2.2.1     Principles of International Environmental Law

Ban of Injury

States are allowed to use their territory under its sovereignty. However, this principle is now limited to the extent as its own territory cannot be used so that other states would significantly be harmed. A landmark decision has already been set in 1938 to the international environmental law - the famous Trail Smelter Case. It was about the sulfur dioxide emissions from a nearby melt in Canada. These emissions have led to crop failure on the territory of the United States. The court of arbitration found that no state has the right according to the rules of international law or the United States to use its territory so that the territory of another state is affected by emissions; either by damage to the property or persons. However, there must be a serious case and the damage must be fully demonstrated.

This prohibition of damage to other States has meanwhile undergone extensive development. Also areas should be covered, that do not belong to any state (so-called State Blanks). This applies, for example, the Antarctic, the high seas (Art. 192 ff., 194 UNCLOS) and the space . This is based on principle 21 of the Stockholm Declaration of the United Nations Conference on Human Development in 1972. It states that it is "the sovereign right of States to exploit their resources pursuant to their own environmental policies and ensure their accountability that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction ".

Responsibility of States and International Environmental Law

Although a fundamental clarification is given in terms of environmental damage by States, still many questions and many issues remain unresolved. This is the case for the standard of liability as the validity, the scope and the reach of an international precautionary principle and on the evidence of the damage to alternate end demands. Strict liability cases are rare, especially when that was contractually agreed. One example is the making of objects in space (Art. II Convention on International Liability for Damages Caused by Space Objects). Apart from the problematic of enforcement in the international arena without military means, the existing liability law is applicable only within narrow limits. Where environmental damage is caused by the interaction of many, both private and state-owned enterprises, it is difficult to attribute this individual tortfeasors and use them for liability (Example: ozone hole).

Polluter Pays Principle in International Law

A major economic and legal principle is that in principle the polluter should bear the cost of pollution (Principle 16 of the Stockholm Declaration). This principle characterizes mainly the civil liability for dangerous activities. It is a general principle of international environmental law Preamble to the Convention on transboundary effects of industrial accidents (Preamble to the Convention on transboundary effects of industrial accidents).

The Precautionary Principle in International Environmental Law

"To protect the environment, States use the precautionary principle widely and according to their abilities. Is there a risk of serious and irreversible damage the lack of scientific certainty shall not be a ground for postponement of cost-effective measures to prevent environmental degradation." In this form, the precautionary principle is formulated at international level as Principle 15 of the Rio Declaration. This principle can be found in a plethora of conventions and declarations, as in the preambles to the Vienna Convention for the Protection of the Ozone Layer (1985) and its Montreal Protocol (1987); as well in the Convention on the Protection and Use of Transboundary Watercourses and Lakes of 1992 (Art. 2, para. 5). In the frame of UNFCCC, the Member States (3 Art. 3 para.) Commit to meet precautionary measures to forestall the reasons of climate change, to prevent it or minimize and mitigate its adverse effects. And the International Sea Tribunal has acknowledged the precautionary principle in its decision of 27 8.1999 (customary international legal principle).

Principle of Cooperation in International Law

The principle of cooperation is already found in earlier agreements concerning the sharing of international watercourses; it is now a feature of the international environmental law. After Principle 24 of the Stockholm Declaration the international environmental protection is to take place in a spirit of co-operation. After Principle 7 of the Rio Declaration on Environment and Development of 1992 " States cooperate in a spirit of global partnership to maintain the health and integrity of the Earth's ecosystem and to protect and restore it". After Principle 13 " States cooperate faster and more decided to develop further international law regarding the liability for and compensation of adverse effects of environmental damage, caused by activities within their jurisdiction or its control to areas beyond their jurisdiction. "The Convention on Biological Diversity contains a corresponding duty of cooperation with regard to state-free spaces (Art. 5).

A special form of cooperation obligation is the obligation of States to inform each other about impending or existing environmental damage. Many agreements contain such a requirement (s. example Art 198 UNCLOS; Art 13 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.); moreover, the obligation to provide information can already be considered as part of customary international law today. The requirement to make an environmental impact assessment which is accompanied by information obligations increasingly finds entrance into international treaties (s. for example, the Convention on Environmental Impact Assessment in a Transboundary Context of 1991). The framework of an international obligation of cooperation in environmental law also contains the specific responsibility of developed countries for environmental degradation in Principle 7 of the Stockholm Declaration and esp. in the UNFCCC. Modern international law even demands the consideration of the interests of future generations, which is far beyond the traditional conception of international law as between state law.       

Hazardous Activities in International Law

 Partially an own regime for particularly dangerous activities is required. In particular, a strict liability should apply as the Convention on International Liability for Damage Caused by Space Objects arranges (Article II.), not the usual in international environmental law applicable – objectified – standard for debts. What exactly falls under these dangerous activities is not easy to determine. Decisive is the extent of the potential damage, may be entering also be unlikely. There is agreement in any case with regard to including the nuclear energy. Not only the adhesion but also the duty of cooperation of the states holds even more for polluting activities. Numerous bilateral and multilateral agreements, such as the resolution adopted in consequence of the Chernobyl nuclear accident, the Convention on Early Notification of a Nuclear Accident 1986, set out detailed provisions regarding content and addressees of the immediate delivery of information (see Art. 2, 5, 6).

In the same year the Convention on assistance in cases of a nuclear accident or a radiation emergency was signed concerning general enhanced cooperation obligations for nuclear accidents. It contains detailed provisions on the aid of the International Atomic Energy Agency to be granted and on the support of other countries and international organizations. Also the growing problem of disposal of toxic and hazardous waste and the practice, this to discharge in the Third World, led to the conclusion of some international agreements.

The Organization of African Unity accepted the Bamako Convention on the ban on imports and the control of transboundary movement and treatment of hazardous waste in Africa in 1991. Then, (4 Art. para. 1) to import such waste in Africa is illegal and a criminal act. Under the Basel Convention on the control of Transboundary Movements of Hazardous Wastes and their Disposal by 1989, States may not carry wastes to countries that prohibit their import. If there is no prohibition, the export is permitted only after written consent of the importing country and generally not south of 60 south latitude. Both conventions also contain detailed provisions on intensive cooperation, including extensive information requirements.