of southern blue
fin tuna.

In the case of Leatch v National Parks and Wildlife Service and Shoalheven City Council
Land and Environment Court of New South Wales13, the Shaolhaven City Council granted
itself development consent for the construction of a link road with an area under the Council’s
jurisdiction. An objection was raised against the grant of the license on the basis that the fauna
Impact statement was invalid or legally inadequate as failing to comply with section 92D of the
National Parks and Wild life Act. It was submitted that there had been a failure to include “to the
fullest extent reasonably practicable” a description of the fauna affected by the actions and the
habitat of the fauna. The objection made very express references to the precautionary principle.
While disposing off the appeal, Judge Stein made explicit mention of the various international
instruments in which the precautionary principle in the Convention on Biological Diversity and
its applicability in Australia’s legal system. He concluded thus;

“… in my opinion, the precautionary principle is a statement of common sense and has

already been applied by decision makers in appropriate circumstances prior to the principle
being spelt out. It is directed towards the prevention of serious or irreversible harm to the
environment in situations of scientific uncertainty. Its premise is that where uncertainty or
ignorance exists concerning the nature or scope of environmental harm, decision makers
should be cautious.” The court was of the view that the is matter is one of common sense and
where there is a threat of significant reduction or loss of ecological diversity, lack of full
scientific certainty should not be used

The court also considered whether the precautionary principle would be applicable in situations
where it is not expressly stated in the relevant legislation.

He noted that: “Where the matter is not expressly referred to consideration of it may be
relevant if an examination of the subject matter, scope and purpose shows it is not to be an
extraneous matter.”

In the case of MS Sheila Zia and Others v WAPDA [Supreme Court of Pakistan], this case
concerned a petition by the citizens of a street located in Islamabad City expressing apprehension
against the construction of a grid station in a green belt of a residential locality. They pointed out
that the electromagnetic field (EMF) created by the presence of high voltage transmission lines at
the grid station would pose a serious hazard to the residents of the area especially the children
and the families that live in the immediate vicinity. A number of scientific studies had been
conducted of the effect of EMF but uncertainty remained an issue. As a result the court was
confronted with an issue of scientific uncertainty on the subject and consequently the application
of the precautionary principle. The court noted that the subject of EMF was a highly technical
subject and the experts and evidence put before it in the course of proceedings was inconclusive.
It could not therefore make a definite finding on the matter. With respect to the precautionary
principle the court made the following observation:

“.....There is a state of uncertainty and in such a situation the authorities should observe
the rules of prudence and precaution. The rule of prudence is to adopt such measures which
may avert the so called danger, if it occurs. The rule of precautionary policy is to first consider
the welfare and safety of the human beings and the environment and then pick up a policy and
execute the plan which is more suited to obviate the possible danger or make such alternative
precautionary measures which may ensure safety.”

The court concluded that:

“To stick to a particular plan on the basis of old studies or inconclusive research cannot be
said to be a policy of prudence and precaution.”

It appears from some of the judicial decisions that the courts have not yet determined how to
deal with the postulate that it is harmless. What seems clear is that there is judicial
acknowledgement of the inability of science to provide sufficient knowledge. Courts also seem
to recognize that political decisions have to be made in margins of error from determinism’s
ideal of all-encompassing knowledge, to uncertainty and unpredictability. In, that situation, the
conclusion from the decision is that the courts are very likely to be unwilling to push the
interpretive margins of the precautionary principle

The sustainable development principle;

Although sustainable development is susceptible to somewhat different definitions, the most

commonly accepted and cited definition is that of the Brundtland Commission on
Environment and Development, which stated in its 1987 report, Our Common Future, that
“Sustainable development is development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs.”

The parameters of sustainable development are clarified in Agenda 21 and the Rio Declaration.
Principle 4 of the Rio Declaration provides that: “In order to achieve sustainable
development, environmental protection shall constitute an integral part of the development
process and cannot be considered in isolation from it.”

The principle thus provides that states must use their resources in a manner in which human
beings are at the center of concerns for sustainable development.It advocates for meeting
ofdevelopment needs of the present without compromising the ability of future generations to
meet their own need.7

To this effect, Objective XXVII8mandates government to promote and implement energy

policies that will ensure that people’s basic needs and those of environmental preservation are
met. The same principles are repeated even in more detail in Sections 2 and 5(2)(b) of the
National Environment Act (NEA) 2019. It is submitted that whereas the constitution and the
NEA recognize the fundamental importance for sustainable development, both fail to set the
necessary legal mechanism to ensure it. The people themselves should have been given express
authority to ensure the observance of the principle of sustainable development both under the
constitution and the NEA. In this way, they would have been provided with a peaceful avenue,
for instance the courts of law, with in which to have conflicts relating to natural resources
resolved. Leaving the resolution in the hands of the executive escalates conflict because decision
making by the executive is more influenced by politics than reason. An example is the public
outrage and demonstration over the Mabira forest give away in 2007.

Lastly, under the principle of sustainable development, are the approaches that take into account
long term strategies and those that include the use of environmental and social impact
assessment, risk analysis, cost-benefit analysis and natural resource accounting

The polluter pays principle (PPP); establishes the requirement that the costs of pollution
should be borne by the person responsible for causing the pollution. Under the polluter pays
principle (PPP), allocates economic obligations in relation to environmentally damaging
7
UN Conference on Environment and Development,
8
Cap 1,1995 Constitution of the Republic of Uganda
activities.9 the polluter should repair the damage he has caused either by making actual
reparation or paying the necessary monetary compensation to society. Such compensation can be
paid before or after the event. Payment before the event can be in form of deposit bonds, which
are tied to environmental performance, to be forfeited if performance falls below expected
standards. An early version of the PPP was developed by the Organisation of Economic
Cooperation and Development (OECD) in the 1970’s in an effort to ensure that companies would
pay the full costs of complying with pollution control laws. The PPP was adopted by the OECD
as an economic principle and as the most efficient way of allocating costs of pollution-
prevention-and-control measures introduced by the public authorities in the member countries. It
was intended to encourage rational use of scarce resources and to avoid distortions in
international trade and investment. It was meant to apply with in a state, and not between states.

The polluter pays principle is provided for under sections 3(5)(g-i), 5(2)(l), 80, 144 and 171 of
the National Environment Act (NEA) 2019. Since 1972 the PPP has gained increasing
acceptance, has expanded in scope to include (at least in theory) all costs associated with
pollution, and has moved beyond the developed country context. Principle 16 of the Rio
Declaration provides: “National authorities should endeavor to promote the internalization of
environmental costs and the use of economic instruments, taking into account the approach
that the polluter should, in principle bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.”

Other international instruments that provide for the PPP include: Article 3(4) of the 1992
Convention on the protection of the Marine Environment of the Baltic Sea Area; Article
2(5) (b) the 1992 Helsinki Convention on the Protection and Use of Transboundary Water
Courses and International Lakes; Paragraph 3 and 4 of the 2003 Protocol on Civil Liability
and Compensation for Damage caused by the Transboundary Effects of Industrial
Accidents on Transboundary Waters to the 1992 Convention on the Transboundary Effects
of Industrial Accidents; and Article 3(2) the 1996 Protocol to the London Convention.

Indian council for Enviro-legal Action v Union of India 10Court stated that the That the
polluter pays principle demand that the financial costs of preventing or remedying damage

9
Supra at page 279
10
(1993) 3 SCC,7
caused by pollution should lie with the undertaking which cause the pollution or produce goods
which cause the pollution

Amooti Godfrey Nykana v NEMA and ors11the matter involved construction in a wetland
court noted that the precautionary principle and the polluter pays principle are essential features
of sustainable development

Inter-Generational Equity/ Inter- Generational Responsibility Under inter-generational

equity the present generation has the right to use and enjoy resources of the earth but is under an
obligation to take into account the long-term impact of its activities and to sustain the resource
base and the global environment for the benefit of future generations of human kind.
Intergenerational equity is also central to the attainment of sustainable development as resources
must be used sparingly if they are exhaustible or must be replenished if possible. The Preamble
of the 1995 Constitution of Uganda, Inter-generational equity requires that the present
generations exploit or use natural resources in a way that will enable the next/future generations
to use the same resources. Some national courts have referred to the rights of future generations
in cases before them. For example, the supreme court of the Republic of the Philippines decided,
in the Minors Oposa Case (Philippines- Oposa et. Al. v Fulgencio S. Factoran, Jr. et. Al. G.R.
101083) that, the petitioners could file a class suit, for others of their generation and for the
succeeding generations. The court considering the concept of intergenerational responsibility,
further stated that every generation has a responsibility to the next to preserve that rhythm and
harmony necessary for the full enjoyment of a balanced and healthful ecology The court held
that the right to the right to a balanced ecology and healthy ecology carries with it the duty to
refrain from impairing the environment and implies among other things the judicious
management and conservation of the of the country’s resources

Common but Differentiated Responsibilities; This principle is explicitly elaborated by

Principle 7 of the Rio Declaration which states that:

“States shall cooperate in a spirit of global partnership to conserve, protect and restore the
health and integrity of the earth’s ecosystem. In view to the different contributions to global
environmental degradation, states have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international pursuit
11
[2015] UGSC 14
of sustainable development in view of the pressures their societies place on the global
environment and the technologies and financial resources they command.”

This principle takes into account the differing circumstances, particularly in each state’s
contribution to the creation of environmental problems and in its ability to prevent, reduce and
control them. States whose societies have in the past imposed, or currently impose, a
disproportionate pressure on the global environment and which command relatively high levels
of technological and financial resources bear a proportionally higher degree of responsibility in
the international pursuit of sustainable development. In practical terms, the principle of common
but differentiated responsibilities is translated into the explicit recognition that different
standards, delayed compliance time tables or less stringent commitments may be appropriate for
different countries, to encourage the universal participation and equity.

According to the principle of common but differentiated responsibilities, developed countries

bear a special burden of responsibility in reducing and eliminating unsustainable patterns of
production and consumption and in contributing to capacity building in developing countries,
inter alia by providing financial assistance and access to environmentally sound technology. In
particular, developed countries should play a leading role and assume the primary responsibility
in matters of relevance to sustainable development. A number of international agreements have
taken into account the principle of common but differentiated responsibilities. These include the
Article 4 and 12 of the 1992 Climate Change Convention, Article 20(4) the 1992 Convention
on Biological Diversity, Article 5 and 6 of the 1994 Desertification Convention,

The Participatory Principle;The participatory principle involves the participation of the public
in environmental affairs. This enables the public to know what the decision making processes
are, what decisions are being contemplated, the alleged factual bases for proposed and
accomplished governmental actions, and other aspects of governmental processes. Public
participation is essential to sustainable development and good governance in that it is a condition
for responsive, transparent and accountable governments. It is also a condition for the active
engagement of equally responsive, transparent and accountable Civil Society Organizations
(CSOs) and Non-Governmental Organizations (NGOs). Public participation in the context of
sustainable development requires effective protection of the human right to hold and express
opinions and to seek, receive and impart ideas. It also requires a right of access to appropriate,
comprehensible and timely information held by the governments and industrial concerns on
economic and social policies regarding the sustainable use of natural resources and the protection
of the environment, without imposing undue financial burdens upon the applicants and with
adequate protection of privacy and business confidentiality. Public participation also requires
access to effective judicial and administrative process. The participatory principle is provided for
under Sections 5(2)(a), 5(2)(i), 50 and 51(2)(a-b) of the National Environment Act (NEA)
2019. In many countries, public participation rights are granted through Environmental and
Social Impact Assessment procedures with broad public participation or various sectoral laws
adapted to the special circumstances of each sector.26 Several International instruments provide
for public participation in environmental affairs, these include: The Rio Declaration under
principle 7; the 1992 United National Framework Convention on Climate Change
(UNFCC).

JUDICIAL DECISIONS

Rodgers Muenza Nzoika and 2 ors v Tiomin Kenya ltd, 12court stated that environmental
degradation is not necessary an individual concern but a public loss and any form of feared
degradation and pollution will be caused to the detriment of the population.

12
Civil case no. 97 of 2001