India and International Environmental Law

1. India and International Environmental Law Shiju M V, Department of Policy Studies, TERI University, New Delhi

2. International Environmental Law • The conditions which have contributed to the emergence of International Environmental Law • Realisation that ecological interdependence does not respect national boundaries • Issues previously considered to be matters of domestic concern are no longer confined to national boundaries and have international implications • These can only be addressed by international law and regulation.

3. International Environmental Law • The process of developing international legal principles have been • Piecemeal • Gradual • Often reactive to particular incidents or availability of new scientific evidence

4. International Environmental Law • UNCED • Environmental concerns are categorised under the following: • Protection of various environmental media • Atmosphere • Land resources • Forests • Biological diversity • Freshwater resources • Oceans, seas and marine living resources

5. International Environmental Law • Regulation of particular activities and products • Biotechnology • Toxic chemicals • Agricultural products • Hazardous waste • Solid waste and sewerage related issues • Radioactive waste

6. Introduction to Indian Environmental law • Development has been gradual • International law and developments at the international level have influenced Indian law • Legislation • Judicial decisions • Executive decisions

7. Indian Environmental Law • Trigger Events • Stockholm Conference, 1972 • “Are not poverty and need the greatest polluters?...How can we speak to those who live in villages and slums about keeping the oceans, the rivers and the air clean when their own lives are contaminated at the source?” • Smt. Indira Gandhi

8. Indian Environmental law • Trigger events • Bhopal gas tragedy • “Social transformation occurs only when thinking humanity remains capable of suffering and the suffering humanity begins to think.”

9. Indian Environmental Law • Trigger events • Rio Conference, 1992

10. Indian Environmental Law • Article 253 has been used to enact most of the legislations in the field of environment • Air (Prevention and Control of Pollution) Act, 1981 • Environment (Protection) Act, 1986 • Biological Diversity Act, 2002 • National Green Tribunal Act, 2010

11. Role of Judiciary • Judiciary is playing a major role in the development of Indian Environmental law • Judicial activism

12. Judicial Decisions “If the mere enactment of the laws relating to protection of environment was to ensure a clean and pollution free environment, then India would, perhaps, be the least polluted country in the world. But this is not so. There are stated to be over 200 Central and State statutes which have at least some concern with environment protection, either directly or indirectly. The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which on the contrary, has increased over the years.

13. The courts are ill – equipped and it is Not their function to see day to day enforcement of law. This is an executive function which it is bound to discharge …. The effort of this court while dealing with PILs relating to environmental issues, is to see that the executive authorities take steps for implementation and enforcement of law.” Indian Council for Enviro-Legal Action v. Union of India (1996) 5 SCC 281

14. General principles and rules • Permanent Sovereignty over Natural Resources • Precautionary Principle • Sustainable Development

15. Sovereignty over natural resources • States’ sovereign right to exploit natural resources and the duty not to cause transboundary environmental damage • Principle 21 Stockholm Declaration • States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

16. Sovereignty over natural resources • Principle 2 Rio Declaration • States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental anddevelopmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

17. Sovereignty over natural resources • Reflects customary principle of international law • Advisory opinion on the legality of the threat of use of Nuclear weapons (ICJ 1996)

18. Sovereignty over natural resources • Centre for PIL v. Union of India (2012) • At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, the same can be understood as naturally occurring elements which have an intrinsic utility. They may be renewable or non renewable.

19. Sovereignty over natural resources • They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural, form. A natural resource's value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. As the State in which a natural resource is located benefits immensely from this value, natural resources are considered national assets.

20. Sovereignty over natural resources • The ownership regime relating to natural resources can be ascertained from international conventions and customary law, common law and national constitutions. In international law it rests upon the concept of sovereignty and seeks to respect the principle of permanent sovereignty (of peoples and nations) over (their) natural resources as asserted in the 17th Session of the United Nations General Assembly and then affirmed as a customary international norm by the International Court of Justice in the case opposing the Democratic Republic of Congo to Uganda.

21. Precautionary Principle • Principle 15 of Rio • In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

22. Precautionary Principle • Vellore Citizen’s Welfare Forum v. Union of India (1996) • Environmental measures by the State Government and the statutory Authorities 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. • The “onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.

23. Precautionary Principle • Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345 • It appears to us that the precautionary principle and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. • When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution

24. Precautionary Principle • On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same • Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance • Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.

25. Precautionary Principle • “In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well-known in India and, therefore, the decision in A.P. Pollution Control Boards case will have no application in the present case.”

26. Precautionary Principle Executive decision: Bt Brinjal

27. Polluter Pays Principle • Polluter pays principle • Cost of pollution should be born by the person causing pollution • Doubtful as to whether reached the status of a customary principle of international law • Principle 16 Rio • Compromise language

28. Polluter Pays Principle • Rio Declaration • Principle 16 • National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

29. Polluter Pays Principle • PPP means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of damaged environment is part of the process of sustainable development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology • Vellore Citizens Welfare Forumv.Union of India, AIR 1996 SC 2715. • Indian Council for Enviro – Legal Actionv. Union of India, AIR 1996 SC 1446.

30. Sustainable Development • Brundtland Report (1987) • Four recurring themes (Philippe Sands) • The need to preserve natural resources for the benefit of future generations (the principle of inter-generational equity) • the aim of exploiting natural resources in a manner which is ‘sustainable’, or ‘prudent’, or ‘rational’, or ‘wise’, or ‘appropriate’ (the principle of sustainable use);

31. Sustainable Development • the ‘equitable’ use of natural resources , which implies that use by one state must take account of the needs of other states (the principle of equitable use, or intra-generational equity) • 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 (the principle of integration)

32. Sustainable Development • Gabčíkovo - Nagymaros Dams [Danube Dam case (1997) Hungary/Slovakia] • The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment…..

33. Sustainable Development • ….Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.

34. Sustainable Development • There are international scholars who doubt the utility of these principles to tackle issues like global warming. For example B.S. Chimni observes: • The violence against nature represents a growing crisis of our times. The problem of global warming has come to symbolise this crisis. Today, the intrinsic and sacred unity between man and nature is subjected to market fundamentalism, leading to the dysfunctional commodification of nature. Ideally, the intrinsic relationship between man and nature should help realise full human potentiality. But this is difficult in an interaction that objectifies both humans and nature in the pursuit of profit…….

35. Sustainable Development • Both are today mere means for the rapid advancement of an unrepentant global capital. Unsurprisingly, international environmental law is unable to seriously respond to the global ecological crisis. It works with an empty concept of sustainable development that is filled with the greed of global capital. International environmental law cannot therefore bring about change in skewed global consumption patterns, which is so necessary if genuine sustainable development at the global level is to be pursued…..

36. Sustainable Development • For otherwise, as has been observed, two more planet earths will be needed to provide development for all. But consumption has paradoxically become, as I shall note presently, a principal way to overcome alienation in the age of globalisation. In the event, international environmental law cannot actualise the principle of common but differentiated responsibility to ensure that the poor in the third world realise their aspirations of a minimum standard of life.

37. Sustainable Development • International environmental law, to put it differently, is today subordinated to corporate interests, which dictate the high consumption patterns in rich countries. It cannot, therefore, bring about an accordant relationship between humankind and nature.

38. Sustainable Development Vellore Citizens Welfare Forum Vs.Union of India (1996) • The traditional concept that development and ecology are opposed to each other is no longer acceptable. "Sustainable Development is the answer…. During the two decades from Stockholm to Rio "sustainable Development" and came to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems…. We have no hesitation in holding that "Sustainable Development’ as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient feature have yet to be finalised by the International Law Jurists.

39. Sustainable Development • Narmada Bachao Andolan Vs. Union Of India (2000) • It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.

40. Sustainable Development • N.D. Jayal vs Union of India (2003) • Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ’sustainable development’ cannot be singled out. Therefore, the concept of ’sustainable development’ is to be treated an integral part of ’life’ under Article 21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, ), public trust doctrine (M.C. Mehta v. Kamal Nath , ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.

41. Sustainable Development • G. Sundarrajan v. Union of India (2013) • We have already found on facts that the KKNPP has been set up and is made functional on the touchstone of sustainable development and its impact on ecology has been taken care of following all national and international environmental principles

42. Sustainable Development • 12th Five Year Plan (2012 – 2017) • Faster, More Inclusive and Sustainable Growth • suggests that there are significant 'co-benefits' for climate action with inclusive and sustainable growth

43. Sustainable Development • Economic Survey • For the first time chapter on Sustainable Development and Climate Change (2011 -12) • Diesel subsidy: Diesel prices need a large adjustment now (as China, for example, has recently undertaken), given subsidies, pollution and public health costs. Charging high road and vehicle taxes is another option (that Singapore uses).

44. Sustainable Development • Economic Survey • 2012-13 • Financing climate change adaptation and mitigation measures • Estimates that to meet the NAPCC objectives would require Rs. 230,000 crores • Government budgetary support • Carbon taxes: National Clean Energy Fund; cess on coal • Market mechanisms: Perform Achieve and Trade (PAT) and Renewable Purchase Obligation (RPO)

45. Legislative Developments • The National Green Tribunal Act, 2010 • The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle. • Section 20

46. Thank You