India and International
Environmental Law
Shiju M V,
Department of Policy Studies,
TERI University,
New Delhi
International Environmental
Law
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The conditions which have contributed to the
emergence of International Environmental
Law
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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.
International Environmental
Law
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The process of developing international
legal principles have been
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Piecemeal
Gradual
Often reactive to particular incidents or
availability of new scientific evidence
International Environmental
Law
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UNCED
Environmental concerns are categorised
under the following:
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Protection of various environmental media
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Atmosphere
Land resources
Forests
Biological diversity
Freshwater resources
Oceans, seas and marine living resources
International Environmental
Law
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Regulation of particular activities and
products
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Biotechnology
Toxic chemicals
Agricultural products
Hazardous waste
Solid waste and sewerage related issues
Radioactive waste
Introduction to Indian
Environmental law
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Development has been gradual
International law and developments at
the international level have influenced
Indian law
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Legislation
Judicial decisions
Executive decisions
Indian Environmental Law
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Trigger Events
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Stockholm Conference,
1972
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“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
Indian Environmental law
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Trigger events
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Bhopal gas tragedy
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“Social transformation
occurs only when
thinking humanity
remains capable of
suffering and the
suffering humanity
begins to think.”
Indian Environmental Law
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Trigger events
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Rio Conference,
1992
Indian Environmental Law
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Article 253 has been used to enact most
of the legislations in the field of
environment
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Air (Prevention and Control of Pollution)
Act, 1981
Environment (Protection) Act, 1986
Biological Diversity Act, 2002
National Green Tribunal Act, 2010
Role of Judiciary
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Judiciary is playing a major role in the
development of Indian Environmental
law
Judicial activism
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.
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
General principles and rules
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Permanent Sovereignty over Natural
Resources
Precautionary Principle
Sustainable Development
Sovereignty over natural
resources
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States’ sovereign right to exploit natural
resources and the duty not to cause
transboundary environmental damage
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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.
Sovereignty over natural
resources
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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
and developmental 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.
Sovereignty over natural
resources
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Reflects customary principle of
international law
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Advisory opinion on the legality of the threat of
use of Nuclear weapons (ICJ 1996)
Sovereignty over natural
resources
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Centre for PIL v. Union of India (2012)
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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.
Sovereignty over natural
resources
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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.
Sovereignty over natural
resources
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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.
Precautionary Principle
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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.
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.
Precautionary Principle
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Narmada Bachao Andolan v. Union of
India, AIR 1999 SC 3345
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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
Precautionary Principle
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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.
Precautionary Principle
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“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 wellknown in India and, therefore, the decision in A.P. Pollution
Control Boards case will have no application in the present
case.”
Precautionary Principle
Executive decision: Bt Brinjal
Polluter Pays Principle
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Polluter pays principle
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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
Polluter Pays Principle
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Rio Declaration
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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.
Polluter Pays Principle
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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
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Vellore Citizens Welfare Forum v. Union of India, AIR 1996
SC 2715.
Indian Council for Enviro – Legal Action v. Union of India,
AIR 1996 SC 1446.
Sustainable Development
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Brundtland Report (1987)
Four recurring themes (Philippe Sands)
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The need to preserve natural resources for the
benefit of future generations (the principle of
inter-generational equity)
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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);
Sustainable Development
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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)
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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)
Sustainable Development
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Gabčíkovo - Nagymaros Dams [Danube
Dam case (1997) Hungary/Slovakia]
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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…..
Sustainable Development
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….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.
Sustainable Development
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There are international scholars who doubt the utility
of these principles to tackle issues like global
warming. For example B.S. Chimni observes:
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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…….
Sustainable Development
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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…..
Sustainable Development
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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.
Sustainable Development
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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.
Sustainable Development
Vellore Citizens Welfare Forum Vs.Union of India (1996)
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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.
Sustainable Development
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Narmada Bachao Andolan Vs. Union Of
India (2000)
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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.
Sustainable Development
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N.D. Jayal vs Union of India (2003)
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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.
Sustainable Development
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G. Sundarrajan v. Union of India (2013)
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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
Sustainable Development
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12th Five Year Plan (2012 – 2017)
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Faster, More Inclusive and Sustainable
Growth
suggests that there are significant 'cobenefits' for climate action with inclusive
and sustainable growth
Sustainable Development
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Economic Survey
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For the first time chapter on Sustainable
Development and Climate Change (2011 12)
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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).
Sustainable Development
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Economic Survey
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2012-13
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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)
Legislative Developments
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The National Green Tribunal Act, 2010
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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.
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Section 20
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Thank You