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fundamental norms _ principles of

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									         FUNDAMENTAL NORMS & PRINCIPLES OF

           ENVIRONMENTAL GOVERNANCE



A.WHAT ARE THEY?


   DERIVED FROM CUSTOMARY PRACTICES, GENERAL

  PRINCIPLES OF LAW, ECOLOGICAL SCIENCES, RULES OF

  ECONOMICS, EQUITY , ETHICS ,JUDICIAL PRONOUNCEMENTS,

  etc.

   EMBODY STANDARDS/NORMS FOR OBSERVANCE


   STEER & GUIDE LEGAL PRESCRIPTIONS

   BY THEMSELVES DONOT SPECIFY PARTICULAR ACTIONS-

   SERVE AS THEORETICAL BASES- POSITIVE RULES OF LAW

   MAY, AT TIMES, GET CHARACTERISED AS PRACTICAL

    FORMULATIONS OF THE PRINCIPLES



B.SOME GENERAL PRINCIPLES:


1.SOVEREIGNTY OVER NATURAL RESOURCES:
(Prin.21 of Stockholm Declaration-Prin.2 of Rio- Decln.)

# SOVEREIGN RIGHTS OVER NATURAL RESOURCES

# OBLIGATION NOT TO CAUSE ENVIRONMENTAL DAMAGE
(Nuclear Tests Case-Australia v.France ICJ Rep.1974, Dissenting opinion
of Judge de Castro; Trail Smelter Case-U.S. v. Canada,3 R.I.A.A(1941) )



2 PRINCIPLE OF PREVENTIVE ACTION:

Obligation to prevent damage to environment with in its jurisdiction
and the obligation to take appropriate regulatory ,administrative and
other measures- requirement of taking action at an early stage/if
possible, even before occurrence of actual damage

(-domestic envtl. legislations; Nauru v.Australia ICJ Rep. 1992; a no. of
Envtl. treaties concerning conservation and protection of Flora and
Fauna etc.)



3.GOOD NEIGHBOURLINESS & INTERNATIONAL CO-
OPERATION:
(Prin.24 of Stockholm and Prin.27 of Rio- Declns. etc.)


# SIC UTERE TUO, ET ALIENUM NON LAEDAS


# INFORMATION SHARING;

#TECHNICAL AND FINANCIAL CO-
OPERATION;
# JOINT IMPLEMENTATION etc.



C. ENVIRONMENT SPECIFIC PRINCIPLES:
                    1.POLLUTER PAYS :
-RESPONSIBILITY FOR CAUSING POLLUTION & CONSEQUENTIAL
COSTS
-THAT ENVIRONMENTAL RESOURCES ARE NOT “ FREE
GOODS”
-THAT ENVIRONMENTAL IMPACTS OF ANY AND EVERY
HUMAN ACTIVITY OUGHT TO GET EVALUATED AND
ACCOUNTED FOR

-ALLOCATION OF ECONOMIC OBLIGATIONS IN RELATION TO
ENVIRONMENTALLY DAMAGING ACTIVITIES
(-liability for nuclear damage-IAEA LIABILITY CONVENTION, 1963; 1972
OECD COUNCIL RECOMMENDATION on Guiding Principles Concerning
the International Economic Aspects of Environmental Policies, which
endorsed the Polluter Pays Principle to allocate costs of pollution
prevention and control measures to encourage rational use of
environmental resources and avoid distortions in international trade and
investment – further elaboration and adoption in 1974 and 1989-
extension to operators of a hazardous installation; adoption of the
principle by EC in its first programme of action on the environment in
1973; adopted in 1985 ASEAN Convention ;1992 Industrial Accidents
Convention described it as „ a general principle of International
Environmental Law‟ )

-THAT ENVIRONMENTAL COSTS ARE NO LONGER MERE
“EXTERNALITIES” - THEY HAVE TO BE ESSENTIALLY AND WITH
OUT ANY EXCEPTION BE “INTERNALISED” AND FACTORED IN
EVERY DEVELOPMENTAL PROCESS



2.COMMON BUT DIFFERENTIATED RESPONSIBILITY:
(Prins.9-12 and 23 of Stockholm;Prins.6&7 of Rio-


- 2 ELEMENTS: FIRST-COMMON RESPONSIBILITY OF STATES FOR
THE PROTECTION OF THE ENVIRONMENT- ‘ COMMON HERITAGE
OF MANKIND ‘, ‘ SHARED COMMONS’ , ‘SHARED CONCERN’;
SECOND, THE NEED TO TAKE ACCOUNT OF DIFFERING
CIRCUMSTANCES , PARTICULARLY IN RELATION TO EACH
STATE’S CONTRIBUTION TO THE CREATION OF A PARTICULAR
ENVIRONMENTAL PROBLEM AND ITS ABILITY TO PREVENT ,
REDUCE AND CONTROL THE THREAT- ‘ECOLOGICAL DEBT’
ARGUMENT


-APPLICATION OF EQUITY IN GENERAL INTERNATIONAL LAW


-RECOGNITION THAT THE SPECIAL NEEDS OF DEVELOPING
COUNTRIES OUGHT TO BE FACTORED IN THE DEVELOPMENT,
APPLICATION AND INTERPRETATION OF INTERNATIONAL
ENVIRONMENTAL LAW

( Montreal Protocol; Art.3(1) and (2) of UNFCCC, 1992-KYOTO
PROTOCOL, 1996;Art.20(1) of CBD; Arts.5,6(b) and 20 of UN Convention
to Combat Desertification)




           3.PRINCIPLE OF PRECAUTION:


 (-Domestic law, notably that of Germany, origin –vorsorgeprinzip ;-
Prin.15 of Rio- Declaration;1985 Vienna Convention on Protection of
Stratospheric Ozone Layer and the 1987 Montreal
Protocol;UNFCCC,1992; CBD,1992; TRANSBOUNDARY WATER
COURSES CONVENTION, 1992).

(-Areas of actual /potential Application: Persistent or acute pollution;
Climate change; Introduction of new and potentially harmful products
into the Environment-threatening Biodiversity, Biosafety ,Public health;
Food Safety; High energy Physics ; Nanotechnology etc.,)
  -   ANTICIPATION ,

  -   AVOIDANCE AND

  -   ATTACK TO AVERT/REDUCE -

   SERIOUS AND, POSSIBLE IRREVERSIBLE ADVERSE
  ENVIRONMENTAL IMPACT, - KEY ELEMENTS OF THE PRINCIPLE-

  EXCUSE OF SCIENTIFIC UNCERTAINTY NOT, AS A GENERAL
  RULE , RECOGNIZED

-ENVIRONMENTAL MEASURES MUST ANTICIPATE, PREVENT AND
ATTACK THE CAUSES OF ENVIRONMENTAL DEGRADATION
.WHERE THERE ARE THREATS OF SERIOUS AND IRREVERSIBLE
DAMAGE,LACK OF SCIENTIFIC CERTAINTY SHOULD NOT BE USED
AS A REASON FOR POSTPONING MEASURES TO PREVENT
ENVIRONMENTAL DEGRADATION



CORE ELEMENTS OF THE PRINCIPLE:-

AT THE CORE LIES THE SIMPLE INTUITIVE IDEA THAT DECISION
MAKERS SHOULD ACT IN ADVANCE OF SCIENTIFIC CERTAINTY TO
PROTECT THE ENVT. AND WITH IT THE WELL-BEING AND INTERESTS
OF THE FUTURE GENERATIONS-RISK AVOIDANCE AS THE CENTRAL
ELEMENT.
         TAKING ACTION IN ADVANCE OF FORMAL JUSTIFICATION
          OF PROOF
         PROPORTIONALITY OF RESPONSE
         A PREPAREDNESS TO PROVIDE ECOLOGICAL SPACE AND
          MARGINS FOR ERROR
         A RECOGNITION OF THE WELL BEING INTERESTS OF NON-
          HUMAN ENTITIES;
         A SHIFT IN ONUS OF PROOF ON TO THOSE WHO PROPOSE
          CHANGE
         A GREATER CONCERN FOR DYSGENIC IMPACTS ON FUTURE
          GENERATIONS
         A RECOGNITION OF THE NEED TO ADDRESS ECOLOGICAL
          DEBTS
#BURDEN OF PROOF: THE BURDEN OF PROOF OF HARMLESSNESS OF
A NEW TECHNOLOGY, PROCESS OR ACTIVITY LIES WITH THE
PROPONENT AND NOT ON THE GENERAL PUBLIC-ANY DECISION TO
INTRODUCE A NEW THING/ACTIVITY ETC., SHOULD BE UPON AN
EXAMINATION OF A FULL RANGE OF ALTERNATIVES, INCLUDING DOING
NOTHING-APPLICATION OUGHT TO BE AN OPEN, INFORMED AND
DEMOCRATIC PROCESS THAT WOULD INCLUDE AFFECTED PARTIES

-LACK OF FULL SCIENTIFIC CERTAINTY SHALL NOT BE USED AS A
REASON FOR POSTPONING COST-EFFECTIVE MEASURES TO
PREVENT ENVIRONMENTAL DEGRADATION (-Pr. 15 OF RIO-DECLN.) (-
ALSO REFER CARTEGENA PROTOCOL ON BIOSAFETY TO CBD, 2000-
Arts.10(6) and 11(8): countries can prevent import of living modified
organisms even if a specific harm resulting from such organisms can not
be identified )

-Pr. Not intended to apply to decisions under conditions of perfect
  certainty-intended to apply to situations where information is less
  than perfect (- Uncertainty as RISK and as IGNORENCE)

RECOGNITION IN INTERNATIONAL LEGAL ARRANGEMENTS:
-UN FRAMEWORK CONVENTION ON PROTECTION OF OZONE LAYER,
1985 (-Preamble)
-AGENDA 21 (-Rio Summit, 1992- Ch. 17 : apply preventive, precautionary
and anticipatory approaches so as to avoid degradation of the marine
environment, as well as to reduce the risk of long-term or irreversible
adverse effects upon it)
-CBD, 1992 (-Preamble: where there is a threat of significant redn. Or loss
of biological diversity, lack of full scientific certainty should not be used as
a reason for postponing measures to avoid or minimize such a threat)
-PRE-AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTO-
SANITARY MEASURES,1994 (Art.5(7) :In cases where relevant scientific
evidence is insufficient, Members shall seek to obtain the addl. info.
necessary for a more objective assessment of risk and review sanitary or
phyto-sanitary measure accordingly with in a reasonable period of time)
-STOCKHOLM CONVENTION ON IMPLEMENTING INTERNATIONAL
ACTION ON CERTAIN PERSISTENT ORGANIC POLLUTANTS, 2001 (
Art.8.9: COPs, taking due account of the recommendations of the
Committee, including any scientific uncertainty, shall decide, in a
precautionary manner, whether to list the chemical , and specify its related
control measures, in Annexes A, B and/or C)

-BAMAKO CONVENTION ON THE BAN OF THE IMPORT INTO AFRICA AND
THE CONTROL OF TRANSBOUNDARY MOVEMENT AND MANAGEMENT
OF HAZARDOUS WASTES WITH IN AFRICA, 1991 (Art. 4 (3) (f):parties are
required to adopt precautionary measures for waste generated in Africa,
by preventing the release into atmosphere of substances which may cause
harm to humans or the environment with out waiting for the scienting proof
of such harm)

-EUROPEAN UNION- INITIATIVE OF EUROPEAN COMMISSION- REACH (-
Registration, Evaluation and Authorization for Chemicals) PROGRAMME
TO REGULATE CHEMICALS,1998- Requires all the EU Members to register
new and existing chemicals and carry out full risk assessments(- info. as
to uses, toxicity data, production processes etc.,) to make decisions as to
continued/future use of chemicals- when scientific evidence suggests that
a substance may harm human health or the environment but the type or
the magnitude of harm is not yet known, it is preferable not to use the
substance until the scientific questions are resolved-burden of proof of
chemical’s safety is primarily on the manufacturer-if the chemical is used
in a way unanticipated by the manufacturer, downstream users such as
computer makers, paint formulators and textile importers, proof of safety
should at the threshold level of use be established- Adoption of a White
Paper on “STRATEGY FOR A FUTURE CHEMICALS POLICY, Feb. 2001

# APPLICATION IN INDIA:

*BACKDROP OF BHOPAL GAS TRAGEDY AND OLEUM GAS LEAK
 CASE-ENACTMENT OF EPA,1986

      RULES CONCERNING HAZARDOUS SUBSTANCES:-EXPORT &
       IMPORT OF HAZARDOUS MICRO-ORGANISMS,1989;HANDLING
       AND MMT. OF HAZARDOUS WASTES,1989;MANF. STORAGE AND
       IMPORT OF HAZARDOUS CHEMICALS,1989;CHEMICAL
       ACCIDENTS (EMERGENCY, PLANNING, PREPARDNESS AND
       RESPONSE),1996; BIO-MEDICAL WASTES, 1998
    EIA,1994 AS AMENDED AND RECAST IN 2006
    THE LAW CONCERNING THE COAST, CLASSIFICATION OF
       FORESTS AND PROTECTED AREAS AND THE FCA ARE IN A WAY
       ILLUSTRATIONS OF APPLICATION OF PP
    JUDICIAL PRONOUNCEMENTS: -Recognized as part of the law of
       land(Art.21)
    M.K.SHARMA v. BHARAT ELECTRONICS LTD.(1987(1) SCALE
   1049(544-45): Company required to comply with safety rules strictly
   to prevent hardship to the employees resulting from harmful X-ray
   radiation);
   VELLORE CITIZENS WELFARE FORUM v.UOI
   (MANU/SC/0686/1996: Tanneries- obligation to take precaution not
   to release untreated industrial and toxic wastes rivers and open
   spaces- cited in a host of cases like M.V.NAIDU etc.,)
   INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. UOI
   (MANU/KA/0428/1997: Grant of environmental clearance with out
   comprehensive EIA ,illegal)
   RESEARCH FOUNDATION FOR SCIENCE AND TECHNOLOGY AND
   NATURAL RESOURCES POLICY v. UOI (1999 I SCC 223:
   Consignments of hazardous and toxic substance docked in ports and
   other places ought to be disposed off, in environmentally safe manner,
   as advsed by the expert committee, as a matter of precaution)

   DIRECTION OF THE SC (Sept.22,2006: to the Genetic Engineering
   Approval Committee, not to give approvals to Genetically Modified
   products till necessary precautionary procedures and trials are
   carried out)


   LIMITATIONS:

-NO CLEAR AND PRECISE FORMULATION -PRACTICAL UTILITY OF THE
PRINCIPLE QUESTIONED- CURTAILMENT OF GROWTH OF SCIENTIFIC
& TECHNOLOGICAL INNOVATIONS

      REAL ESSENCE OF THE PRINCIPLE:

     LOOK BEFORE YOU LEAP!- SCOPE FOR TURNING
   AROUND LIMITATIONS TO ADVANTAGE.

4.SUSTAINABLE DEVELOPMENT:


1987 Brundtland Report: “DEVELOPMENT THAT MEETS THE NEEDS

OF THE PRESENT WITHOUT COMPROMISING THE ABILITY OF

FUTURE GENERATIONS TO MEET THEIR OWN NEEDS’


4 PRINCIPLES ARE WOVEN ROUND SD:
(a) INTERGENERATIONAL EQUITY:
    THE NEED TO PRESERVE NATURAL RESOURCES FOR THE
BENEFIT OF FUTURE GENERATIONS
(- the idea that the members of present generation hold the earth in trust
for future generations is well- known in International Law-Pacific Fur
Seals Arbitration, 1893;1946 International Whaling Convention;1972
Heritage Convention; ;1992 Transboundary Waters Convention;
Preamble to 1973 CITES; Art. 3(1) of 1992 UNFCCC ;Prin.1 of Stockholm:
man bears , „a solemn responsibility to protect and improve the
environment for present and future generations‟;Prin.4 of Rio- „ right to
development must be fulfilled so as to equitably meet developmental and
environmental needs of present and future generations‟)


(b) SUSTAINABLE USE:
    AIM OF EXPLOITING NATURAL RESOURCES IN A MANNER WHICH
IS „SUSTAINABLE‟. OR „ PRUDENT‟, OR „RATIONAL‟ OR „WISE‟ OR
„APPROPRIATE‟- EXPRESSIONS EXTENSIVELY USED IN
INTERNATIONAL TREATIES AS TO USE & MANAGEMENT OF NATURAL
RESOURCES(1946 Whaling Convention; ITTA; Conventions concerning
Pacific Fur Seals, Tuna, etc.;1982 UNCLOS;UNFCCC; CBD)
-EACH EXPRESSION CAPABLE OF VARIED INTERPRETATION-
EXPRESSIONS MORE IN VOGUE & USED EXTENSIVELY IN
INTERNATIONAL ECONOMIC LAW & POLICY

- NOT MUCH OF A SUCCESSFUL ATTEMPT IN TRANSLATING THE
CONCEPT OF SUSTAINABLE DEVELOPMENT INTO A PRACTICAL
CONSERVATION TOOL


(c) INTRAGENERATIONAL EQUITY/ EQUITABLE USE:
    THE „EQUITABLE‟ USE OF NATURAL RESOURCES, WHICH IMPLIES
THAT USE BY ONE STATE MUST TAKE ACCOUNT OF THE NEEDS OF
OTHER STATES
(-Prin.3 of Rio-; UNFCCC; CBD; Preamble to 1987 Montreal Protocol)
-INTENDED TO APPEASE & ACCOMMODATE THE CONCERNS OF THE
DEVELOPING WORLD – NOT SINCERELY ADHERED TO OR
RESPECTED IN PRACTICE



(d) INTEGRATION:
(Prin.4 of Rio-“In order to achieve SD , environmental protection shall
constitute an integral part of the development process and can not be
considered in isolation from it”)
    THE NEED TO ENSURE THAT ENVIRONMENTAL CONSIDERATIONS
ARE INTEGRATED INTO ECONOMIC AND OTHER DEVELOPMENT
PLANS, PROGRAMMES AND PROJECTS AND THAT DEVELOPMENT
NEEDS ARE TAKEN INTO ACCOUNT IN APPLYING ENVIRONMENTAL
OBJECTIVES
-REQUIRING „GREEN CONDITIONALITY‟ IN BILATERAL &
MULTILATERAL DEVELOPMENT ASSISTANCE(- ODs and Operational
Policies of World Bank and other Developmental and Financial
Institutions)
-ADOPTION OF DIFFERENTIATED LEGAL COMMITMENTS ON THE
BASIS OF THE HISTORIC RESPONSIBILITY OF STATES AND THEIR
CAPACITY TO RESPOND TO ENVIRONMENTAL REQUIREMENTS(-
UNFCCC)


1989 Lome’ Convention (-African, Caribbean and Pacific States-
European Economic Community: Fourth Lome’ Convention,15
Dec.1989): Art.33:
  -THE STATE PARTIES ARE OBLIGED TO STRIVE, ALONG WITH
COMMUNITY SUPPORT, TO ACHIEVE AN IMMEDIATE IMPROVEMENT
IN THE LIVING CONDITIONS OF THEIR POPULATIONS & THOSE OF
FUTURE GENERATIONS BY,
 PROTECTION AND ENHANCE MENT OF THE ENVIRONMENT &
NATURAL RESOURCES,
HALTING THE DETERIORATION OF LAND AND FORESTS,
THE RESTORATION OF ECOLOGICAL BALACE,
THE PRESERVATION OF NATURAL RESOURCES AND THEIR
RATIONAL EXPLOITATION

5.PUBLIC TRUST:
# A.48A
#M.C.MEHTA v.UOI ,1996   (-KAMALNATH CASE)

								
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