International Environmental Law and its Scope and Implementation in India

Written by Shivin Mathur and Richa*

Abstract

The problems related to environment had begun since the inception of mankind on Earth. The advancement of technology and the burgeoning population of the world only added to the environmental problems. The paper explains how Environmental issues are one of the biggest global challenges in the world at present and are something which needs to be addressed immediately. Paper furthers by drawing a solution to these problems and to justify as to why it is the need of the hour as all the countries on the globe are affected by it. Finally paper concludes by stating that Due to the high level of concern regarding the global environmental issues, international environmental law has expanded its horizons in the recent times in the world and in India.

Keywords: Environmental, Development, Rights, Jurisprudence, Principles.

Introduction

The Environmental (Protection) Act 1986, defines environment as one which “includes water, air and land and inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property.”[1]

Environmental law is a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities. Some environmental laws regulate the quantity and nature of impacts of human activities: for example, setting allowable levels of pollution or requiring permits for potentially harmful activities. Other environmental laws are preventive in nature and seek to assess the possible impacts before the human activities can occur.[2]

International Environmental Law:

The customary international law comprises of practices prevalent in countries and followed in the association from extended time. The abovementioned principle forms the base of international environmental law. The principle put down in international declarations also becomes element of international customary international law, like the Stockholm declaration, 1972; Rio Declaration 1992; The World Charter for Nature 1982; the third UN Conference on the law of the sea 1982. Numerous principles applied in the settlement of environmental cases (principle of sustainable development, polluter pays principle, precautionary principle, principle of intergenerational equity) are the results of principles affirmed in these international conferences. These principles have also become foundation of a lot of decisions in national and international courts.

Article 38 (1) (d) of the statute of the International Court of Justice (ICJ) has also recognized judicial decisions as one of the sources of international environmental law. The ICJ has decided many important cases involving environmental issues and put the environment on firm footing, some of them are the United Kingdom v Albania[3], Lake Lanoux case[4], Belgium v Spain[5], Australia v France[6], Aerial Herbicide case[7], Pulp Mills case[8] and others.[9]

Protocols, conventions and treaties have been considered as the primitive source of International Environmental Law.

 

The Expansion of International Environmental law in India

Through Article 253 the legislature possesses exclusive right to create laws for implementation of any treaty, agreement or convention with any other nation or nations or any resolution made at any international convention, association or body. The legislature gets a comprehensive right to make laws regarding global issues by this provision. This power overrides the “normal and federal State” jurisdictional lines and distribution of legislation power between the state and the centre.

Although the rights conferred upon the citizens through Part 3 of the Constitution i.e. the fundamental rights cannot be superseded by this right of the parliament. According to the idea of the constitution the centre’s executive power is identical to the legislative power of the legislature (Article 73). The Supreme Court states that treaty making is to be revered as an executive power and not a legislative action.[10]Although Article 51 of the constitution hasn’t been used by the courts in environmental matters but it has to be noticed that the courts have summoned Article 48-A (duty of the state to safeguard environment to expand a fundamental right to environment as an element of the Right to life under Article 21.[11]

Post referring to the International Covenant on Civil and Political Rights, 1966 and the Universal Declaration of Human Rights, 1948 the Supreme Court in People’s Union for Civil Liberties v Union of India stated that: “It is almost an accepted proposition of law that the rules of the customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law”

The Environment Protection Act, 1986 and the Air (Prevention and Control of Pollution Act, 1981 have been passed to implement the decision taken at Stockholm in 1972 known as Stockholm Declaration, 1972. The Public Liability Insurance Act, 1991 was passed to fulfill the commitment made by India “to develop national laws regarding liability and compensation for the victims of pollution and other environmental damages” called upon as per decision at the UN Conference on Environment and Development held at Rio De Janeiro in June 1992. Similarly, the National Environment Tribunal Act, 1995 provides that the Act has been passed as “decisions were taken at the UN Conference on Environmental and Development held at Rio de Janeiro in June 1992, in which India participated, calling upon states to develop national laws regarding liability and compensation for the victims of pollution and other environmental damages.” The CFC Substance rule of 200 notified under the EPA, 1986 has been passed to implement the Montreal Conference, 1987, Vienna Convention for the Protection of the Ozone layer, 1985 and the Kyoto Protocol, 1977 etc.[12]

International law as a rule signifies the ‘laws of nations that states feel themselves bound to observe. In simple understanding, international environmental law comprises those substantive, procedural and institutional rules of international law which have the primary objective of the protection of the environment like the Precautionary and the Polluter Pays Principle.[13]

These Two vital principles of international environmental law, namely the precautionary principle and the polluter pays principle had been involved through judicial review in India:

  1. Precautionary Principle-

The precautionary principle gives the appliance of international environmental law where there is technical ambiguity. The precautionary advance started to come into view in international legal mechanisms in the mid-1980s. This principle got formal acknowledgment in Principle 15 of the Rio Declaration, which states that ‘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.[14] Starting with Vellore Citizens’ Welfare Forum v Union of India[15], the Supreme Court has overtly acknowledged the precautionary principle as a principle of Indian environmental law. More recently, in A.P. Pollution Control Board v M.V. Nayadu[16], the court discussed and elaborated upon the expansion of the precautionary principle.[17]

  1. Polluter Pays Principle

The polluter pays principle is the requisite that the costs of pollution should be taken up by the person who is accountable for causing pollution and its resulting costs. The polluter pays principle in treaty law can be followed back to some of the first instruments establishing minimum rules on civil liability for loss resultant of harmful actions.[18] According to Principle 16 of the 1992 Rio Declaration ‘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 environment.’ The Supreme Court has moved towards sustaining a position where it estimates environmental losses not on the merit of an assertion put forth by either party, but through an assessment of the condition by the court, keeping in mind factors such as the deterrent nature of award.[19]

Public participation in environmental decision making:

An important principle that takes birth from the international environmental law is the active participation of the public in environmental decision making. For creating a healthier environment public participation in decision making is of paramount importance. The Public participation can not only secure the needs of the present but also cater to the needs of the future generations. Thus, public participation is very critical in saving the environment. The public opinion acts as pressure group on the government and helps the government in framing policies. The public interest groups take up environmental litigation at a different level and thus, enlighten developmental proponents, decision-makers and judicial and quasi-judicial institutions.[20] The prospective harm to the environment is also covered by the watchful eyes of the public, through their participation. However, there are allegations against the public participation that it is merely an empty slogan and it can only create hindrance to the government. These allegations against the public participation isn’t true, the positive outcomes of the participation is totally neglected. The public participation assists the state to accomplish its duties towards the environment. Whenever there is a public participation in the matters related to environment, views from all the sides are represented, pros and cons of the project is discussed, thus creating an equilibrium between both the developmental gains and environmental ethics. This leads to the improvement in the quality of the decision making by the judiciary. Public participation also creates wider acceptance of the decision taken by the judiciary and generates confidence of the people on the decision making process. All such cases of violations which are submitted to the Ministry of Environment & Forests/SEIAAs for environmental clearance would be referred to the respective Expert Appraisal Committee (EAC) / SEACs for their consideration bases on the merit of the proposal. After the EAC / SEAC have made its recommendations on the project, the proposal will be processed on file for obtaining the approval of the competent authority.[21] These stages of proceedings now include public hearing.

In United States of America, it is important to produce an Environment Impact Statement (EIS) along with the federal actions. The EIS is prepared after consulting with the experts and the public. It gives an opportunity to the public to acquaint themselves with the consequences of the project.

While in United Kingdom, an act namely The Control of Pollution Act 1974 provides for a local inquiry with a view to preventing or dealing with the pollution, or noise at any place.[22] The plans regarding the waste disposal are made only after consulting with the public. The discharge of the waste materials or pollutants into a water body is done only after the publication of the notice, confirming the consent of the public.

In USSR, the activists of environmental groups included comments on draft legislation, inspections to assist environmental law enforcement, spreading awareness, and endeavors in beautification, influencing facility sitting, and promoting the establishment of parks and protection of wildlife. [23]

Shortcomings in the application of international standards and environmental law in India-

Environmental law in India although being on the rise is not free from defects. It continues to have a hasty response to environmental problems and has been short sighted in its attitude.

Lack of vision, in foreseeing environmental problems, not evolving appropriate policies and plans besides non dynamic, reactive legislative laws, in tackling the complex and ever challenging environmental issues and problems appear to be at the root of the activist stance of the courts of law.[24]

The flaws which lead to such low conformity of environmental rules in India are:

1) Frail enforcement:

Absent or simply formal inspections on enforcements leads to a very weak reaction from organizations and environment administrations transcends into crisis administration. Every mine in a 5 km radius of Lake Badkal and Surajkund was ordered to be shut by the court only after a report was put forward by NEERI on mining pollution in MC Mehta v UOI. In that area, mining activities had been going out devoid of any sort of permission required by the Air Act and also the Mines Act of 1952 and Explosives Act were clearly being dishonored. Only after a PIL was filed blaming the Pollution Control Board of Haryana for failing to implement rules and norms did the judgment come out.[25]

2) Financial Constraints-

Financial constraints are a big hampering factor. The minimal funding is one of the root causes of bad monitoring and enforcement. Pollution Control Boards are deprived of proper infrastructure like labs, equipment, apparatus etc. which is vital for the proper performance of their duties.

3) No Flexibility in laws-

The manner in which rules and standards are devised is very over determined and thus the levels of conformity tend not to be very high. The compliance with these standards should be absolute. The status of environment keeps on falling as there is no firm enforcement because the standards which are generally fixed are neither scientifically based and nor performance based. Also, as the standards set are so over determined, organizations hesitate in investing on techniques which will curb pollution.

4) Low standards of monitoring-

The Environment Protection Act mandates Pollution Control Boards of states to be armed and equipped with technologically and scientifically capable Board of members. But the real picture is in contrast with most of the members of the boards’ of Pollution Control Boards hail from bureaucratic background and do not have any form of technical expertise. The systematic calculation of pollution levels spawning from organizations and industries also becomes very tough as the manpower which is employed is technically and scientifically unsound/ill equipped.[26]

5) Low standards of discipline and penalizing-

If firms are not in conformity with the rules and policies formulated then the fines that are forced are very small and do not consider the degree of conformity and amount and quality of emissions. A firm has to pay only a penalty of Rs. 10,000 or bailable sentence of only up to 3 months in case of violations, irrespective of the level of pollution. Pendency of litigation further deteriorates the problem. For example In Rajasthan, only two convictions have taken place in spite of the fact that almost 7000 cases have been filed against air and water polluters.[27]

CONCLUSION

While transcending into a strong world economy, India faces difficulties in its ability to check its local, state and nationwide pollution levels. The extent to which it can obligate itself to improve and execute international environmental and climate change strategies is the pertinent question right now for India to answer.

Some signs have been positive with international environmental law influencing and having a good contact with municipal law in India. Post the 1980s, India has signed innumerable international treaties and all the branches of the sovereign (judiciary especially)   have been well influenced encouraged by the international environmental law. Integration of international environmental law with domestic law has occurred to some extent by the help of the legislation passing certain Acts and the judicial activism on the part of the apex judicial body of India. Not only the modern ecological jurisprudence is being shaped but also it is being enhanced at the same time by exploiting and making the most of international environmental law principles. At this juncture it is yet a process going on and has led to positive incorporation of international environmental law into Indian environmental law.

But at the same time, despite the fact that India has signed various multilateral treaties and to some extent of progress in the country of environmental law, much is yet to be achieved at executing and implementing. It is vital for India to be exhibiting that they are domestically conforming to the Internationals rules and standards with supplementation of International Declarations, Conferences and Treaties and are the most major developing economy of the world. India now faces the challenge of achieving its essential and fundamental needs of its ever-rising population, protect its flora and fauna, meet the power requirements of the people and yet work along the principle of sustainable development to make sure that coming generations receive the inheritance so that they also can benefit from the gifts of nature which past and current generations have so blatantly abused.

 

*4th Year Students, Institute of Law Nirma University, Ahmedabad.

[1] The Environmental (Protection) Act 1986, §. 2 (a).

[2] Environmental Law and Multilateral agreements, available at: http://www.unep.org/training/programmes/Instruc tor%20Version/Part_2/Activities/Interest_Groups/Decision-Making/Core/Environmental_Law_Definitions_ rev2.pdf, last seen on 2/3/2015

[3] United Kingdom v Albania, 1949 I.C.J. 4.

[4] France v Spain, (1957) 24 I.L.R. 101.

[5] Belgium v Spain, 1970 I.C.J. Rep. 3.

[6] Australia v France, 1974 I.C.J .Rep. 253.

[7] Aerial Herbicide Spraying, Ecuador v Columbia, 1-4-2008 (ICJ).

[8] Argentina v Uruguay (Pulp Mills on the river Uruguay), 4-5-2006 (ICJ).

[9] Prof. Satish C. Shastri, Environmental Law, 405 (4th ed.).

[10] Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 S.C.C. 400 (India).

[11] MC Mehta v Union of India, A.I.R. 1988 S.C. 1037 (India).; Rural Litigation and Entitlement Kendra v State of UP, A.I.R 1988 S.C. 2187 (India).; Kinkari Devi v State of Himachal Pradesh, A.I.R. 1988 4 (India).

[12] Supra 26, at 431

[13] Divya Soni, The Scope and Limits of Environmental Laws and International Treaties in India, Manupatra, manupatra.com/roundup/318/…/The%20Scope%20and%20limits.pdf (last visited Mar. 10, 2015).

[14] Rio Declaration on Environment and Development, http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163.

[15] Vellore Citizens’ Welfare Forum v Union of India, A.I.R. 1996 S.C. 2715 (India).

[16] A.P. Pollution Control Board v M.V. Nayadu, A.I.R. 1999 S.C. 812 (India).

[17] S. Jagannath v Union of India, A.I.R. 1997 S.C. 811 (India).

[18] Indian Council for Enviro-legal Action v Union of India, A.I.R. 1996 S.C. 1446 (India).

[19] MC Mehta v Union of India, A.I.R. 1987 S.C. 965 (India); Vellore Citizens’ Welfare Forum v UOI, A.I.R. 1996 S.C. 2715 (India).

[20] Supra 6, at 352

[21] Office Memorandum, http://www.moef.nic.in/downloads/public-information/ia-28092011.pdf.last seen at 8/3/2015

[22] Control of Pollution Act 1974, § 96.

[23] Nocholas G Yost, ‘The Citizen’s Role in Nature Protection in The USSR’, Envt’l. L. Rep. 50051 (1981).

[24] Evaluation of Environmental Laws and Proposals for Reforms- A Report, prepared by the Centre for Environmental Law Education, Research, and Advocacy Research Team (Mumbai) (1998)

[25] MC Mehta v Union of India, A.I.R. 1996 S.C. 1977 (India).

[26]Yohei Hirashima, Environmental Governance in Selected Asian Developing Countries, Int’l. Rev. Envtl. Strategies 200 (2001)

[27]Id.

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