Emerging principles of international environmental law
The principles of international environmental law reflect the origin and development of international environmental law along with its future evolution. These principles address the social, economic, and environmental matters, which are at the root of the global environmental crisis, and offer normative guidelines to deal with those crises in a holistic manner.3 They also facilitate the interpretation of legal norms in a given situation while addressing the gaps in positive law.4 The widespread recognition and acceptance of these principles has been demonstrated through state practice while incorporating the principles into national laws and regulations. Domestic courts and tribunals also apply the principles progressively. Some of these major principles are discussed below.
Responsibility for transboundary harm
The principle of no harm obliges states not to use their territory in a maimer that is detrimental or injurious to another state. Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration referred to the principle of responsibility for transboundary harm which is also known as the “no harm principle”. The principle of no harm contains two elements which cannot be separated without changing their effect: (i) the sovereign right of states to exploit their own natural resources, and (ii) the responsibility not to cause any transboundary environmental damage.5
The responsibility of the state extends to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities, or to interfere with other legitimate uses of the sea.6 The preventive aspect of the no-harm principle is reflected in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which pledges to minimise the production of hazardous waste and to combat illegal dumping. The general responsibility of the state to mutually respect other’s territorial sovereignty and not to cause transboundary damage had been asserted earlier in the Trail Smelter Arbitration case.7 The state responsibility for environmental injury has also been endorsed in the ICJ advisory opinion in Legality of the Threat or Use by a State of Nuclear Weapons in Armed Conflict case.8