1.2 Principles for political and legal measures

Objectives

Important is to

•   distinguish and explain the principles guiding environmental law both in a national and an international frame,

•   understand the meaning of ‘environmental sustainability’ and ‘sustainable development’ in the context of nature protection

Serious and substantial environmental law has to be guided by some high-ranking principles. For many international and and national regulations in the field of environmental law within the European Union (e.g. in Germany), four basic principles are the basis for all processes of environmental law-making:

• the precautionary principle
• the polluter-pays principle
• the principle of sustainable development (concerning the integration of environmental protection and economic development) and
• the cooperation principle.

Other principles are often mentioned, which complete the four main principles or define them in a particular way. Some examples are:

•   Environmental procedural rights

•   Common but differentiated responsibilities

•   International and intergenerational equity

•   Common concern of humankind

•   Common heritage

In this chapter we will focus on the four most important principles. 

1.2.1 Precautionary Principle

In its origin, the precautionary principle is rather a political than a philosophical principle and was first introduced as ‘Vorsorgeprinzip’ (principle of precaution) in the German-speaking area. It was incorporated into several national legal texts and international treaties or declarations. A good definition was given by Per Sandin et al. (2002: 288): ‘The basic message of the precautionary principle is that on some occasions, measures against a possible hazard should be taken even if the available evidence does not suffice to treat the existence of that hazard as a scientific fact.’ It can therefore be stated that the precautionary principle is based on hazard detection and scientific uncertainty. As a consequence, the burden of proof (that an action might cause severe harm to the public or the environment) falls on those who plead for measures to prevent such a harm (see also Raffensperger and Tickner 1999). Whenever one can anticipate plausible harm for society or the environment, the precautionary principle should be applied. But often it is not clear whether a planned action will cause harm to the public or the environment or not, because the possible impact of human actions on the environment or human health often depends on the dynamics of complex systems, so the real consequences of actions may be unpredictable. Therefore further scientific research is required – but also caution if a current action intervenes in complex (human or natural) systems.

Nowadays the precautionary principle is incorporated into many European and international contracts and treaties. In its 1976 Report on the Environment, for example, the German Federal Government describes the precautionary principle as follows:

Environmental policy is not limited to averting imminent danger and remedying damage that has already occurred. Precautionary environmental policy furthermore demands that the natural environment be protected and treated with care. The precautionary principle is embodied in a number of environmental provisions, and also involves resource conservation in addition to risk precaution. (German Federal Government 1976)

The precautionary principle is especially important in legal regulations and decisions concerning potential risks to public health, such as the marketing of genetically modified foods, the use of growth hormones in cattle raising, or measures to prevent ‘mad cow’ disease.

Nevertheless, in real cases the policy-makers often have to struggle with a lack of valid scientific information or with irreducible conflicts between the interests of different stakeholders. Sometimes it is very difficult to estimate or assess the potential harm and to find an acceptable political compromise. But anyway, rigorous application of the precautionary principle should be avoided when there is insufficient knowledge of whether there is a real potential risk from an innovative product or an activity or not. In this case the principle could be taken immoderately as an absolute ban on all actions (see Van den Belt 2003), which could stall all technological innovation and progress.

1.2.2 Polluter-Pays Principle (versus community-pays principle)

‘The polluter-pays principle states that the one causing environmental impact is principally held responsible—materially and financially—for protecting the environment and is required to prevent, correct, or financially compensate such impact’ (Knopp 2008: 7). But a problem arises in cases of inherited pollution where the responsible parties often cannot be held liable and—if no other party can be held responsible—the general public must bear the cost. In such cases the polluter-pays principle would be replaced by the community-pays principle.

In environmental law, the polluter-pays principle is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. It is regarded as a general custom because of the strong support it has received in most Organisation for Economic Co-operation and Development (OECD) and European Community (EC) countries. In international environmental law it is mentioned in Principle 16 of the Rio Declaration on Environment and Development (1992).

The polluter-pays principle is an important element of environmental policy and influences, for example, political measures for reducing greenhouse gas emissions. Often this principle will be applied as the so-called ‘extended polluter responsibility’ (EPR). This concept was probably first formulated by the Swedish government in 1975. For instance, EPR can help to shift the responsibility for dealing with waste from governments and taxpayers to the real producers of the waste. OECD defines EPR as: a concept where manufacturers and importers of products should bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical or socio-economic responsibility for environmental impacts that cannot be eliminated by design.

1.2.3 The Principle of Sustainability (Sustainable Development)

Another important principle is the principle of sustainable development, which may be viewed as an instance of applying the precautionary principle to resources. This principle is a pattern of resource use that aims to meet human needs while preserving the environment so that these needs can be met not only in the present, but also for future generations. For the first time, the term ‘sustainable development’ was used by the Brundtland Commission (1987), which has given the most famous definition of sustainable development as development that ‘meets the needs of the present without compromising the ability of future generations to meet their own needs’ (United Nations 1987).

The term ‘sustainable development’ seeks to combine the resources and processes of natural systems with the human needs and economic activities of social systems. Already in the 1970s the term ‘sustainability’ had been used for an economy ‘in equilibrium with basic ecological support systems’ (Stivers 1976). On the base of the idea of sustainability and according to the alarming theses of The Limits to Growth (Meadows et al. 1971) many ecologists tried to create the new concept of a ‘steady state economy’ (Daly 1973), especially with respect to environmental concerns. In this context, ‘sustainable development’ does not refer solely to environmental issues, but also takes into account social and economic considerations: the resolving of conflicts between different competing goals and stakeholders, and the harmonising of economic growth and social welfare with environmental quality. The concept of sustainable development – both of nature and society – points out that the survival of mankind depends essentially on the survival of nature (or the natural environment), because economic and socio-cultural welfare is directly coupled with the the welfare of nature – resources, plants, animals, etc. Ultimately, the exploitation and degradation of nature can result in the inability to maintain human life and even in the extinction of mankind. The theory of sustainable development is therefore based on the assumption that societies have to manage three forms of non-substitutable capital: economic, social and natural capital (for further information see Dyllick and Hockerts 2002; Daly 1973, 1991).

It may be that we can find ways to replace some natural resources, but it is unlikely that we will ever be able to replace the services provided by the eco-system: for example, to protect us against dangerous cosmic radiation with an intact ozone layer, or to supply us with sufficient oxygen as the tropical forests or the algae of the oceans do. The multi-functionality of many natural resources and also biodiversity are irreplaceable. Moreover, the deterioration of natural resources and the loss of natural services (e.g. the absorption of nutrients by a lake) are often irreversible processes – like the loss of ethnic and cultural diversity (e.g. indigenous languages). Therefore only a sustainable development can secure both: the protection of a functional intact environment and the survival and welfare of human beings.

1.2.4 Cooperation Principle

‘The cooperation principle underscores that environmental protection is the responsibility of all of society and not just of the state: accordingly, all parts of society and the state are called on to cooperate’ (Knopp 2008: 49) The cooperation principle is the weakest of the four environmental principles, and it can hardly be considered as satisfying the requirements demanded of a guiding principle of law.

1.2.5 Other Principles

Apart from the four basic principles, there are a number of others guiding national and international environmental law, such as the ‘grandfathering principle’ or the ‘principle that action may not result in a significant deterioration of environmental conditions’ (Knopp 2008: 49). Last but not least, we should also mention the principle of transboundary environmental protection: this principle mirrors the insight that environmental problems do not stop at national borders. For instance, this principle underpins much of the Water Framework Directive of the European Union where it covers the transboundary management of water resources in natural river basins.

National as well as international environmental laws are often based on the above called principles, especially the transboundary principle. This is important, because many environmental problems are border-crossing problems, for example, climate change, sea water and air pollution.