IMPACT OF INTERNATIONAL ENVIRONMENTAL LAW IN INDIA

1. The difference between animals and humans is that animals change themselves for the environment, but humans change the environment for themselves. ~ Ayn Rand IMPACT OF INTERNATIONAL ENVIRONMENTAL LAW IN INDIA

2. 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.

3. 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: • the state has a duty to prevent trans-boundary harm, which is commonly expressed in the Latin maxim sic uteretuoutalilenum non laedasand • 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))

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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)

11. 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.

12. 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.