“Polluter Pays” Principle-Does It Have Any Status?
Author: Raashika Kapoor, Amity Law School (GGSIPU), Delhi.
Abstract
The polluter pays principle has evolved as one of the guiding principles in Environmental Law. This principle has played a pivotal role in holding the polluter responsible for his environmental wrongdoings. Polluter pays principle in its literal interpretation means that the polluter will pay for the pollution or damage caused by his actions. This article gives a glimpse on the said principle.
INTRODUCTION:
In simple terms it suggests that the costs associated with the pollution are to be borne by the polluter. This principle finds its origin in a number of suggestions made by the Organisation for Economic Cooperation and Development (OECD), in 1972 while dealing with International Economic Aspects of Environmental policies. It covers pollution prevention and control costs.[1] Polluter pays principle establishes that a state is required to pay for the damage it causes[2], even if the damage results from acts that do not violate customary or conventional international law.[3]
INTERNATIONAL PERSPECTIVE:
The polluter pays principle is strengthened as one of the fundamental principles and obligations that the Contracting Parties should apply in Environmental Law matters.[4]This has also been enshrined in Principle 16 of Rio Declaration[5] and has been codified in numerous treaties and international agreements.[6]
The ICJ has recognized the legitimacy of the polluter pays principle[7] and has even acknowledged that the obligation to make reparations is an important principle of international law.[8] In Public International Law, a breaching State is obligated to make full reparation for the injury caused by its wrongful act.[9]A State that violates principles of international law in its conduct must be directed to compensate[10] for the damage.
The polluter pays principle could enhance economic efficiency[11] in cases of Trans-boundary Harm, where one state has to compensate the other for causing pollution or damage in the latter’s territory. It thus holds states under a strict liability standard of care.[12]The principle does not have the status of a principle of general international law and merely acts as a general guideline of public international law.[13]
INDIAN PERSPECTIVE:
In Vellore Citizens Welfare Forum v UOI,[14] this principle has been addressed as a part of Customary International Law. The principle was formally accepted in India in 1996[15]and has been recognized as a part of the domestic law of the country.[16] The polluter pays principle however does not entitle a polluter to polluter and then pay for it.[17]
Furthermore, it is not the duty or responsibility of the government to bear the burden or meet the costs. Doing so would shift the burden on the taxpayer. Therefore, the polluter is liable to pay all damages associated with his actions.[18]
CONCLUSION:
Polluter Pays Principle has been successful in mitigating environmental harm by imposing liability on the wrongdoer. Despite this success, it has been met with criticism. The principle is unclear and ambiguous in nature. There is neither an accepted mechanism of recognising the polluter, nor any formula for computation of costs.
The principle has not gained the status of customary international law. Therefore, it would be justified to anticipate that with more judicial opinions and law on this subject matter, it would soon become a non-negotiable doctrine in Environmental Law.
[1]http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/GD(92)81&docLanguage=En
[2]Organization for Economic Co-Operation and Development, Council Recommendation on the Implementation of the Polluter-Pays Principle, 14 I NT’L LEG. MAT. 238 (1975).
[3]Organization for Economic Co-Operation and Development, OECD and the Environment 8 (1986).
[4]Convention and Protection and use of Transboundary Watercourses 1992 art. 2(5)(b).
[5]Rio Declaration on Environment and Development, 1992.
[6]Report of the United Nations Conference on Environment and Development, U.N. Department of Economic and Social Affairs, Agenda Item 21, ¶ 2.14 & 30.3, U.N. Doc. A/CONF.151/26 (1992); Convention on Trans boundary Watercourses, supra note 57, at art. 2(5)(h), Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) prin. 16.
[7]Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 (July 8), at 503.
[8]Chorzów Factory (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 13, at 47 (Sept. 13).
[9]ILC Draft. art. 36.
[10]Rio Declaration, UNCED, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) [hereinafter Rio Declaration]; David Wirth, Symposium: The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 0 L.J. 817 (1994).
[11]Alan E. Boyle, “Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.) International Responsibility for Environmental Harm, pp. 363, 369.
[12]Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
[13]Declaration of the Human Environment, Report of the UN Conference on the Human Environment (Stockholm, 1972), UN doc. A/Conf.48/14/Rev.1; Alan E. Boyle, “Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.) International Responsibility for Environmental Harm, pp. 363, 369; Brownlie’s Principles of International Law, James Crawford (ed.), 7th ed., 2008 (OUP), p. 359; Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 281.
[14](1996) 5 SCC 647
[15]Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 p. 215
[16]Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647 p. 660
[17]Research Foundation for Science (18) v. Union of India, (2005) 13 SCC 186 p. 200
[18]M. C. Mehta vs Kamal Nath &Ors (1997)1 SCC 388.
La Senatus Scriptors 