ABSTRACT
Fundamentally, law has a serving function. A legal system cannot on its own initiate and monitor social change, however, it can formulate some parameters for the direction and extent of social change. If such parameters are clear enough and reflective of what society feels strongly about, they will be effective. If they are unclear or ignorant of social realities, they will have little impact. It is crucial, therefore, to define those parameters clearly and realistically. The parameters in the area of environmental law are those environmental principles that are legally recognized. This is not exclusively determined by lawyers, but by decision-makers in a broadest sense. Experts in environmental sciences belong to this group, but also those in philosophy and ethics, anthropology, economics, politics and other disciplines. They all contribute to what counts for a legally recognized environmental principle. Environmental policy and law is charged with principles that originated in such an interdisciplinary context and eventually transformed to legal principles. Examples include the precautionary principle, the ‘polluter pays’ principle, the principle of cooperation, the principle of integration, the principle of transparency and public participation, the principle of common but differentiated responsibility and the principle of sustainability.1 They have in common that they are legally relevant and enforceable, albeit not necessarily in the same manner and with equal importance. But what act makes them ‘legal’ principles? There is no universal answer, as environmental law operates within different legal systems and at national, regional (EU) and international levels. Each legal system follows its own tradition to determine the legal nature of environmental
1 Sadeleer, N. de (2002), Environmental Principles (Oxford, Oxford University Press), 23; Birnie, P. and Boyle, A. (2002), International Law and the Environment, 2nd edn. (Oxford, Oxford University Press), 79; Sands, P. (2003), Principles of International Environmental Law, 2nd edn. (Cambridge, Cambridge University Press), 231; Winter, G. (2004), ‘The Legal Nature of Environmental Principles in International, EC and German Law’, in Macroy, R. (ed.), Principles of European Environmental Law (Groningen, Europa Law Publishing) 9, 11.
