Edited by Michael Faure
Foreword to Volume VI
It is a true pleasure for me to introduce this fascinating volume on the principles of environmental law. To assemble a volume on a topic which seems at first blush more theoretical, or even abstract, is by no means an easy task. Yet the editors and contribut-ing authors have created an excellent collection of essays covering all relevant aspects of the principles of environmental law.
Dealing with those principles is undoubtedly complicated. On the one hand, principles are by nature vague and not always concrete; on the other hand the principles of envi-ronmental law also constitute the foundations, the true backbone, on which the entire environmental legal system is built.
In their Introduction the editors rightly mention that not only is environmental law a relatively young and new discipline, but the same is undoubtedly the case for environ-mental principles. A few decades ago, most of the principles were unheard of. As a result, it is only relatively recently that those principles have been elaborated and developed, largely as a result of legal doctrine, but partially also via case law from numerous jurisdictions.
The present volume demonstrates the existence of no less than 25 principles of envi-ronmental law. For good reasons the editors did not limit themselves to such traditional and more familiar principles as prevention at source, or polluter pays, but also drew upon related domains including international cooperation and good governance, which have also contributed principles of crucial importance for environmental law and policy.
The editors and contributors have, in the first instance, provided legal interpretation of the specific principles addressed in the volume. But they have gone further to present the principles in a broader context and to relate, for example, the polluter-pays principle to economic analysis and interpretation. Similarly, the precautionary principle is presented in the context of risk analysis. It is precisely through such a multi-disciplinary approach towards environmental law principles that a richer interpretation can be provided.
The principles of environmental law can be found in various legal sources. To an important extent they have been incorporated in international environmental agree-ments, as is made clear in the chapters contained in Part 4 of this volume. Treaty makers appear to attach great attention to the principles in the context of international conven-tions. But in addition, as is made clear in Part 3, principles of environmental law can also be found at the domestic level. Valuable examples from six jurisdictions are provided to show how the principles have also been integrated in national settings.
Critical voices could always ask to what extent principles are at all able to shape environmental policy in a concrete manner. The problem is that to a large extent envi-ronmental principles may guide the policy-maker in creating specific obligations in envi-ronmental law, even when no explicit reference to environmental principles is included in the relevant text or legal instrument. Environmental legal principles may therefore often play an important, although largely hidden, role. That may be the case, for example, for the important shift from a fault-based approach towards a strict liability framework for p. xvenvironmental harm. In the background of that evolution the polluter-pays principle has undoubtedly played an important role. In addition, as is also stressed in the editors’ concluding chapter, environmental principles are becoming increasingly important in practice. On the one hand, as illustrated in Part 5, courts sometimes rely on environmen-tal principles to allow access to justice for (potential) victims of environmental harm or to interpret specific obligations applicable to those conducting activities that may entail environmental harm or damage; on the other hand, the principles play an increasingly important role in international practice, as the chapters in Part 6 clearly show.
Those who would argue that principles have little or no practical relevance should just look at the debates that have taken place concerning the importance of the precaution-ary principle, as explained in Chapter VI.13. Widespread opposition once existed in the United States to the very concept of the precautionary principle, as critics insisted that one could only refer to a precautionary approach, but not to a precautionary principle. Already that resistance against the concept of a ‘principle’ shows that principles have moved beyond the level of being of merely symbolic importance and are now also play-ing an important role in environmental law practice. Moreover, even the symbolic value of principles cannot be underestimated. After all, legal rules to an important extent have an expressive value. The mere fact that in some legal systems, legislators or even consti-tutional drafters have expressly included environmental law principles, is of profound importance: it expresses the fundamental significance that drafters of legislation and constitutions attach to environmental protection. And the same is of course the case to the extent that principles are incorporated in international documents. The incorpora-tion of principles of environmental law in a particular piece of legislation or a treaty makes the theoretical foundations clear, both to policy-makers who must design and implement specific environmental obligations as well as to those – resource, industrial and commercial operators, among others – who must comply with those obligations.
The chapters contained in this volume make clear that the principles of environmental law have gone through a large evolution in recent decades and have to an important extent matured. The principles of environmental law are here to stay. They provide an important backing for the entire environmental legal system. Moreover, it can be expected that the role and importance of these principles of environmental law will only increase in legislative policy-making, in legal practice and in legal education.
It is to be hoped that the excellent chapters contained in this volume will play an important role in that respect.
Encyclopedia of Environmental Law