Transcript Document

IMPACT OF INTERNATIONAL
ENVIRONMENTAL LAW IN
INDIA
The difference between animals and humans is that
animals change themselves for the environment, but
humans change the environment for themselves. ~
Ayn Rand
Introduction
 . The first attempt to comprehensively address environmental issues on a global level
was the UN Conference on the Human Environment, held in Stockholm in 1972.
 In recent decades international environmental law has evolved gradually, especially
through the elaboration of various rules in specific treaties. This has partly been done
through ‘disaster law’ and partly through more systematic regulation to prevent
environmental damage by proper conservation of nature and natural resources.
 Over-exploitation of natural resources, loss of bio-diversity, desertification, (tropical)
deforestation, pollution of international waters, threat of global warming, and ozone
layer depletion are among the most pressing concerns. (World Commission on
Environment and Development (1987).)
 Most of international environmental law remains in the form of soft law as it does not
permit for reservation clauses obtaining maximum consensus. The major difficulty is
faced in its implementation at the national scenario.
Trail Smelter Arbitration - Contribution to
International Environmental Law
 The Tribunal in the Trail Smelter Arbitration (35 AJIL (1941) 684) identified the basic
dilemma facing States in the international sphere, namely to what extent the exercise of
their sovereign rights must be tempered by the impact of their activities on the sovereign
rights of other States:-
“Under the principles of international law … no State has the right to use or permit
the use of territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of serious consequence and
the injury is established by clear and convincing evidence.”
 The Trail Smelter arbitration is an example of one State being liable to another for damage
caused.
 I t has resulted in two major principles:
(1) the state has a duty to prevent trans-boundary harm, which is commonly expressed in the
Latin maxim sic utere tuo ut alilenum non laedas and
(2) the “polluter pays” principle, which holds that the polluting state should pay compensation
for the trans-boundary harm it has caused. (Kiss and Shelton (1991))
Impact of Environmental Principles and Case
Laws on International and Municipal Law
The major principles that have evolved from the
various international sources and cases were the
concepts of ‘sustainable development’,
‘precautionary principle’ and ‘polluter pays
principle’. These principles are the cornerstones of
modern environmental law.
Sustainable Development:
 The concept of ‘sustainable development’ was for the first time defined
in the Brundtland Commission Report 1987.
‘Sustainable Development’ was defined as the process that meets the
needs of the present generation without compromising the ability of
future generations to meet their own needs.
 This definition was slightly modified by the UNDP Governing
Council in May 1989 and the clause ‘and does not imply in any way
encroachment upon national sovereignty’ was added to the earlier
definition.
 The Earth Summit held in 1992 can be considered the hallmark for
this concept.
 In the case of Hungary v Slovakia,( [1997] ICJ Rep. 7) famously known as
the Gabcikovo-Nagymaros case, the International Court of Justice
acknowledged the concept of sustainable development as a legal norm in
the field of international environmental law.
 The majority judges in this case agreed that sustainable development was a
legal norm. However, they felt that this concept had still not acquired an
erga-omnes character in international environmental law and hence was
not binding.
 The World Trade Organisation decided Shrimp-Turtle
case(WT/DS58/AB/R 12 October 1998) was the first case where a decision
was given in favour of environment and not trade.
Polluter Pays Principle:
 The Polluter Pays Principle was first conceptualized by the
Organisation for Economic Co-operation and Development (OECD)
nations in their economic policy for environmental harm in the 1970s.
It was the responsibility of the polluters of environment to pay for
remedial measures and to keep the environment unharmed.
 This was done through internalization of environmental harm by the
imposition of green taxes or, if an environmental harm occurred, then
wrongdoer had to pay damages.
 However, this principle failed to gain the status of a legal norm due to
the limited membership of countries in OECD.
 Principle 16 of the Rio Declaration recognized this principle without
naming it.
 However, this principle was made subject to public interest and without
distorting international trade and investment.
 The Rio Declaration has put emphasis on the principle of internalization
of costs, i.e., an economic concept which consists in charging a polluter
for all the costs that his activity has created for other persons.
 It has resulted in a shift in liability from criminal sanction to economic
and financial deterrence.
 This principle failed to assume a legal status in international law because
public interest varies from place to place. This dilutes the normative
character of the principle.
 Thus, this principle can become effective only if incorporated in national
legislation.
Precautionary Principle:
 Before the Stockholm Conference, 1972, it was thought that nature has the capacity to
cure itself—the curative model. Later it was realized that nature has its own threshold
level. In order to protect and restore the original state of the environment, money is
required.
 Hence there was a shift from the concept of ‘assimilative capacity’ to the ‘polluter pays
principle’.
 The polluter pays principle failed to assume a legal status in the international fore which
led to the development of the Precautionary Principle.
Where environmental harm is likely to occur, preventive measures should be taken. In
all situations where there is no scientific certainty of harm, one should take precaution
and decision in favour of environment.
 Principle 15 of the Rio Declaration enumerates on precautionary principle. This has
however not helped in assuming a normative character.
Indian Perspective:
 The Supreme Court in Vellore Citizens Welfare Forum v Union of India (AIR 1996 SC
2715) and Karnataka Industrial Areas Development Board v C. Kenchappa (AIR 2006
SC 2038) accepted the concept of sustainable development and polluter pays principle
as the law of the land. However, the Supreme Court did not give a definite meaning to
the concept to suit the needs of India.
 A major case involving environmental concern is the Bhopal Gas Leak Case (AIR 1990
SC 273). The night of 2-3 December 1984 saw the residents of Bhopal caught up in the
world's worst industrial disaster. MIC leaked from the high-tech factory of UCIL in
Bhopal, killing over 2,500 and leaving more than 200,000 people maimed for life.
 The Supreme Court rejected the rule of strict liability in this case and in its place
applied its new doctrine of “absolute liability”. According to this, where an enterprise is
engaged in a hazardous or inherently dangerous activity, the enterprise is strictly and
absolutely liable to compensate all those who are affected by any accident, and such
liability is not subject to any of the exceptions under the rule of strict liability.
 The court accepted the validity of the absolute liability principle in the Bichhri Village
case. (1996 (3) SCC 212)
Analysis and Conclusion
 Many important strides had been taken by the judicial authorities in India regarding
innumerable environment related matters.
 The Environment Impact Notification and the National Environment Appellate
Authority can be seen as a direct offshoot of judicial concerns and court directions in
this regard.
 The higher courts have responded to this reality by developing a rich environmental
jurisprudence, the cornerstone of which has been the fundamental right to clean
environment as an integral part of right to life under Article 21 of the Constitution.
 The enactment of the National Green Tribunals Act 2010 is another positive stride in
this area. The Act of Parliament defines the National Green Tribunal Act, 2010 as
follows:
An Act to provide for the establishment of a National Green Tribunal for the effective
and expeditious disposal of cases relating to environmental protection and conservation
of forests and other natural resources including enforcement of any legal right relating
to environment and giving relief and compensation for damages to persons and
property and for matters connected therewith or incidental thereto.
 The concept of Public Trust is also be helpful. It guarantees the protection of all
environmentally fragile lands by making them the joint property of the entire
community so that everyone can equally enjoy its benefits and work for its
protection.
 In M.C Mehta v Kamal Nath ((1997) 1 SCC 388), Public Trust Doctrine was made
law of the land. It said state had duty to protect national resources as trustee of the
people as these resources are for the common use and enjoyment of the society.
 The need of the hour is active concern for the environment or saving the
environment for the environment’s sake.
 Precautionary measures need to be adopted because financial compensation after
damage is already done to the environment is not going to help us in the long run.
 In today’s generation, development is indeed a vital part of society but this
development should not be at the cost of the ecology or environment.
 A balance needs to be struck and government being the trustee of all natural
resources is to protect it.