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. ~
. 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).)
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
“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
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,
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
‘precautionary principle’ and
„polluter pays principle’. These
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.
In the case of Hungary v Slovakia,(  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
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.
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
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
However, this principle failed to gain the
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.
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.
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
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
Analysis and Conclusion
Many important strides had been taken by the judicial
authorities in India regarding innumerable environment
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
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
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
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