Prevention of Environmental Harm

Experience and scientific expertise demonstrate that prevention must be the Golden Rule for the environment, for both ecological and economic reasons. It is frequently impossible to remedy environmental injury: the extinction of a species of fauna or flora, erosion, or even the dumping of long life pollutants into the sea create irreversible situations. Even if the damage is reparable, the costs of rehabilitation are often prohibitive. The duty of prevention also clearly emerges from the international responsibility not to cause significant damage to the environment extraterritorially, but the preventive principle seeks to avoid harm irrespective of whether or not there are transboundary impacts.

The requirement of prevention is complex; it gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm,30 licensing or authorization that set out the conditions for operation and the consequences for violation of such conditions, including civil liability or penal responsibility. Emission limits and other product or process standards, the use ofbest available techniques and similar techniques can all be seen as applications of the principle of prevention. The preventive principle also can involve the elaboration and adoption of strategies and policies. An example is given by Article 206 of the Convention on the Law of the Sea:

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as possible, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments.

The same requirement can also concern other domains, such as the introduction of exogenous species into an ecosystem. The 1976 Convention on Conservation of Nature in the South Pacific provides that the contracting parties must carefully examine the consequences of such introduction (Article 5(4)).31

The preventive approach requires each state to exercise due diligence, which means to act reasonably and in good faith and to regulate public and private activities subject to

29 September 10, 1998, EMuT, 998:68.

30 This duty is expressed in the Rio texts: Principle 17, Chapter 22 of Agenda 21, Art. 8(h) of the Statement on Forests, and Art. 14(1)(a) and (b) ofthe Biodiversity Convention treat both the national and international aspects of the issue.

its jurisdiction or control that are harmful to any part of the environment. The principle does not impose an absolute duty to prevent all harm, but rather an obligation on each state to prohibit activities that could cause significant harm to the environment - for instance the dumping of toxic waste into an international lake - and to minimize detrimental consequences of permissible activities through regulation - for instance by imposing limits on the discharges of sulphur dioxyde (SO2) in the atmosphere. The preventive approach can also involve the elaboration and adoption of strategies and policies as well as the utilization of specific legal procedures such as environmental impact assessment32 or for the long term strategic planning.

In fact, the objective of almost all international instruments is to prevent environmental deterioration, whether they concern pollution of the sea, inland waters,33 the atmosphere, or the protection of living resources.34 Only a few international texts use other approaches, such as the traditional principle of state responsibility or direct compensation of the victims.

Negotiating Essentials

Negotiating Essentials

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