Transboundary Environmental Litigations: A Study

Transboundary Environmental Litigations: A Study

SYNOPSIS

Chapterization:

Introduction: natural resources are scarce on this Earth, eventually who has the right over them is a question of concern since the inception of concept of nation-state. Hence, in this chapter the researcher would introduce various questions that are pertinent to be answered to secure our environment and the significance and foot prints of exploitation of the natural resources and the environment giving rise to litigations for attaining the balance.

Chapter I:  Concept of Transboundary Environmental Litigations. This chapter will deal with introduction of theory and significance of environmental security and transboundary environmental litigations and their inter-relation.

Chapter II:  Principles Governing International Transboundary Litigations. This chapter will deal with the international scenario as far as transboundary environmental litigations are concerned in lieu of the internationally developed concept of environmental litigation e.g. the role of ICJ and other international bodies.

Chapter III: Institutional Framework and Decision Making. This chapter will deal with the international framework for governance if of transboundary environmental litigations.

Chapter IV: States’ Responsibility and Liability. State has the greatest role especially when it comes to limited and shared resources and to provide justice to all because all the people on earth have equal rights as far as natural resources are concerned by the virtue of being born.

Chapter V: Sethusamuduram Ship Channel Case (Sri Lanka v. India). This chapter will deal with the analysis of the Sethu Case and the author will critical analyse the facts of the case with the application of the principles governing transboundary environmental litigations.

Chapter VI: Conclusions and Suggestions.  The author seeks to suggest solutions to the key concern of this paper along with the conclusion of the analysis of  Sethusamuduram Case.

 

INTRODUCTION

“The fundamental law of human beings is interdependence. A person is a person through other persons.”
— Archbishop Desmond Tutu

Interdependence is the whole crux of international environmental law. From air, to water to land, from flora to fauna, from living beings to non-living things, all are interdependent. Nevertheless, with the division of resources, especially land, and emergence of the concept of nation-state, people have started focusing on self-reliance. However, the concept of self-reliance is a utopian principle and does not really exist in reality, rather, it can be said, that one may live independent of the other but one can never live independent of environment. In fact, human existence is a subset of environment itself. But since the world has now been divided into several nation-states it becomes a shared responsibility of all to take care of the environment.

Limited resources, unlimited wants and untameable desires are the reasons why the preservation of environment shall be the key concern of every nation-state. The focus shall be on shared and equitable use of resources. But he principle of territorial sovereignty and abuse of rights have for long been the masters of the planet Earth. Hence, people (nation-state) find it difficult to co-operate with each other. There might have been changes in the consumption pattern of the people but the resources remain limited only. Hence, nation states try to share these limited resources and put them to its best use to achieve maximum utility out of it.

However, the environment works on the universal principle of cause and effect only. Therefore, every time that we exploit the resources it comes back to us in various forms like environmental degradation , air, water, noise etc, pollution, soil erosion etc. Hence there is a need for planned use and management of resources. but with the increased industrialization and the increased needs for economic development has overpowered the environmental concerns. Hence, when one state tries to exploit its own natural resources or the shared ones, it tend to produce certain environmental effects. Thought the profit out of these exploitative activities is not shared but the depletion and degradation of the environment is always shared. This unequal distribution of burden gives rise to transboundary environmental disputes.

This project report primarily focuses on the concept transboundary environmental litigations. Firstly, the author will discuss the environmental principles that govern the transboundary environmental litigations. Secondly, author approaches towards institutional framework. Thirdly, author will discuss the responsibility and liability in the international environmental concerns. Fourthly, the author will analyse the Sethusamuduram Channnel Project Case (Sri Lanka v. India) within the ambit of the research of this project. Lastly, author will conclude the project accompanied by some suggestions.

 

CHAPTER I

CONCEPT OF TRANSBOUNDARY ENVIRONMENTAL LITIGATIONS

Earlier, International law was a ship without rudder, Jeremy Bentham was the first one to bring in the concept of codification of whole international law but that was considered to a utopian principle then.The premier set of rules that emerged in the international context governing the transboundary environmental issues was during the evolutional era of non-navigational uses of international watercourses of the states.

The term transboundary means ‘from across the border’ and the matter of the transboundary impacts emerged due to the concepts of common area, common heritage and shared and limited resources.

Territorial sovereignty was once considered to be absolute, but it has become relative i.e. a state carrying on any venture in its territory shall not produce adverse reverberations on the rights of others. Further, the correlation between the transboundary impact and the prohibition bestowed on state had become even more conspicuous in the Trail Smelter Case  where the ‘significant injurious impact’ was emphasised on and was laid down to be the deciding factor for deciding the culpability of the defaulter state. Further in the Island of Palmas Case (United States v. The Netherlands, award in 1928) it was laid down that the states do have an exclusive right to conduct any activity on their own territory but that right has a corollary duty attached to it to protect the right of others while exercising their own.

All transboundary environmental litigations are contingent upon the episode of a harm caused to one state by the activities undertaken by the other. Hence, to understand the concept of transboundary environmental litigations it is imperative to comprehend ‘harm’, ‘transboundary harm’ and ‘risk of significantly causing transboundary harm’.

  • Risk of significantly causing transboundary harm:“Risk of causing significant transboundary harm includes risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm”

It is important to consider that the risk and harm are to be read parallel to each other. Hence, for an activity to be considered‘transboundary harm’ it shall be in tandem with the risk so much so that the combined effect should reach a level that is deemed significant. (Emphasis supplied)

  • Harm:“Harm means harm caused to persons, property or the environment
  • Transboundary harm:“Transboundary harm means harm caused in the territory of or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States concerned share a common border”

The term ‘harm’ is highly debateable as scholars question whether it will fit in just the economic standards only. The ICJ its 1965 judgment in the Trail Smelter Case had recognised just the economic harm only. In this case, the Trail Smelter, which was owned and run by a Canadian corporation, was alleged for producing fumes of sulphur dioxide, which polluted the air in US, hence, US filed this case against Canada. The court decided the case in the favour of US but while doing so emphasised on two things: firstly, the states duty not to infringe the environmental rights of other while exercising its own, and secondly, the compensation to the US for the environmental damage caused by the Trail Smelter. Here, the Hon’ble ICJ impressed more on the monetary rather than the intrinsic value of the environment that was degraded.

The scenario has changed now, as today, ‘harm counts both damage to person and property and damage to intrinsic value of the environment, which consists of both individual components and whole ecosystem.’ However, there has not been any set criterion to decide or decided threshold of the harm per se. Hence, it remains subjective rather open ended as the governing law bears more on the decision making process.

CHAPTER II

PRINCIPLES GOVERNING TRANSBOUNDARY ENVIRONMNETAL LITIGATIONS

Following are some of the legal principles that a state always needs to adhere to while exercising its rights:

  1. Principle not to cause transboundary environmental damage:it implies duty of a state not to allow or tolerate any activity carried out within its jurisdiction that may cause damage to environment of other states or of areas beyond its national jurisdiction. this was for the first time laid down on a global level in Principle 21 of the 1972 Stockholm Declaration . The large-scale acceptance of the no harm rule has lead to its inclusion in the customary international law.
  2. Environmental Impact Assessment:Every state carrying out such an activity, which is likely to cause serious transboundary environmental damage, has to undertake the environmental impact assessment (“EIA”). This requirement of the state had been laid down in Principle 17 of the Rio Declaration 1992. This has been made an obligation of the all the states to carry out EIA, this has been most significantly seen in many international environmental treaties especially the ones which are supported by the UN Economic omission for Europe (UNECE) in 1991. The obligation to conduct EIA is an offshoot of the preventive principle, as states accordingly have to assume preventive measures so as not to infringe the right of other.

EIA is a comprehensive and systematic scrutiny of unsympathetic impacts that may occur in derogation of the environment due to an activity. Hence, the focal point of the EIA study remains the possible impacts that any activity would generate in the environment provided it is allowed, this helps to formulate policies accordingly for mitigating those effects. However, there are no cemented standards, hence, it is up to the discretion of the person undertaking the study or it might also be done according to the customary methods or as may be prescribed by the state concerned.

  1. Precautionary Principle:Principle 15 of the Rio Declaration laid down acceptance of a precautionary approach in cases where there is high risk of serious or irreversible damage. It has been controversial since its inception in the international law. It is argued that: ‘The precautionary principle may well be the most innovative, pervasive, and significant new concept in environmental policy over the past quarter century. It may also be the most reckless, arbitrary and ill-advised.’
  2. Polluter pays principle:Principle 16 of the Rio Declaration states ‘[n]ational authorities should endeavour to promote the internalisation of environmental costs and the use of economic instruments, taking into account that the polluter should , in principle bear the cost of pollution’. As per Sands this principle is open-ended as far as inclusion of cost and the circumstance where it will not apply. For the application of this principle one need to do the cost benefit analysis of the environmental damage including the non-marketed environmental goods and services.
  3. Common but differentiated responsibilities of states:Principle 7 of the Rio Declaration has laid down the responsibility of the states towards protection of the global environment as a linear and relative concept because it talks of ‘cooperation’ and ‘global partnership’. It also states the responsibility of the state to be common but differentiated, this shows the legislative intent to bear liability according to the capacity and ability of a state to prevent, reduce and control the threat. This would ensure that one is not burdened in excess while other in dearth, which likely would have happened if the responsibilities were to be distributed equally. But this principle is hardly seen adhered to by the states, hence, it cannot be concluded that it has become a part of the customary international law.
  4. Sustainable Development:the Stockholm Declaration on Human Environment emphasised on integration of economic, environmental and social justice issues. The term sustainable development (“SD”) was first defined in World Conservation Strategy as ‘the integration of conservation and development to ensure that modification to the planet do indeed secure the survival and well being of all the people’. Then the concept of SD gained prominence during 1987 when it was used by World Commission on Environment and Development in its report which then made it a part of international policy framework followed by the deliberation on it by the Brundtland Commission. But it was only in 1992 UN Conference on Environment and Development (UNCED) in Rio De Janeiro, Brazil, that the concept was officially embedded on the development paradigm. Further, ‘Articles 14, 19(1) (g), 21, 26, 32, 47, 48-A, 51 (A) (g), 226, 253, Seventh Schedule and Eleventh Schedule of Indian Constitution has relevance with the environment protection and sustainable development.’SD generally means to use the resources in such a manner so as not to harm the environment or the rights of others, at the same time, preserve some for the coming generations.
  5. Sustainable use: This is an extension to the principle of sustainable development. The principle of sustainable use had come to be adhered to at a global level but certainly does not have any normative value in isolation, for example, the Convention on Biological Diversity of 1992, which not has married sustainable use with components of biological diversity (flora, fauna and other natural resources).
  6. Intergenerational Equity:This principle is based on the idea that ‘all of us as the members of the present generation are the trustees for the resources that we use today and the beneficiaries are the future generations.’ However, this has not come to become a norm at the international platform and only acts as a guiding principle for the states while carrying on their activities.

 

CHAPTER III

INSTITUTIONAL FRAMEWORK AND DECISION-MAKING

Firstly, globally States have a ‘treaty’ practice, which has been instituted as a legal framework to govern the conduct of a state that might have a significant risk of transboundary harm. These treaties could be bilateral, multilateral or universal. Secondly, apart from the law of treaties there are decisions by international courts and tribunals, which have set-up a compliance mechanism for the international customary law and other international resolutions. Thirdly, legal tools, like environment impact assessment (Principle 17), notification (Principle 18) and consultation (Principle 19), are also there to regulate the activities of states having adverse transboundary environmental impacts.

State consent is the key to give normative value to the international customary laws related to the environment. Hence, whether a particular rule, principle or law is binding or legitimate in a particular state is contingent upon the consent of that state, to be governed by those set of rules, principles or laws.

There are international institutions, which are responsible to regulate the activities of the states globally. These institutions include a) treaty-based institutions (e.g. secritariats to multilateral environmental agreements etc.); b) UN specialized agencies (e.g. International Bank for Reconstruction and Development (IBRD) etc.); c) and UN General Assembly bodies (e.g. UN Development Programme (UNDP) etc.) and; d) institutions based on cooperative arrangements (Intergovernmental Panel on Climate Change (IPCC) etc.).

The compliance committees usually take decisions, in context of global environmental governance, as per financial mechanisms. These decisions may be legally binding or not, but definitely have potential consequences on both the state and non-state actors. The competence of the compliance committees can be derived from the multilateral environmental agreements that have been entered into between states. Apart from the compliance committees there are dispute settlement bodies as well, which also is the most famous way to resolve disputes amicably between two nation-states especially when we talk of transboundary environmental impacts. In addition, Article 2(3) of the UN Charter puts all the member states under the obligation to resolve all deputes amicably without causing disturbance in the international peace and security and at the same time meet the ends of justice (Chapter VI i.e. Articles 33-37 of UN Charter deals with Pacific Settlement of Disputes).

CHAPTER IV

STATES’ RESPONSIBILITY AND LIABILITY

Article 3 of the ILC’s Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities makes prevention of harm and minimising the risk, the prerogative of the State. This is based on the maxim of sic utere tuo ut alienum non laedas which is also reflected in Principle 21 of the Stockholm Declaration. Also, ICJ in 1997 has reaffirmed the legal character of this principle in Gabcikovo Nagymaros Case. The obligations of the states can be categorised into three  i.e. a) obligation to not do a significant harm to other; b) obligation for cooperation; c) obligation for prevention of significant harm.  (emphasis supplied)

According to Birnie and Boyle, there are three levels at which the states’ responsibilities and liabilities can be placed:

  1. Responsibility and/or liability based on fault or lack or due diligence (e.g. UNCLOS regime)
  2. Objective or strict liability and/or responsibility (e.g. Convention on Environmental Modification Techniques)
  3. Absolute liability and/or responsibility (e.g. Convention on International Liability for Damage Caused by Space Objects)

General international law has a bearing upon the development of the concept of due diligence. The concept of due diligence is considered to be relative as it dependent upon the circumstances at hand which are highly permeable.  Just like EIA , the due diligence principle is also the offshoot o the preventive principle, this conclusion can be drawn from International Law Commission’s draft Convention on Prevention of Transboundary Harm from hazardous Activities. However, there has been a dearth of satisfactory environmental protection framework as far as the evidence for/against due diligence is concerned. There is no prescribed standard of care that on has to take before venturing any activity; hence, it may not be possible all the time to attach liability to one state even after default.

The strict liability pertains to the liability irrespective of the fault, hence where a state is under the obligation not to damage the environment, and then; any breach will bear liability upon the defaulter. Absolute liability on the other hand is not contingent upon any default or breach or legality of the act, i.e. the state that is the wrongdoer will be liable in absolute sense without any escape route.

CHAPTERV

SETHU SAMUDURAM SHIP CHANNEL CASE (SRI LANKA V. INDIA)

Facts:

There is around 30km distance between the Island of Sri Lanka and India. In June 1974 India entered a bilateral agreement with Sri Lanka on the common boundary in historic waters. In March 1976, India again entered a bilateral agreement regarding maritime boundary in the Gulf of Mannar and the Bay of Bengal. Even after the two bilateral agreements between the two-transboundary states, the relations between the two are not bereft of the increasing environmental concerns in the common water areas.

The concerns over the common area came to the brim in the wake of India’s huge flagship project of Sethu Samuduram Ship Channel (SSCP), which was premiered by the Indian government on 2 July 2005. This project was important for India because it would have served the purpose of facilitation of a navigation channel through Palk Strait and Adams bridge area linking the Gulf of Mannar and the Bay of Bengal.

Sri Lanka had dubious thoughts about the project because this project would have had far-reaching consequences on its marine biodiversity and ecology as well as the livelihood of the people and communities in the disputed area disturbing the ecological balance. However, contrary to the concerns of Sri Lanka India went on to implement the project. Sipping, fishing and environment of Sri Lanka are the key areas, which were likely to be get affected by this project.   In the same concern there were three writ petitions filed in the Madras High Court. All the three petitions were transferred to the Supreme court in 2010, the case has not yet been disposed off. The EIA for the same project was also carried out in the year 2010.

 

Major contentions by Sri Lanka:

  1. The Gulf of Mannar is the one of the world’s best coastal regions, it supports most of the biodiversity in Sri Lanka and that is the reason why Sri Lanka is heavily dependent upon it for its fisheries as well as for the well-being of the fishing communities situated in the northwestern region of Sri Lanka.
  2. The area under dispute accounts for shallow waters, is the reason why, it has until now been untouched. However, once the canal is dredged it will destabilize the ecosystem due to the traffic that it will let in through Palk Bay and Gulf of Mannar.
  3. The dredged material likely to obliterate the fisheries and beaches. Activities like oil spills, any blasting or unplanned excavations will deplete the biodiversity on which the fishes rely e.g. these activities will highly affect the sea grass meadows hihc is the main food for dugongs, which is a rare species, this will affect the biodiversity of that area.
  4. The pivotal concern is that, the EIA which had been undertaken by the Indian Government, has no mention of Sri Lankan maritime and terrestrial environments. The report also does not suggest the mitigation measures to bring down any transboundary impact related risks that Sri Lanka will be  exposed to if the project gets implemented.

 

Contentions of India:

  1. This project is the most awaited one in the list of the Blue Water navy of India because it is going to help further in better security maintenance. Moreover, there is need for circum-navigation when naval crafts move from East and West India.
  2. The disputed area has long been exploited by Sri Lanka because Colombo Port is an attractive developing area in South Asia. This is the reason why, this area is attractive to all including India. Since it is a shared resource and there shall not be any monopoly of one state over it.
  3. Sri Lanka has been exploiting the strategic location for the development of the Colombo Port as the hub for South Asia. Geographically, the Colombo Port’s pre-eminent position, almost equidistant to both the west and east coasts of the sub-continent, has become attractive to both Indian shippers and importers and the main line ships plying east-west trade routes and sailing past the island.

Analysis:

S.NO. PRINCIPLE YES/NO EXPLANATION
1. Principle not to Cause Transboundary Environmental Damage No India has not followed this principle. Hence, there is violation of Principle 21 of the 1972 Stockholm Declaration.

Reason: India has no thought of the marine, biodiversity and ecological misbalance that this project is going to create in the Sri Lankan environment. Further India has not thought of the rights of Sri Lanka that are likely to be  infringed while exercising of its own.

2. Environmental Impact Assessment Yes India has carried on the EIA. However, it has not been a comprehensive study. India has violated Article 206 of UNCLOS.

Reason: firstly, as it does not have the scrutiny of the adverse environmental impacts that this project would have on the ecology of Sri Lanka; secondly, the EIA report does not have the mitigating measures that India would propose as against the potential risk that it is posing to Sri Lanka.

3. Precautionary Principle No There was no need as the nature of damage is not of serious or of irreversible in nature. On the other hand the damage is more related to the economic and livelihood rights of the people on the other state.
4. Polluter pays Principle No Since the project has not been implemented yet, pending the decision of the Supreme Court. Hence, there arises no liability on the part of India (polluter in the present case). In case India would have started the project then it would have to pay compensation in accordance with the loss of biodiversity and livelihood in the disputed area due to its acts.
5. Common but differentiated responsibilities of the states Yes In the present case both India and Sri Lanka have responsibilities towards the common-disputed area for its preservation. However, once the project gets implemented , India will have greater responsibility for the safeguard of the pristine state of the disputed area as compared to Sri Lanka. This is simply because; India is the one who would initiate the project, hence has higher liability to protect the area.
6. Sustainable development No SD principle has not been adhered to by India while considering the Setu Project.

Reason: this project was not a very well thought of project. It might have a lot of economic and militarily benefits but on the same page it is hampering the environment of the disputed area by endangering the ecological balance. Hence this project may be a very good move for economic development but not for sustainable development.

7. Sustainable use No The SetuSamudaram Project in future will diminish the sustainable use of the natural resources that are untouched. The Setu area is one of the richest biodiversities of the world. Hence, he canal will disturb the biodiversity and hence the sustainable use will not be possible. The canal may be very helpful to reap economic benefits but certainly, it does not displaces the amount to the environment that it takes from the environment.
8. Intergenerational equity Since the project is not implemented yet. Hence, it would be futile to comment on whether it will affect the intergenerational equity or not. However, facts of the case point out serious environmental threats to the biodiversity and ecology in the disputed region, hence, it may be inferred that the intergenerational equity will get disturbed.

 

Some questions to be answered:

  • Can Sri Lanka refer the matter for international arbitration?

Yes. For further enforcement of the bilateral treaties, Sri Lanka can approach ICJ or any other competent authority under the UN Convention on the Law of the Sea, both India and Sri Lanka are signatories to it. The matter is fit for arbitration because both parties  consent to the fact the interpretation and application of UN Convention is under scrutiny.

  • Is this the first of its kind case under UN Convention?

No. UN Convention has already dealt wit this kind of matter before in an Advisory Opinion for the Sub-Regional Fisheries Commission, the International Tribunal for the Law of the Sea where it was stated that it is the prerogative of the state to ensure compliance with the international fishing laws. Also in the South China Sea Arbitration the tribunal stated that it was the fault on the part of China that it failed in exercising due diligence and thereby violated that fishing rights of Philippines.

  • What are the reliefs available with Sri Lanka?

Conserving the marine resources is, more or less, part of the preservation of marine environment under the UN Conventions. In the South China Sea arbitration, use of dynamite and propeller chopping, violated the UN Convention, was highly condemned by the court.

Sri Lanka can even ask for provisional measures, say, asking India to take all preventive measures as an urgent need to prevent serious harm that is likely to be caused to the marine Environment.

 

CHAPTER VI

CONCLUSION AND SUGGESTIONS

From the above case analysis, it is clear that there exists a transboundary environmental dispute between India and Sri Lanka. It is suggested that India conducts a valid and a well-scrutinised EIA report for the project. Additionally, India shall notify Sri Lanka about the associated risks and consequences with the project and consult with Sri Lanka so that there is amicable deliberation between the two parties.

Presently the international environmental norms are vague and not fully binding on all the states, thereby providing a escape route for the defaulters and the wrong doers. Hence, the laws shall be made more certain and stringent to mitigate the wrong actions and share the burden of environmental impacts.

The jurisdiction as to the environmental cases is not certain e.g. ICJ is the default institution o try this category of cases but there is no special forum or tribunal to deal with the environment specific cases. Hence, there shall be a universal body to deal with them.

The existing environmental framework regarding the environment especially transboundary environmental impacts, are loosely framed. Bare reading of these law does not give them a binding effect. In addition, there are numerous treaties, conventions, etc. that it becomes ambiguous as to which one shall be made applicable to a particular situation. Sometimes it also may be possible that a number of them overlap when it comes to application. Hence, there shall be just one set of rule to make it more simple to understand, apply and analyse.

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