Evolution and Impact of International Environmental ekDRM (PowerPoint)

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					 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).)
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,
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
 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,( [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.
 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
 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
  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
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
 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

				
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