Summary
In recent years, awareness regarding environmental problems has become increasingly important by public opinion, due to the fact that they go beyond the borders of the countries; or they are so global in scope that they cannot be tackled by national laws alone. Treaties and conventions between different countries are today the main source of international environmental laws.
Environmental administrative responsibility in international instruments.
Since the beginning of the 20th century, treaties have been signed on what today we would call environmental issues. These increased in number and scope after World War II. Among the most important examples are the International Convention for the Prevention of Oil Pollution of the Seas (1954), the Paris Convention on the Liability of Third Parties in the Field of Nuclear Energy (1960) and the Ramsar Convention on Wetlands of International Importance (1971).
The Stockholm Conference on the Environment, convened at the United Nations and held in 1972, raised political awareness of the global nature of many threats to the environment. International activity intensified, leading to the creation of the United Nations Environment Program. At the same time, the European Economic Community (today the European Union) launched a program of environmental initiatives.
The main environmental treaties signed since the Stockholm Conference include the London Convention on Dumping of 1972, the Convention on International Trade in Endangered Species of Fauna and Flora (1973), the Convention on Pollution of the Sea from Located Stations on Land (1974), the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution of 1976, the Conference on Long Distance Transboundary Pollution (1979), the Convention for the Protection of the Ozone Level (1985), the Convention for the Control of Transboundary Movements of Hazardous Wastes and their Elimination (1989) and the Madrid Protocol for the Protection of the Antarctic Environment of 1991.
Environmental administrative responsibility is regulated by all countries in one way or another, in addition to being a concern for the International Community, finding its support in some of the general principles of International Environmental Law.
One of the principles that we consider convenient to address is that of "Responsibility and reparation of environmental damages", since in the environmental field the general principles of International Law regarding the responsibility of the States and the reparation of the damages caused also govern. According to the norms of International Law, the responsibility of the States may result from the violation of an international obligation regarding the protection of the environment, in this case we are in the presence of a responsibility for an illegal act.
The codification works carried out by the United Nations International Law Commission have even included certain aggravated figures of responsibility for an illicit environmental act, such as the figure of international ecological crime of States or individuals.
Also in certain cases, States may incur responsibility for the harmful consequences of acts not prohibited by International Law (Responsibility for damages caused, even without an illegal act), but it must be recognized that the technical difficulties of the subject and the perception of The political reluctance that it produces has slowed the development of this sector of International Law, resorting in practice to attenuated forms of responsibility).
Principle 22 of the Stockholm Declaration specifically states that States must cooperate to further develop International Law regarding the liability and compensation of victims of pollution and other environmental damage that the activities carried out within the jurisdiction or under such States cause areas outside their jurisdiction. This call to action had little development; then the World Charter for Nature was oriented rather to postulate the rehabilitation of areas that are harmed as a result of human activities, forgetting any statement regarding the responsibilities that may arise.
We can also refer to the 1982 United Nations Convention on the Law of the Sea, which in its article 235 enshrined the issue of responsibility, stating that States are responsible for compliance with their international obligations regarding the protection and preservation of the environment. It also states that they will ensure that their legal systems offer resources that allow prompt and adequate compensation or other reparation for pollution damage caused by natural or legal persons under their jurisdiction.
In relation to this issue, the Rio Declaration stated: “States shall develop national legislation regarding liability and compensation for victims of pollution and other environmental damage. States must also cooperate expeditiously and more decisively in the elaboration of new international laws ”. Several conclusions emerge from this:
- First, that the State is responsible not only for its own public or private actions. In this sense, the envisaged solution that recognizes the responsibility of the State in whose territory activities that cause transboundary harm are carried out, regardless of the strictly private nature of the authors of the contamination, is maintained. Indeed, the State becomes the guarantor of the protection of the environment and, therefore, of its reparation when an aggression occurs. Secondly, the State is responsible not only for the activities carried out within its territory, but also Wherever you exercise control, think, for example, of ships, planes or space objects of your nationality or missions sent to Antarctica.The principle under review goes beyond the interstate nature of transboundary pollution and compels States vis-à-vis the international community. In effect, the duty not to cause damage to the environment does not arise only in front of the other States but also in front of the areas located outside any national jurisdiction: the high seas, the air space, the seabed, the cosmic space and the antartida.
As we can see, there is no doubt that the general rules of international law existing in the matter are also applicable in this particular area; and that the very principle of responsibility and reparation for environmental damage, undoubtedly constitutes one of the principles recognized in international environmental law.
Another of the principles closely linked to administrative liability is the principle of restorability, in which it is stated that in terms of liability it covers both damage and injury and the common ownership of environmental goods does not have to distort this principle. For their part, there are other criteria that require the repair of damage in kind. We can say that we live in a world in which all damage is liable to be compensated financially, and so it is with the environment.
But unlike other areas in which, in general, the person who receives the economic amount is free to replace or not the damaged thing, in environmental matters, effective restoration is essential and not optional for the administrator of the damaged property, be it the administration or a private individual, given that environmental assets are jointly owned and, in accordance with the foregoing, the environment cannot be determined and choose to have its economic compensation allocated to other uses. Despite this, there is unacceptable confusion about the irreparableness of environmental assets that does not adjust to reality.
This is caused by two phenomena: First, some environmental movements present environmental damage as irreparable in order to capture public attention.
On the other hand, judges and experts have not correctly developed the techniques for repairing environmental damage and its economic evaluability. This problem can be solved with a simple adaptation of the known techniques to environmental specificity.
We believe it is necessary to mention the principle of common, but differentiated responsibility, which comes from International Law but can be applied to interregional or interlocal relations at the state level. This principle is based on the fact that we all have the biosphere in common, but not all of us contribute in the same way to its destruction. The fair thing is that the responsibility is provided to the use or abuse that is made of it, regarding this is raised in principle 7 of the Rio Declaration:
“The States have contributed in different measures to the degradation of the Environment, so they have common but differentiated responsibilities. Developed countries recognize their responsibility in the international search for sustainable development, in view of the pressures that their societies exert on the environment and of the technologies and financial resources available to them. ”
Finally, and in relation to the general principles of International Environmental Law, we must say that administrative responsibility is related to the aphorism that has become general as a principle: the polluter pays.
Regarding it, we can state that this was first regulated in chapter 8 of program 21 in the Report of the United Nations Conference on the environment and development; however, it acquires greater prominence in environmental policy when it is addressed in Article 130 of the Treaty on the European Union, which states: "
The principle means that the polluter must bear the costs of the measures taken by public authorities to reduce pollution and achieve a better distribution of resources and ensure that the environment is in an acceptable state. In other words, the cost of these measures must be reflected in the cost of the products and services that cause contamination when they are produced and / or consumed. These measures should not be accompanied by subsidies that could create distortions of competition in international trade and investment. "
The “polluter pays” principle, due to the seriousness of the effects of a polluting action, has led to some corrections:
- The administration authorizes certain levels of polluting emissions, declaring themselves legal, upon payment of an amount that, in whole or in part, will be used to correct or eliminate the contamination. Here we must add that, on the one hand, authorizations must not exceed the self-regenerating capacity of the biosphere or the limits of what can be assumed by the technical means available to eliminate the effects of pollution. The seriousness of the consequences and the impossibility of testing in many In cases, the authorship or causal link requires that the administration charged with public budgets must face the necessary corrections. This applies in very few cases; the hole in the ozone layer or desertification are effects of actions that are not easily individualizable and, therefore, we all suffer them,and with the common economic effort we put remedies. Sometimes they are obliged to pay those who are not responsible for the contamination; for example, the costs of water purification are the responsibility of the consumer, however, the unwanted substances to be eliminated or deactivated come from agriculture or industry, although not individually. Difficulty to determine the damage, because on many occasions it is not perceived, but by the passage of time, and by massive actions for which almost all of us are responsible, such as the greenhouse effect. Difficulty in determining the cause, even if it is a specific phenomenon, the dynamism of the resource means that in a few minutes or hours the task is almost possible. Difficulty identifying those affected except in cases of public health damage with immediate effects,the other assumptions are difficult to single out.
After analyzing these corrections, we can say that this principle is highly controversial, since environmental discourse leads us to assume that the only form of damage to the environment is pollution; and this is not true, we have, for example, the death or trafficking of protected species, or the breach of obligations to carry out certain activities that legally put into operation the liability mechanism.
Making a synthesis of this principle, we come to the conclusion that it is closely linked to environmental administrative responsibility, as it entails the following consequences for the owner of the potentially polluting activity:
- It has to pay the fines that may eventually be imposed for breaches of its obligations, it has to pay for the preventive measures that are determined, it has to stop its emissions or change the levels when legally required, it has to repair the damages and compensate the damages caused..
We cannot conclude this section without mentioning the relationship between the principle in question and justice and fiscal protection of the environment. The possibility of protecting the environment with fiscal instruments can be traced at least to the English economist ACPigou, who proposed in 1920 to neutralize by taxes the external costs of production and private consumption. This had no practical consequences until the 1970s, when the first ecological taxes were introduced and the "polluter pays" principle was adopted.
Since then, the protection of the environment through fiscal instruments has been gaining increasing acceptance to such an extent that the imposition of taxes has become the most powerful instrument to reshape national economies towards an ecological attitude.
National authorities should seek to promote the internationalization of environmental costs and the use of economic instruments, taking into account the criterion that the polluter should, in principle, bear the costs of pollution; taking due account of the public interest and without distorting international trade or investment.
In this sense, environmental taxes constituted the core of the First International Congress for Fiscal Protection of the Environment held in Madrid in 1996, with the participation of Spanish and European Union academics and political and administrative officials.
There are several reasons that seem to make fiscal protection of the environment the main but not the only tool of environmental policy: deterrent effect on the use and abuse of scarce natural resources and substances that are harmful to the environment, collection potential for the financing of environmental policy programs, an economic guiding effect towards activities that generate less damage to the environment, etc.
The fiscal protection of the environment has undoubted technical advantages over other types of measures, but it has characteristics, fundamentally its political nature, that require its prosecution not only from a technical but also an ethical point of view.
The objective of making polluters pay in full the costs of the harm they cause to others can be achieved through taxes on polluting activities.
Reinforce or replace more conventional environmental regulation systems.
Despite the wide variety of laws that exist related to the conservation of the environment, a series of common principles and trends are emerging in many jurisdictions, reinforced by the growing international cooperation that emerged in the 1970s. The need to prevent harm the environment at source is often reinforced by the requirement of the Environmental Impact Assessment of new proposals and projects.
The so-called Precautionary Principle emerged in the 1980s as a justification for environmental regulation, even in the event of scientific doubts about the exact causes of damage to the environment, and was ratified at the Earth Summit in 1992.
Today, in many countries there are laws that grant the public power the right to access information related to the environment and to participate in decision-making regarding issues that affect the environment and, increasingly, the Constitutions contain certain principles related to it, in addition to the need to ensure greater consistency between the different laws on the environment and achieve a more effective integration of environmental concerns
Despite the many international treaties currently in force on the Environment, their effective implementation remains a major challenge for the world community. The United Nations International Court of Justice can only play a limited role as arbitrator of disputes between different countries. The provisions of international treaties usually include regular meetings of their signatories and mechanisms to oblige countries to provide detailed reports on the fulfillment of their obligations; increasingly recognizing the importance of the participation of non-governmental organizations in this process.
Carmen Artigas. The principles of Environmental Law in light of the international system. - Cited by Collective of Authors. Cuban Environmental Law. - Havana, Cuba: Editorial Félix Varela, 2000. - p. 278.
Demetrio Loperena Rota. Op. Cit. p.65-66.
AC Pigou. "The Economics of Welfare". - Quoted by Ana Yabar Sterling. Environmental Taxation. - Barcelona, Editorial Cedecs SL, 1998. p.245.
