The Rio Declaration: Principles 15 to 27

That is a much stronger rule than the text. The Indian version attaches to absolute liability, which the Court had created in 1986, and it adds restoration cost to compensation. A candidate should be able to state both the Rio formulation and the Indian one and say which is which.

Principle 17: environmental impact assessment

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.

Three qualifications. It is a national instrument, so the Declaration leaves the design to each State. The trigger is a likely significant adverse impact. And it applies where the activity is subject to a decision of a competent national authority, so it attaches to a permission rather than to an activity.

In India it became the environmental impact assessment notification of 1994, replaced by the notification of 2006, made under section 3 of the Environment (Protection) Act 1986. Principle 17 is the clearest instance in the whole Declaration of a principle becoming a working legal procedure in a domestic system.

Principles 18 and 19: notification

Principle 18. States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States, and every effort shall be made by the international community to help States so afflicted.

Principle 19. States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect, and shall consult with those States at an early stage and in good faith.

These two are the procedural counterpart of Principle 2. Sovereignty carries a responsibility not to damage others; these principles say what a State must do about it in advance and in an emergency. Chernobyl in 1986 is why Principle 18 exists in that form.

Principles 20 to 22: who participates

Principle 20. Women have a vital role in environmental management and development, and their full participation is therefore essential to achieve sustainable development.

Principle 21. The creativity, ideals and courage of the youth of the world should be mobilized to forge a global partnership.

Principle 22. Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation.

Principle 22 is the one to use. It is the international foundation for the recognition of traditional knowledge and of community forest rights, and it connects directly to the chapter on custom in this book and to the Forest Rights Act 2006 and the Biological Diversity Act 2002.

Principles 23 to 27: conflict, peace and cooperation

Principle 23. The environment and natural resources of people under oppression, domination and occupation shall be protected.

Principle 24. Warfare is inherently destructive of sustainable development, and States shall respect international law providing protection for the environment in times of armed conflict and cooperate in its further development.

Principle 25. Peace, development and environmental protection are interdependent and indivisible.

Principle 26. States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.

Principle 27. States and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the further development of international law in the field of sustainable development.

Worked example

MU sets "Precautionary Principle in environment protection" and "Polluter pays principle" as short notes.

For either, the shape is the same and it is worth learning once: the Rio text with its qualifications; what the Supreme Court made of it in the Vellore case; the difference between the two, which is the reversed burden for precaution and the restoration cost for polluter pays; the statutory ratification in section 20 of the National Green Tribunal Act 2010; and one case in which it decided something.

That is five moves in three hundred words and it is far more than a definition.

What these principles do NOT do

Principle 15 does not reverse the burden of proof. The Indian version does. Keep them apart.

Principle 16 is not a rule of liability. It is an instruction about internalising costs, hedged three ways. The liability rule in India is absolute liability, to which polluter pays was attached.

Principle 17 does not prescribe a procedure. It says an assessment shall be undertaken, as a national instrument, leaving the design to the State.

Distinctions that carry marks

Quick revision

• Principle 15: precautionary approach, according to capabilities; lack of full scientific certainty shall not be a reason for postponing cost-effective measures against threats of serious or irreversible damage.
• Principle 16: internalisation of environmental costs and economic instruments, the polluter bearing the cost in principle, with due regard to the public interest and without distorting trade.
• Principle 17: environmental impact assessment as a national instrument, for activities likely to have a significant adverse impact and subject to a decision of a competent national authority.
• The Indian additions: the reversed onus in precaution, and restoration cost in polluter pays. Both come from the Vellore case, not from the Declaration.
• Principle 22: indigenous and local communities have a vital role because of their knowledge and traditional practices. The foundation for the Forest Rights Act 2006 and the Biological Diversity Act 2002.
• Principles 18 and 19 are the procedural counterpart of Principle 2: emergency notification and prior notification of transboundary effects.

Test yourself

1. State Rio Principle 15 and identify its four qualifications.

That in order to protect the environment the precautionary approach shall be widely applied by States according to their capabilities, and that 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. The qualifications are: an approach rather than a rule; applied according to capabilities; triggered only by serious or irreversible damage; and protecting only cost-effective measures.

2. What did the Supreme Court add to the precautionary principle that Rio does not contain?

The reversal of the burden of proof. In the Vellore case the Court held that the onus of proof is on the actor or the developer to show that his action is environmentally benign. Nothing in Principle 15 says that, and it is the addition that makes the principle operative in litigation.

3. Contrast the polluter pays principle as Rio states it and as the Supreme Court applies it.

Rio Principle 16 says national authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should in principle bear the cost, with due regard to the public interest and without distorting trade. The Supreme Court in Vellore held that absolute liability for harm to the environment extends not only to compensating the victims of pollution but also to the cost of restoring the environmental degradation. The Indian version is a rule of liability; the Rio text is an economic instruction.

4. Which principle became a working Indian legal procedure, and how?

Principle 17, on environmental impact assessment as a national instrument. It became the environmental impact assessment notification of 1994, replaced by the notification of 2006, both made under section 3 of the Environment (Protection) Act 1986.