Law Essay-預防措施原則和可持續發展原則的國際角色

 

預防措施的原則和可持續發展原則在國際環境法的成功

國際環境法的目標

 

國際環境法的主要目標是去阻止環境污染。污染從不考慮政治邊界，使國際法的一個重要特性是環境法。國際環境法在國際法的領域中被判斷是一個好的特性。現在它憑它本身的權力變成一個領域，特別是在海污染，野生動物法，氣候變化，淡水資源，可持續發展，化學藥品和其他的東西上。就國際環境法本身而言，國際環境法被發展，利用和執行。最近幾年，加工問題已經確定增加了注意。

 

背景

 

從970年到1980年，環境規則首先處理個人情況的風險是明顯的，接著是給予主要階段去阻止環境損害的發生在此期間。聯邦政府1971年的環境政策的議程是重要的，這在未來將會被國際環境法的積極的行政法完成。主要目標是去保護環境繼續健康的需要，去在人類自我價值中生活，從污染重去節約水，土壤，空氣和樹。真正的目的是從人類活動中阻止影響環境的損害，由于在特定損害的情況下，它只有在1980年代才在前面有力的進來，被稱為“清理問題”。

 

這里有許多歷史的階段去構成現代環境法。這全部是因為環境法已經被快速的發展關系到環境問題，這個在世界范圍內的快速改變，通過工業化，經濟的發展，與科學發現并肩，有一個很好的影響在世界的環境上。但是這里有一件事不能被忽視，每個國家對國際環境法要做出自己特殊的支持。

 

Role Of Preventive Action Principle And Sustainable Principle International Law Essay

 

預防措施的原則和可持續發展原則在國際環境法的成功-Role of Preventive Action Principle and Sustainable Principle in Success of International Environmental Law

 

國際環境法的目標-Aim of international environmental law

 

The main aim of international environmental law is to stop the pollution. Pollution never thinks about the political boundaries, making international law an important feature of environmental law. International environment law was measured to be a fine specialty within the field of international law. Now it has become a field in its own right, especially on sea pollution, wildlife law, climate change, freshwater resources, sustainable development, and chemicals, with others. International environment law is developed, applied, and enforced on the matter of international environmental law itself. Processing issues have established increased attention in recent years.

 

Background背景

 

The environment rules from 1970 to 1980 was firstly noticeable by the risks to deal with individual conditions, followed by central stage being given to stop harm to the environment happening in the period. The agenda of the Federal Government's 1971 environment policy was important, which were in future to be accomplished by active administrative law in international environmental law. The main aim was to protect the environmental needs to continue healthy and to live a life in human self-worth and to save the water, soil, air and trees from pollution. The real aim was the removal of harm and detriment affected to the environment by human activities which came in more forcefully in the front only in the 1980s as a result of specific cases of harm, and became known as the "clean-up problem". [2] 

 

There are many historical stages that go to make up modern environmental law. This is all because of environmental law has been quickly developed in concern to environmental problem. This fast change in the world through the industrialisation and economic development go side by side with the scientific discoveries having a very good impact on the environment of the world. But there is one thing which cannot be overlooked that the each country has made its own special support to the international environmental law.

 

For this the international organizations made some general principle and rules of international environmental law that guide and affect the shape of international environmental law. The general principal and rules of international environmental law as reflected in the treaties, the binding acts of international organizations, state practice, and soft law commitments are main basis of international environmental law. These principles are applicable to international community's all members through the variety of activities which they carry out or authorize and in respect of protection of all aspects of the environment. Article 3 of the 1992 climate change convention lists `principles intended to guide the parties'. The EC treaty, as modified in 1986, 1992 and 1997, sets forth principle and rules of general application in article 174(2) (formerly article 130r) [3] 

 

During my research I found that there are many principles and rules in international environmental law and it's very difficult for me to describe all the principles and rules of international environmental law. Therefore I want to concentrate specifically on preventive action principle and sustainable principles of international environmental law.

 

Principal of preventive action預防措施主要

 

The main aim of this principle is requiring the prevention of damage to the environment, and to reduce, limit or control the actions which might cause or risk such harm. This aim sometimes called as "principle of preventive action" or "preventive principle". In the preventive principle a state may be under a responsibility to avoid harm to the environment within its jurisdiction. The preventive principle requires step to be taken at an early stage and, if it is possible then before harm has actually happened. the preventive principle is supported by an extensive body of domestic environmental protection legislation which establishes authorisation procedures ,as well as adoption of international and national commitments on environmental standards, access to environmental information and need to carry out environmental impact assessments in relation to conduct of certain proposed activities. This principle say that state have the duty to guarantee the activities within their jurisdiction or control do not cause harm to the environment of other state or of areas beyond the limits of national jurisdiction. The preventive principle is always related to the 'precautionary principle'. [4] This 'Preventive' approach has been recommended indirectly or directly by the 1972 Stockholm declaration, the 1978 UNEP draft principle and the 1982 world charter for nature. Preventive approach is also recommended by the many international treaties with the aim to stop the damages to the environment like 1933 London Convention, art. 12(2), 1963 Test ban treaty, 1992 Climate change convention, art 2 and many others. [5] #p#分頁標題#e#

 

This principle has been confirmed by Hungary v Slovakia case. [6] The famous Gabcikovo - Nagymaros Case under this both Hungry and Slovakia were in breach of their obligation under treaty signed on September 16,1977 between the countries about the building and process of the Gabikovo - Nagymaros system of locks on the river Danube. Hungary adjourned, next abandoned completion of project by saying that it involved serious risk to the Hungarian environment and the water supply of Budapest. The court said that it was careful that in the field of the environment protection, awareness and stoppage are essential on the account of the often irreversible character of harm to the environment and of the limitation essential in the very instrument of compensation to this type of harm. There was no trouble in knowing that the concerns stated by Hungary for its natural environment in the region affected by the project related to a necessary interest of the state. The court gave an advice to both the parties that the parties together should look once again at the effects on the environment due to operation of the Gabcikovo power plant. In particular both the parties had to find a satisfactory outcome for the capacity of water to be released into the old bed of the Danube and into the side arms on both sides of the river. This case is good example of preventive principle. State is under a duty to prevent damages to the environment within its jurisdiction. another good example of preventive principle is from India where in Ajeet Mehta v State of Rajasthan [7] where in the residential area of Rajasthan non -petitioner caused pollution in the whole locality by stoking of different kinds of fodder, and by their loading and unloading. Petitioner field a complaint against this that inhalation of such particles causes a health hazard. The Jodhpur city magistrate said that business in fodder was producing a health threat to the neighbours and ordered to close the business at that place. The businessman filed a revision petition against this decision. On the revision petition court said that keeping of fodder created pollution in the atmosphere. The court gave order to remove stoking of fodder and closed the business of fodder in that area for this task court granted him six months' time.

 

Sustainable Development Principle可持續發展原則

 

The term 'Sustainable development' was used at the time of "Cocoyoc declaration" on environment and development in the early 1970s. From that time it has become the symbol of international organisation committed to succeeding in environmentally compassionate or valuable development. To be sustainable, development must possess both ecological and economical sustainability .This indicates the way in which the developmental planning should be approached [8] . Sustainable development is normally measured to be created by the 1987 brundtland report which defined it as 'development that meets the requirements of present without compromising the capability of future generation to meet their own needs' the sustainable development comes within two concepts; first says that it is the concept of requirements in particular the essential requirements of world's poor to which prime priority should be given and second one says that it is the idea of limitation imposed, by the state of technology and social organisation on the environment's ability to meet present and future needs. Many international instruments and treaties and decision of all international court have supported directly and indirectly to the principle of sustainable development and the principle that state have the responsibility to make sure the use of natural resources should be sustainably done. The brundtland definition clearly shows that the aim of sustainable development is on improving the quality of life for human without increasing the use of natural resources beyond the capability of the environmental to supply them indefinitely. [9] In of the famous case on the sustainable development is Gabcikovo-Nagymaros case [10] where ICJ said that in the past natural resources used without paying any attention to its impact upon the environment. But with the passing of the time there has been a significant development of scientific knowledge .people have begun to understand the true nature of environmental pollution .new rules and regulation have been introduced to protect the environment. Every country must abide by the rules to confirm sustainable development. In the present case the parties must considers the demerits of the Gabcikovo power plant. The parties must ensure that the Danube river-bed gets sufficient water.it is also important that the side-arms on the both side of the river receives adequate water supply. Alan Boyle says that there is no clear reference to sustainable development in the Rio-declaration .he says that essential points are that while identifying that the right to follow economic development is a characteristic of a state's sovereignty over its own natural resources and territory. It cannot be applied lawfully without concern for the environment. Under this neither human rights nor environment protection decide the right to economic development. He said that sustainable development covers two elements which are substantive and procedural elements. The substantive elements are set out mostly in the principle 3-8 of the Rio declaration and procedural elements are found in the principle 10 and 17 dealing with public participation in decision-making. He further discuss a theory of inter-generational equity which wants every generation to develop and use its natural and cultural custom in such a way that it can be passed on to the in no worse condition than it was expected. [11] the right to follow economic development is an aspect of a state's sovereignty over its own natural resources and territory is confirmed by the shrimp/turtle case [12] where WTO appellate body noted that preamble of WTO settlement clearly recognises the objective of sustainable development and characterises that it is an idea which has been usually recognised as integration social and economic development and environmental protection. The conclusion is that the sea turtles are an 'exhaustible natural resources 'and that they have enough link with the united states to explain the final states maintenance actions in the principle. John clearly says about the features of sustainable development. He said that sustainable principle sets the agenda for the benefit of future by attempting to guarantee that environment harm is controlled and environment resources are protected. This contains attempting to settle the conflicting demand of economic and social development against environment and resources protection. It confirms that benefits of any development compensate its costs including environment costs. [13] There are some noticeable principles of the sustainable development as culled out from the Brundtland report and other international documents like Rio - declaration and agenda 21 are following

 

Inter-Generational Equity,

Use and Conservation of Natural Resources,

Environmental Protection,

Precautionary Principle,

The Polluter Pays Principle,

Eradication of Poverty,

Obligation to Assist and Co-Operate,

Financial Assistance to the Developing Countries. [14] 

 

Moreover it can be said that the duties are best common provision relating to the sustainable development. But the modern provisions are much stronger than their predecessors. But no ordinary method of liability is still there at present. The asset of the provisions differs extremely but all include certain part of decision. There are laws where sustainable development is the main liability but in most cases it is one of several duties or objectives. Some laws include qualifications and devices for arranging between duties but in others that is left to the decision maker. There is proof that in some laws the sustainable development obligation can act as the device for matching other obligations or ideas. In those cases, it could be understood as a lawful decree and provide a much required program for policymaking. [15] In the 2002 the 10th earth conference in the Rio supported the theory of sustainable development. When the theory has remained popular among the business and government very few efforts has been done to implement it. At the time of world meeting on sustainable development in the Johannesburg they implemented a proposal if implementation however unfortunately unsuccessful to deliver exact direction. [16] 

 

Conclusion總結

 

It can be argued that the existing "preventive principles" are not themselves sufficient to cope with the challenge of climate change because we have already reached a point where lot of damage to our environment have already been done. But it still remains as the primary solution since the "sustainable development" solutions cannot improve the status quo. In addition to that tougher rules need to be introduced on the part of the states. For that there has to be strong political will and determination. But whatever steps are taken, they must be taken based on comprehensive ground research and expert analysis. Again political will is important as we have seen in relation to the latest Copenhagen conference, no feasible and concrete deal was done to fight the global climate crisis. For taking up preventive and precautionary initiatives as well as sustainable development programs domestically, the government of a state is required to have similar determination. Such initiatives are also likely to create many domestic challenges. The challenges can come in the form of both social and economic. For example, if a country bans the use of poly-bags because of having faulty recycling system and wants to introduce better alternatives such as paper bags, it must ensure enough supply of paper. To do so, they cannot create additional pressure on their natural resources to produce more paper; they must introduce the technology of producing recycled paper out of wastes. Thus they will be required to bring in an updated waste management system. It has been mentioned above that this type of changes are both social and economic. In case of many of these reforms, there has to be changes in the habit of the people of that particular country and for bigger reforms that country will also require a healthy budget.

 

In the end it can be submitted that although a significant amount of recognised laws and principles exists, there are lots of unsettled areas where countries must come into agreement and plan out definitive solutions. Nevertheless, due observance of the existing rules can undoubtedly take us one step further in fighting this mounting global environmental threat.