3 Law and Sustainability: Core principles of international and EU law

Enviornmental principles

Environmental principles are open concepts, give them specific normative content (flexibility to adapt with it)

General functions of environmental principles

Normative guidance

Legislative orientation

• Policymakers, what type of provisions would be aligned with what an environmental principle requires

Interpretative function

• By administration or by judicial review

Gap-filling function

• Very often something is unclear or conflicting, outdated

Integration and balancing

Standard for administrative and judicial review

Sources of IEL

Primary sources

• Treaties (Multilateral environmental treaties)

• Customary IL

• General principles

Subsidiary sources:

• Judicial decisions

• Doctrine

Other sources

• Acts of international organisations

• Soft-law instruments

Environmental principles in EU law: the Treaty basis

Article 191(2) TFEU: EU environmental policy shall aim at a high level of protection and shall be based on:

• the precautionary principle

• the principle that preventive action should be taken

• the principle that environmental damage should as a priority be rectified at source

• the principle that the polluter should pay

Beyond Article 191(2):

• Art. 11 TFEU: integration of environmental protection requirements (horizontal clause)

• Art. 3(3) and 3(5) TEU: sustainable development as a Union objective, internally and externally

• Art. 37 EU Charter of Fundamental Rights

Most of these principles are of international origin – the difference is that in the EU they are codified in primary law and operationalised by the CJEU

Obligatory, but flexible on the means > what is the type of provision and the obligations connected to it

What legal force do the EU principles have?

Neither Art. 191(2) TFEU nor other provisions of primary law specifies the legal content of the principles

Policy shall be based on the principles > no absolute normative relevance

Read through Dworkin and Alexy: principles, unlike rules, do not generate definitive legal consequences – they are obligations to optimise

• Cannot be applied in an ‘all or nothing fashion’

• Their scope is shaped by factual obstacles and by competing principles

Content is therefore substantiated through secondary legislation and CJEU caselaw

Risk: uncertainty about their legal structure, scope and consequences may weaken their claim to normative validity

• Might lead issues about normative validity and density

No harm principle - international level

= responsibility a State not to cause transboundary environmental damage

Principle 21 Stockholm Declarations + Principle 2 Rio Declaration:

• States have, in accordance with the Charter of the United Nations and the 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 of areas beyond the limits of national jurisdiction

• Stockholm was until “and developmental”, Rio added that (backwards? Picture of the political context back then

Core Content:

• Every state has the right to manage and utilise natural resources within its jurisdiction and to formulate and pursue its own environmental and developmental policies

• LIMIT: States have an obligation to protect their environment and responsibility not to cause transboundary environmental damage

• The responsibility exists not only with respect to the environment of other states, but also of areas beyond the limits of national jurisdiction, such as the high seas and the airspace above them, the deep seabed, outer space

Incorporated/reflected in large number of international instruments

Legal status: customary IEL

> more negative connotation

Principle of prevention

Closely linked to ‘no harm’ principle

Positive obligation > duty that requires states to take specific, proactive actions to protect the environment, rather than simply refraining from harmful activities

Scope:

• (mainly) transboundary environmental damage

• Damage in areas beyond national jurisdiction

Incorporated in large number of treaties and other international instruments

Legal status: customary IEL

Duty to prevent transboundary damage

• ICJ Corfu Channel, ICJ 1949

  • The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory.

• ICJ, Advisory Opinion on the Legality of Nuclear Weapons, 1996:

  • The existence of the general obligation of States to ensure that the activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment

ICJ, Corfu Channel, 1949: The Court points out that the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory

• Obligation is not absolute (unless activity is prohibited by IEL), but requires State to act with ‘due diligence’ to prevent significant transboundary harm

Mean too many things? No, it’s not absolute, but it requires due diligence obligations

Due diligence

ICJ, Pulp Mills, 2010

• A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State

⇒ Obligation of conduct

• Obligation of conduct: demonstrate that all necessary steps have been taken

  • Benchmark: the steps have been fulfilled

• Obligation of result: Reach the result, independent from the process

Degree of diligence required depends on:

• Type of activity and risk involved (hazardous or ultrahazardous)

• Particular circumstances (size of the operation, location, specific climatic conditions, material used, ect.)

> Appropriate and proportional to the degree of risk of transboundary harm in the particular instance (ILC, 2001)

> Content may change over time (ITLOS, 2011)

ITLOS, Advisory Opinion on Activities in the Area 2011

• Not an obligation to achieve the result, but an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result

• At the minimum, obligation to take measures within their legal system, which must consist of laws and regulations and administrative measures

=> measures must be ‘reasonably appropriate’

Followed in Advisory Opinion on IUU Fishing, 2015

• obligation satisfied when the flag State has taken all necessary measure to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag

South China Sea arbitration 2016: law & enforcement equally important

A variable standard, it evolves in a dynamic way, not an obligation to achieve a result, but to deploy adequate means

• What is allowed, what is prohibited > enforcement

Question: Can you think what is the most common instrument to implement the principle of environmental policy…?

Ex-ante, different levels

• Environmental Impact Assessment (on the EU level)

• Monitoring (preventative programmes)

• Notification

• Exchange of Information

Procedural obligations

• Duty to assess risk

• Duty to cooperate

• Duty to notify and inform of risks

• Duty to consult

• Duty to notify and assist in case of emergencies

• Duty to allow public participation (access to information XXXXXXXX

Duty to assess risks

• Rio Declaration Principle 17

  • Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority

• Status not debated

  • It may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. (ICJ, Pulp Mills Case, para. 205)

Uncertain content:

• Elaborated in a few instruments

  • 1987 UNEP EIA Principles, 1991Espoo EIA Convention, Regional treaties and other instruments (e.g., EU law)

• For which activities?

  • ICJ, Certain Activities and Construction of a Road (Costa Rica v. Nicaragua) 2015: in a transboundary context

  • ITLOS, AO on Activities in the Area: in an area beyond the limits of national jurisdiction, to ‘common heritage of mankind’

• Whether transboundary EIA is part of international law or whether it is an outgrowth of domestic EIA regulations

• Whether it involves consultation with affected population

Prevention in EU law

Art. 191(2) TFEU: policy based on the principle that preventive action should be taken

• No transboundary threshold, the principle operates inside the Union legal orders as well

Operationalised across secondary law:

• Directive 2010/75/EU on Industrial Emissions: integrated prevention and control for installations with major pollution potential

• EIA Directive and SEA Directive: prevention through prior assessment and authorisation

• Waste Framework Directive 2008/98/EC: prevention at the top of the waste hierarchy

CJEU: the system of strict species protection under the Habitats Directive ‘presupposes the adoption of coherent and coordinated measures of a preventive nature’

• C-518/04 Commission v Greece; C-383/09 Commission v France

Rectifying environmental damage at source

An EU-specific principle – no direct counterpart in international environmental law

Art. 191(2) TFEU: environmental damage should as a priority be rectified at source

Closely related to prevention; refers both to place (where to combat pollution) and time (when)

Limits the discretion of the Union institutions only when:

• source-oriented measures are not even considered, or

• end-of-pipe measures cannot deal with the damage from the outset

Secondary law: emission and product standards; Directive 2008/105/EC (EQS water policy) – ‘causes of pollution should be identified and emissions dealt with at source’

CJEU, C-2/90 Commission v Belgium (Walloon Waste): waste should be disposed of as close as possible to the place where it is produced

Precautionary principle - international law

Rio Declaration, Principle 15

• “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“

• Lack of scientific certainty cannot be used as an excuse, justification when threat of serious or irreversible damage is present

• Threat of a damage,

1992 Intervention on Biological Diversity

• “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific uncertainty should not be used as a reason for postponing measures to avoid or minimize such a threat”

1992 Climate Change Convention – Article 3(3)

• “The parties should take precautionary measures to anticipate, prevent or minimize the cause of climate change and mitigate its adverse effects..

Precautionary action

• Uncertainty

  • Complexity + variability = unpredictability

• Vulnerability

  • Human activities can cause serious harm to the environment

  • Recovery of such harms is often slow or impossible (irreversible harm)

• Uncertainty + vulnerability = precaution

  • Better safe than sorry

  • Erring on the side of caution

  • In dubio pro nautra

Core elements of precaution

1. Risk

• Threshold of risk: significant, serious or irreversible harm

• Probability of risk: reasonable grounds, none

• Not sound with some kind of evidence, then it is not covered

2. Scientific uncertainty

• Regarding the cause, extent and/or probability of the potential harm

• Threshold: lack of full certainty, no conclusive evidence

3. Action to be taken:

• Effective and proportional action has to be taken to preserve and/or abate harm  duty to act

• Justification to act: scientific uncertainty does not justify inaction

Precautionary principle in EU law: basis and scope

Art. 191(2) TFEU: the only express Treaty reference, and only for environmental policy

In practice the scope is much wider – environmental, human, animal and plant health

• Commission Communication on the Precautionary Principle, COM(2000) 1: structured risk analysis (assessment, management, communication)

• measures must be proportional, non-discriminatory, consistent with similar measures, and based on a cost/benefit examination

Secondary law: REACH (chemicals), General Food Law, GMO framewo

• Policy areas where you might see the direct implementation, usually uncertainty, science evolving

CJEU:

• C-180/96 UK v Commission (BSE): the principle also applies to the protection of human health

• C-127/02 Waddenzee: broad application in nature conservation (Art. 6(3) Habitats Directive)

• T-13/99 Pfizer: authorities may be obliged to adopt precautionary measure

Precautionary principle in EU law: how far does it go?

Not a ‘no risk’ principle – no carte blanche for the EU or the MS

• a measure cannot rest on a ‘purely hypothetical approach’ or mere conjecture (Pfizer, T- 13/99, paras 143, 146)

• ‘risk’ = probability that a product or procedure will adversely affect protected interests; ‘hazard’ = capability of having an adverse effect (para. 147)

• Technology and scientific innovation is part of society

• Scientific evidence is not finalised to some extent

• The threshold for action is low

• Even if impossible action can be required (??)

But the threshold for acting is low:

• protective measures may be taken without waiting for the risk to be fully demonstrated (C-343/09 Afton Chemical)

• even where a full risk assessment is impossible because the data are inadequate (C-236/01 Monsanto Agricoltura Italia)

Burden of proof

• Burden of proof may shift to the operator, but authorities must still show as thorough a scientific assessment as possible

• Depending on the case, there might be a reverse of proof, shifting to the operator

• When operator has more data, it’s the one who has to prove

Limit

• proportionality (C-77/09 Gowan), non-discriminatory and objective application, and limited judicial review (manifest error or misuse of powers

• The element of risk, what is risk, what is socially accepted risk? More of a political responsibility matter

> defining an acceptable level of risk remains ‘an eminently political responsibility’

Polluter Pay Principle

Rio Declaration Principle 16

• National authorities should endeavour 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

The environmental costs of economic activities, including the costs of preventing potential harm, should be internalised rather than imposed upon society largely

Origins in OECD as an economic principle aiming to ensure that companies would pay the full costs of complying with pollution-control laws and were not subsidised by the state

Both ex-ante and ex-XX

Polluter Pays Principle

Scenario: an unregulated industry that discharges pollutants into a river

Three possibilities of PPP violation:

1. the river can remain polluted and rendered unsuitable for certain downstream activities, causing the downstream community to suffer an economic loss

2. the downstream community can build an adequate water treatment plant at its own cost

3. the polluter may receive public subsidies for controlling the pollution.

1 – not 2 – not 3 – not

Implementation challenges

• Environmental damage caused by private actors?

• Who is the polluter?

• How to determine the pollution costs?

• Diffuse pollution?

• Monetary evaluation of environmental damage/pollution

Polluter pays principle - EU

Art. 191(2) TFEU: EU policy based on the principle that the polluter should pay

Secondary law gives it concrete form:

• Environmental Liability Directive 2004/35/EC: prevention and remediation duties for the ‘operator’

• Art. 14 Waste Framework Directive 2008/98/EC: costs of waste management borne by the waste holder or producer

• environmental taxes and charges, product and production standards

Broad reading of the key terms:

• ‘polluter’ (operator, ELD), ‘pollution’ (Water Framework Directive 2000/60/EC), ‘pays’ (prevention, restoration and compensation costs)

Limit, CJEU Raffinerie Mediterranee (C-378/08): ‘it is not a consequence of the polluter pays principle that operators must take on the burden of remedying pollution to which they have not contributed’

> Clear causation

Common but differentiated responsibilities principle

Rio Declaration Principle 7

• “[…] In view of 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 of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command“

Explicit recognition that different standards, delayed compliance timetables or less stringent commitments may be appropriate for different countries

Climate Change regime

• Art. 4 of the 1992 UNCCC recognizes the special circumstances and needs of developing countries and then structures the duties and obligations to be undertaken by states accordingly.

• The idea of CBDRRC is state in art. 3 as the first paragraph to guide the parties in the implementation of the Convention.

• Art. 12 allows for differences in reporting requirements

Sustainable Development

Definition:

• “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” (WCED, Our common future, 1987)

Principles 4 and 25 of the Rio Declaration

➢ PRINCIPLE 4: "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.”

➢ PRINCIPLE 25: "Peace, development and environmental protection are interdependent and indivisible.”

Key Elements:

• Future Generations: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations” (Principle 3, Rio Declaration)

• The concept of “needs”, in particular the essential needs of the world’s poor

• (inter-generational) equity

Legal status: concept, principle, policy goal?

• para 140 Gabcikovo-Nagymaros

Sustainable development in EU law

TEU:

• Art. 3(3): the Union ‘shall work for the sustainable development of Europe’, based on balanced economic growth and a high level of environmental protection

• Art. 3(5) and Art. 21(2): sustainable development in the Union’s external action

• Art. 11 TFEU and Art. 37 Charter: integration ‘in particular with a view to promoting sustainable development’

But: none of these provisions has direct legal consequences

• no definition in primary law, no legal clarity, difficult to enforce

CJEU uses it as an interpretive standard: C-43/10 (Acheloos river) – Art. 6(4) Habitats Directive read ‘in the light of the objective of sustainable development’

⇒ legal status in the EU: objective and guiding concept rather than an enforceable norm

The integration principle

Art. 11 TFEU: environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development

• placed in Title II TFEU – provisions having general application (horizontal clause)

• mirrored in Art. 37 Charter of Fundamental Rights

Two forms:

• procedural integration (e.g. environmental impact assessment)

• substantive integration (environmental objectives written into other policies)

Few CJEU cases ⇒ weak judicial control over how integration is carried out

• Open question: is the principle strong enough in practice? Compare the European

• Green Deal and the EU Biodiversity Strategy with the Common Agricultural Policy