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Report No. 186

The Principle of Prevention

The Prevention Principle takes care of reckless polluters who would continue polluting the environment in as much as paying for pollution is a small fraction of the benefits they earn from their harmful acts or omissions.

Prevention of pollution must therefore take priority over compelling the polluter to cough up.

The Train Smelter case was an international award which directed Canada to install protective measures to stop pollution in the neighbouring countries arising out of a foundry. This was treated as a transboundary obligation under international law. This principle was engrafted in Principle 21 of the 1972 Stockholm Declaration on Human Environment which stressed the 'responsibility (of States) to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction'. This was reiterated in Principle 2 of the Rio Declaration. This principle is incorporated in the 1979 LRATP Convention, the 1985 Vienna Convention for the Protection of the Ozone layer and the 1992 (B) and the Preamble of the UNFCCC. This is also a part of E.C. Law.

There are treaties based on this principle on the subjects of marine environment, highseas fisheries, protection of rivers, atmospheric pollution, the Alps, Antarctica etc. (See Environmental Principles by Nicolas de Sadeleer, Oxford 2002, pp 62 to 65.

The concept of sustainable development draws support from the Prevention Principle as stated in ICJ's ruling in Gabakovo-Nagymares case, relating to dam on the Danube.

National laws have also recognized this principle. Swiss, Danish, Belgian, French, Greek laws incorporate this principle. So does the US 130Pollution Prevention Act, 1990 (ibid, Nicolas de Sadeleer, page 70 to 72). Best available Technologies (BAT) is another aspect of this principle. Environment Impact Assessment is the crucial procedure which seeks to ward off prevention. This is reiterated in Principle 17 of the Rio Declaration.

Proposal to Constitute Environment Courts Back

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