International lawCreated in 1945, the United Nations is responsible for much of the current framework of international law

International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other and which includes also: (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and

(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community.[1] However, the term "international law" can refer to three distinct legal disciplines

Public international law , which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.

Private international law , or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case

Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.

The two traditional branches of the field are:

jus gentium — law of nations jus inter gentes — agreements among nations

Sources of international lawVinod (2009-2011) Page 1

Sources of International Law are the materials and processes out of which the rules and principles regulating the international community developed. They have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, and preserved in Article 7 of the 1946 Statute of the International Court of Justice.

Public international lawPublic international law (or international public law) concerns the relationships between the entities or legal persons which are considered the subjects of international law, including sovereign nations, the legal status of the Holy See, international organizations (including especially intergovernmental organizations such as the United Nations), and in some cases, movements of national liberation (wars of national liberation) and armed insurrectional movements (see insurgency). Norms of international law have their source in either 1) custom, or customary international law (consistent provincial practice accompanied by opinio juris), 2) globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or 3) codifications contained in conventional agreements, generally termed treaties. Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).

International law has existed since the Middle Ages but much of its modern corpus began developing from the mid-19th century.Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (Civil Law) and the judge-made law of England (Common Law) The fall of the Roman civilization did not result in the loss of the concepts of Roman Law. Starting in the later middle ages, unlegislated Roman law (ius commune or lex mercatoria) was applied by merchants in northern Italian city states and north-western European countries as the basis for commercial (and other) relationships. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the ILO, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the

Vinod (2009-2011) Page 2

World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.

Conflict of lawsMain article: Conflict of laws

Conflict of laws, often called "private international law" in civil law jurisdictions, is less international than public international law. It is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.

Supranational law

] The European Union

East Africa Community

There are ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law by 2010.

Union of South American Nations

Main article: Union of South American Nations

The Union of South American Nations is an organisation on the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations

Main article: Andean Community of Nations

The Andean Community of Nations is the first attempt the countries around the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969,

Vinod (2009-2011) Page 3

and nowadays consists in four countries: Bolivia, Colombia, Ecuador and Peru. It does have a supranational law, called Agreements, which are mandatory for these countries.

INTERNATIONAL ENVIRONMENTAL LAW

12th July, 2002

SHYAM DIVAN

A. INTRODUCTION

In international law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court.

If a treaty or convention does not specify an international forum that has subject matter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member state's domestic court system. This presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation provides for such suits, since the judges who decide the case are residents of the country against which it is brought, potential conflicts of interest arise.

Only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice (ICJ), countries must consent to being sued. Thus, it is often impossible to sue a country. The final question in the jurisdictional arena is who may bring a suit. Often, only countries may sue countries. Individual citizens and non-governmental organisations (NGOs) cannot. This has huge repercussions. First, the environmental harm must be large and notorious for a country to notice. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if transboundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to prove with any certainty.

The enforcement issue is one where advocates for a safer environment often find themselves stymied. Even if a treaty or convention provides for specific substantive measures to be taken by a country (many treaties merely provide 'frameworks'), specifies a forum for dispute resolution and authorizes sanctions for non-compliance, international law remains largely unenforceable. A country cannot be forced to do what it is not willing to do. One can sanction the country, order damages, restrict trade, or, most frequently, publicize non-compliance. But beyond that, if a country will not comply, there is very little to be done.

International institutions are generally not responsible for directly implementing and enforcing international environmental law, but they often play important monitoring, informational and diplomatic roles. For example, the 1992 Convention on the Conservation of Biological Diversity (Biodiversity Convention)(1) created a new

Vinod (2009-2011) Page 4

international body, the Committee on Sustainable Development (CSD). The CSD lacks the power to bring enforcement actions against either governments or private parties, but it plays a role in implementing the Biodiversity Convention. The CSD helps monitor national compliance efforts by requiring member nations to submit annual reports. Through its meetings and publications, the CSD also provides a forum to discuss and debate issues associated with global protection of biological diversity and forests.

B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW

Consider for a moment why any law is enacted -- domestically or internationally. Some would maintain that it is a moral statement about behaviour that a society cannot tolerate. Some would argue that certain conduct is outlawed to deter that conduct, which is why we also attach a penalty. Some would argue, especially in light of the inefficiencies in enforcement, that laws socialize society's members to behave in a certain way by defining a code.

What is the purpose of international environmental law -- is it a moral statement, a deterrence, or a socializing tool? If it is a moral statement, which many of the framework conventions seem to be, is it merely aspirational? Do we honestly believe that all nations will achieve all the ideals expressed in all the agreements? Or do we, as a global community, simply like to think of ourselves as the kind of people who believe in these things? If it is intended as deterrence, why are there not more international forums for dispute resolution, more international bodies empowered to enforce agreements, more substantive requirements, and more 'hard law' self-executing agreements? If there were, would any nation sign them? If it is intended as a socialization technique, is it working? Are nations more environmentally aware?

If ultimately all international environmental law is unenforceable, what good is it? Does it accomplish anything to find a country out of compliance with a treaty? What about publicity? What if the economic benefits of a project such as the Narmada Valley Project, are believed by government officials to outweigh the negative effects of the publicity?

The practice of relying on domestic implementing legislation to enforce international environmental agreements leave state parties in the position of having different obligations under the same treaty, depending on how their legislative, executive and judicial bodies interpret and implement the treaty. Is this fair? What about the costs and administrative burdens that are associated with creating and enforcing legislation? Does this put richer countries in a better position to comply with treaties?

What is the purpose of the informational roles of international institutions? Will more knowledge about the global environment and our impacts on it lead to better compliance? Or will so many new issues lead to non-compliance due to uncertainty? If it appears to the average citizen that virtually everything she does has a negative environmental impact, will she not cease to try to change any behaviour?

C. INDIA'S INTERNATIONAL OBLIGATIONS

India has obligations under numerous international treaties and agreements that relate to environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it as national law before it came into force, or by acceding to it after it has come into force. For a treaty to enter into force, the requisite number of countries must ratify the treaty, which then has the force of international law.

Vinod (2009-2011) Page 5

Specific obligations under any treaty vary, depending on the treaty itself. The nature and degree of compliance and implementation depend on a number of factors, among them: (1) the capabilities and staff of an international institution charged with coordinating national compliance efforts, if there is one; (2) the willingness of other state parties to enforce or comply with the treaty; (3) the political agenda of the government and popular support; (4) trade and diplomatic pressures brought to bear by other countries; and (5) sometimes, judicial or NGO involvement through court cases and publicity.

INDIA'S TREATY OBLIGATIONS

1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into force 23 June 1961. India ratified with qualifications, 19 August 1983.

2. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into force 21 December 1975. India acceeded, October 1, 1981.

3. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into force 17 December 1975. India signed, 16 November 1972.

4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976.

5. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978). Entered into force 2 October 1983. India ratified with qualifications, 24 September 1986.

6. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983. India signed, 23 June 1979; ratified 4 May 1982.

7. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April 1982. India ratified, 17 June 1985.

8. United Nations Convention on the Law of the Sea (Montego Bay, 1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994. India signed, 10 December 1982.

9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26 I.L.M. 1529 (1987). Entered into force 22 September 1988. India ratified, 18 March 1991.

10. Protocol on Substances That Deplete the Ozone Layer (Montreal, 1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India acceded, 19 June 1992.

11. Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force 10 August 1992. India acceded, 19 June 1992.

Vinod (2009-2011) Page 6

12. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered into force 5 May 1992. India signed, 5 March 1990; ratified 24 June 1992.

13. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March 1994. India signed, 10 June 1992; ratified 1 November 1993.

14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31 I.L.M. 818 (1992). Entered into force 29 December 1993. India signed, 5 June 1992; ratified 18 February 1994.

15. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26 December 1995; India signed, 14 October 1994; ratified 17 December 1996.

16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M. 1016 (1994). Entered into force 1 January 1997. India signed, 17 September 1996. India ratified 17 October 1996.

17. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991). Entered into force 15 January 1998.

D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW

Norms are general legal principles that are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions, and scholarly writings. The leading norms in the field of international environmental law are addressed below:

(1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains that '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".(2)

(2) Another widely shared norm is the duty of a state to notify and consult with other states when it undertakes an operation that is likely to harm neighbouring countries' environments, such as the construction of a power plant, which may impair air or water quality in downwind or downstream states.

(3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically, and disclose these conditions in a report to an international agency or international executive body created by an international agreement, and authorised by the parties to the agreement to collect and publicize such information.

(4) Another emerging norm is the guarantee in the domestic constitutions, laws or executive pronouncements of several states, including India,(3) Malaysia, Thailand, Indonesia, Singapore and the Philippines, that all citizens have a right to a decent

Vinod (2009-2011) Page 7

and healthful environment. In the United States, this fundamental right has been guaranteed by a handful of states but not by the federal government.

(5) Most industrialized countries subscribe to the polluter pays principle. This means polluters should internalise the costs of their pollution, control it at its source, and pay for its effects, including remedial or cleanup costs, rather than forcing other states or future generations to bear such costs. This principle has been recognized by the Indian Supreme Court as a 'universal' rule to be applied to domestic polluters as well.(4) Moreover, it has been accepted as a fundamental objective of government policy to abate pollution.(5)

(6) Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks. In the context of municipal law, Justice Kuldip Singh of the Supreme Court has explained the meaning of this principle in the Vellore Citizens' Welfare Forum Case,(6) which is excerpted later in this section.

(7) Environmental impact assessment is another widely accepted norm of international environmental law. Typically, such an assessment balances economic benefits with environmental costs. The logic of such an assessment dictates that before a project is undertaken, its economic benefits must substantially exceed its environmental costs. India has adopted this norm for select projects which are covered under the Environmental Impact Assessment (EIA) regulations introduced in January, 1994.(7)

(8) Another recent norm is to invite the input of non-governmental organizations (NGOs), especially those representing community-based grassroots environmental activists. This NGOs participation ensures that the people who are likely to be most directly affected by environmental accords will have a major role in monitoring and otherwise implementing the accord. This principle is mirrored in the Indian government's domestic pollution control policy(8) and the national conservation policy,(9) and is given statutory recognition in the EIA regulations of 1994. The Supreme Court has urged the government to draw upon the resources of NGOs to prevent environmental degradation.(10)

(9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and Principles of Sustainable Development. The agreement expressly recognised the principle of sustainable development, defined as using living resources in a manner that 'does not exceed their natural capacity for regeneration' and using 'natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of future generations.' The principle of sustainable development was also acknowledged in the 1987 report Our Common Future, published by the United Nations World Commission on Environment and Development. This report defined sustainable development as 'humanity's ability ... to ensure that [development] meets the need of the present generation without compromising the ability of future generations to meet their needs.' The Supreme Court(11) as well as the Indian government have recognised the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals.(12)

Vinod (2009-2011) Page 8

(10) Intergenerational equity is among the newest norms of international environmental law. It can best be understood not so much as a principle, but rather as an argument in favour of sustainable economic development and natural resource use. If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. It is our children and grandchildren who will be left without forests (and their carbon retention capacities), without vital and productive agricultural land and without water suitable for drinking or sustaining cultivation or aquatic life. Therefore, we must all undertake to pass on to future generations an environment as intact as the one we inherited from the previous generation.

Proponents of intergenerational equity maintain that the present generation has a moral obligation to manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the generations that follow. From this moral premise flow certain ecological commandments: 'Do not cut down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduce the land's regenerative capacity. Do not pollute water at levels that exceed its natural purification capacity.'

In State of Himachal Pradesh v. Ganesh Wood Products(13) the Supreme Court recognized the significance of inter-generational equity and held a government department's approval to establish forest-based industry to be invalid because 'it is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter-generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations.'(14)

(11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS),(15) developing countries, led by India, articulated the norm that certain resources, such as the deep seabed, are part of the common heritage of mankind and must be shared by all nations.

(12) The 1992 Rio de Janeiro Earth Summit articulated the norm of common but different responsibilities. With regard to global environmental concerns such as global climate change or stratospheric ozone layer depletion, all nations have a shared responsibility, but richer nations are better able than poorer nations to take the financial and technological measures necessary to shoulder the responsibility.

E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT

As mentioned, norms of customary international law evolve through custom and usage. Not all norms are of equal importance however, some being accorded the status of fundamental norms. The category of fundamental norms comes under the doctrine of jus cogens, or the doctrine of peremptory norms. The 1969 Vienna Convention on the Law of Treaties(16) serves to clarify the concept in Article 53 as follows:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is

Vinod (2009-2011) Page 9

permitted and which can be modified only by a subsequent norm of general international law having the same character.

The doctrine of jus cogens is extremely limited and extends to only a handful of norms, the most long-standing of which are the prohibitions against the slave trade, piracy and genocide. Many scholars also believe that the norm expressed in Principle 21 of the Stockholm Convention has risen to jus cogens status. Principle 21 is based on the Roman maxim, sic utero tuo et alienum non laedas, which roughly means 'do not behave in a way that hurts your neighbour.' However, again the question arises, what good does an international peremptory norm, like an international agreement, achieve?

Consider some of the other norms addressed above, such as the right to a healthful environment. Is there to be one standard by which all environments are judged, or is it a relative concept? If cutting down trees for firewood destroys the environment, but provides life-sustaining fuel, which right will prevail? Which right should prevail? How much weight does each of the two rights carry when the concept of intergenerational equity is introduced?

When considering moral ideals such as the principles of a common heritage and intergenerational equity, what incentives do countries have to try to mould their practices to achieve these ideals? How can countries be better motivated? Is saving the environment for its own sake going to appeal to the majority of people, or does there have to be a more direct benefit, like the idea that we may, by destroying an ecosystem, inadvertently destroy the cure for cancer?

What exactly is 'sustainable development'? What is 'sustainable'? Could not intelligent and informed people differ over whether producing more minerals or preserving a landscape is sustainable. If so, which is more important? And what is 'development'? Factories that employ thousands, give a country more industry with which to compete in the world market, but discharge effluents into the water and produce piles of hazardous waste. Do some countries have more of a right to development and less of an obligation to ensure sustainability and vice versa? How much more do industrialised nations need to develop? Have they not gone far enough? Who is to judge?

F. EXTRACTS FROM VELLORE CASE

At the end of a judicial career, Justice Kuldip Singh of the Supreme Court issued comprehensive directions to clean up the mess created by the leather tanneries of Tamil Nadu. In the following excerpt from this leading case, Justice Singh borrowed international law norms and applied them to the local milieu.

VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA

AIR 1996 SC 2715

KULDIP SINGH, J.:

* * *

The traditional concept that development and ecology are opposed to each other, is no longer acceptable. 'Sustainable Development' is the answer. In the International

Vinod (2009-2011) Page 10

sphere 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called 'Caring for the Earth' which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions was signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio 'Sustainable Development' has come 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. 'Sustainable Development' as defined by the Brundtland Report means 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. 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 features have yet to be finalized by the International Law Jurists.

Some of the salient principles of 'Sustainable Development', culled-out from Brundtland Report and other international documents, are inter-generational equity; use and conservation of natural resources; environmental protection; the precautionary principle; polluter pays principle; obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries. We are, however, of the view that 'the precautionary principle' and 'the polluter pays' principle are essential features of 'Sustainable Development'. The 'precautionary principle'-- in the context of the municipal law - means:

(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.

(ii) 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.

(iii) The 'Onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign.

'The polluter pays' principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country'. The Court ruled that 'Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very

Vinod (2009-2011) Page 11

nature of the activity carried on'. Consequently the polluting industries are 'Absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas'. The 'polluter pays' principle as interpreted by this Court 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. [Remedying] the damaged environment is part of the process of 'Sustainable Development' and as such [the] polluter is liable to pay the cost to the individual [who] suffers as well as the cost of reversing the damaged ecology.

[The court then set out the provision of the Constitution as well as the Water Act, Air Act and Environment (Protection) Act]. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country.

Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. For support we may refer to Justice H.R.Khanna's opinion in Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone Company's case (AIR 1984 SC 667).

The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. [The court proceeded to quote a paragraph from Blackstone's commentaries on the Laws of England (1876) in respect of 'nuisance']. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land.

G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL OBLIGATIONS

Article 51(c) of the Constitution sets out a Directive Principle requiring the state to foster respect for international law and treaty obligations. Article 253 of the Constitution empowers Parliament to make laws implementing India's international obligations as well as any decision made at an international conference, association or other body. Article 253 states : 'Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body'. Entry 13 of the Union List covers : 'Participation in international conferences, associations and other bodies and implementing of decisions made thereat.' In view of the broad range of issues addressed by international conventions, conferences, treaties and agreements, Article 253 read with Entry 13 apparently gives Parliament the power to enact laws on virtually any entry contained in the State List.

Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air (Prevention and Control of Pollution) Act of 1981 and the

Vinod (2009-2011) Page 12

Environment (Protection) Act of 1986.(17)7 The preambles to both laws state that these Acts were passed to implement the decisions reached at the United Nations Conference on the Human Environment held at Stockholm in 1972. At the conference, members of the United Nations agreed to work to preserve the world's natural resources, and called on each country to carry out this goal.

The broad language of Article 253 suggests that in the wake of the Stockholm Conference in 1972, Parliament has the power to legislate on all matters linked to the preservation of natural resources. Parliament's use of Article 253 to enact the Air Act and Environment Act confirms this view.

H. ADOPTING OVERSEAS NORMS

The Supreme Court has occasionally looked at pollution standards abroad to strengthen local environmental regulation. This is illustrated by the Motor Vehicle Pollution case filed by Mr. M.C. Mehta in the Supreme Court.

On April 16, 1999, the Supreme Court targetted diesel vehicles, which were blamed for more than 90 per cent of the Nitrogen Oxide and respirable particulate matter (RSPM) in Delhi's air. Noting that the California Air Resource Board had on 27 August 1998 formally designated diesel particulate as a toxic air contaminant, and the amicus curiae's request to suspend the registration of diesel vehicles in Delhi, the court adjourned the case to April 29, 1999 to consider submissions on the issue.(18)8

On the adjourned date a bench headed by Chief Justice A. S. Anand imposed super norms for vehicles registered in the National Capital Region (NCR), which 'appeared appropriate' to the bench.(19)9 The court required all private vehicles registered after 1 June 1999 to conform to Euro I norms and those registered after 1 April 2000 to meet the Euro II norms. Diesel taxi's were prohibited in the NCR unless they conformed to Euro II norms. The Euro norms are European Community standards that have been enforced across Europe. On 13 May 1999,(20)0 the court clarified that what it meant by the 'Euro I norms' were the India 2000 norms, notified by the Central Government on 28 August 1997. In other words, the court advanced the statutory emission norms that were to come into effect on 1 April 2000 to 1 June 1999; and introduced more stringent emission standards (Euro II) with effect from 1 April 2000. The Euro II norms were re-christened 'Bharat Stage II' standards by the Central Government and were notified through the Central Motor Vehicles (Third Amendment) Rules of 2000.

I. GLOBAL ENVIRONMENTAL GROUPS

An emerging trend in India is the impact of Global NGOs in influencing domestic environmental law and policy. This is not an entirely new development, since the assistance of say IUCN in helping the local groups campaigning against the Silent Valley project is well documented. Greenpeace reports played a role in prompting the Supreme Court of India to clamp down on the import of hazardous waste into the country for recycling. It was only pursuant to directions issued by the Supreme Court in the public interest litigation, Research Foundation for Science, Technology and Natural Resource Policy v. Union of India that the import of hazardous waste was banned. Likewise, a petition has been recently filed in the Calcutta High Court relating to the adverse environmental impact of PVC. This petition too relies heavily on a report prepared by Greenpeace. Global NGOs are attempting to spur governments into adopting local regulations on the basis of environmental standards and norms that have been invoked in jurisdictions elsewhere.

Vinod (2009-2011) Page 13

1. 1 Reprinted in 31 I.L.M. 818 (1992) and P.Birnie and A.Boyle, Basic Documents on International Law and Environment 390 (1995).

2. 2 Emphasis supplied. Reprinted in P.Birnie and A.Boyle, id. at 1.

3.

3 The fundamental right to life guaranteed under Article 21 of the Indian Constitution has been interpreted by the Supreme Court to include the right to a wholesome environment. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 424.

4.

4 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715.

5. 5 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution para 3.3 (26 February 1992).

6. 6 Supra note 4. In A.P. Pollution Control Board v Prof. M.V. Nayudu AIR 1999 SC 812 the Supreme Court traced the development of the precautionary principle.

7.

7 The EIA regulations are extensively dealt with in the Large Projects chapter.

8.

8 Supra note 5, at para 11.1.

9. 9 Ministry of Environment and Forests, Government of India, National Conservation Strategy and Policy Statement on Environment and Development para 8.7 (June, 1992).

10. 10 Indian Council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC 281.

11. 11 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC 2715.

12. 12 Supra note 9, at paras 1.1, 1.3.

13. 13 AIR 1996 SC 149, 163. Also see CRZ Notification Case, Supra note 10, where the court expressed its concern at the adverse ecological effects which will have to be borne by future generations.

14. 14 Id.

15. 15 Reprinted in 21 I.L.M. 1261 (1982).

16. 16 Reprinted in 8 I.L.M. 679 (1969).

Vinod (2009-2011) Page 14

17. 1 7 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997 SC 811, 844, 846.

18. 18 1999 (6) SCC 9.

19. 19 1999 (6) SCC 12.

20. 20 1999 (6) SCC 14.

Antarctic Treaty System

SignedLocation

December 1, 1959Washington D. C., USA

EffectiveCondition

June 23, 196112 ratifications

Parties 12 original signatories

The Antarctic Treaty and related agreements, collectively called the Antarctic Treaty System or ATS, regulate international relations with respect to Antarctica, Earth's only continent without a native human population. For the purposes of the treaty system, Antarctica is defined as all of the land and ice shelves south of 60°S latitude. The treaty, entering into force in 1961 and eventually signed by 47 countries, sets aside Antarctica as a scientific preserve, establishes freedom of scientific investigation and bans military activity on that continent. The treaty was the first arms control agreement established

Vinod (2009-2011) Page 15

during the Cold War. The Antarctic Treaty Secretariat headquarters have been located in Buenos Aires, Argentina, since September 2004.[1]

The Antarctic Treaty SystemThe main treaty was opened for signature on December 1, 1959, and officially entered into force on June 23, 1961.[2] The original signatories were the 12 countries active in Antarctica during the International Geophysical Year (IGY) of 1957–58 and willing to accept a US invitation to the conference at which the treaty was negotiated. The twelve countries had significant interests in Antarctica at the time: Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom and the United States. These countries had established over 50 Antarctic stations for the IGY. The treaty was a diplomatic expression of the operational and scientific cooperation that had been achieved "on the ice".

Articles of the Antarctic Treaty Article 1 – area to be used for peaceful purposes only; military activity, such as

weapons testing is prohibited, but military personnel and equipment may be used for scientific research or any other peaceful purpose;

Article 2 – freedom of scientific investigations and cooperation shall continue; Article 3 – free exchange of information and personnel in cooperation with the

United Nations and other international agencies; Article 4 – the treaty does not recognize, dispute, nor establish territorial

sovereignty claims; no new claims shall be asserted while the treaty is in force; Article 5 – prohibits nuclear explosions or disposal of radioactive wastes; Article 6 – includes under the treaty all land and ice shelves but not the

surrounding waters south of 60 degrees 00 minutes south; Article 7 – treaty-state observers have free access, including aerial observation, to

any area and may inspect all stations, installations, and equipment; advance notice of all activities and of the introduction of military personnel must be given;

Article 8 – allows for jurisdiction over observers and scientists by their own states;

Article 9 – frequent consultative meetings take place among member nations; Article 10 – treaty states will discourage activities by any country in Antarctica

that are contrary to the treaty; Article 11 – disputes to be settled peacefully by the parties concerned or,

ultimately, by the International Court of Justice; Articles 12, 13, 14 – deal with upholding, interpreting, and amending the treaty

among involved nations.

The main objective of the ATS is to ensure in the interests of all humankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall

Vinod (2009-2011) Page 16

not become the scene or object of international discord. The treaty forbids any measures of a military nature, but not the presence of military personnel.

Other agreements

This 1959 cover commemorated the opening of the Wilkes post office in the Australian Antarctic Territory.

Disposal of waste by simply dumping it at the shoreline such as here at the Russian Bellingshausen base is no longer permitted by the Protocol on Environmental Protection

Other agreements — some 200 recommendations adopted at treaty consultative meetings and ratified by governments — include:

Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964) (entered into force in 1982)

The Convention for the Conservation of Antarctic Seals (1972) The Convention for the Conservation of Antarctic Marine Living Resources

(1980) The Convention on the Regulation of Antarctic Mineral Resource Activities

(1988) (although it was signed in 1988, it was subsequently rejected and never entered into force)

The Protocol on Environmental Protection to the Antarctic Treaty was signed October 4, 1991 and entered into force January 14, 1998; this agreement prevents development and provides for the protection of the Antarctic environment through five specific annexes on marine pollution, fauna and flora, environmental impact assessments, waste management, and protected areas. It prohibits all activities relating to mineral resources except scientific. A sixth annex — on liability arising from environmental emergencies — was adopted in 2005 but is yet to enter into force.

Meetings

Vinod (2009-2011) Page 17

The Antarctic Treaty System's yearly Antarctic Treaty Consultative Meetings (ATCM) are the international forum for the administration and management of the region. Only 28 of the 46 parties to the agreements have the right to participate in decision-making at these meetings, though the other 18 are still allowed to attend. The decision-making participants are the Consultative Parties and, in addition to the 12 original signatories, include 16 countries that have demonstrated their interest in Antarctica by carrying out substantial scientific activity there.[3]

Members

     signatory, consulting, territorial claim      signatory, consulting, reserved right for territorial claim      signatory, consulting      signatory, acceding status      non-signatory

Note: The table can be sorted alphabetically or chronologically using the icon.

Country[4] Original signatory Consultative AccedingArgentina

(claim)* June 23, 1961

Australia (claim) June 23, 1961

Austria August 25, 1987Belarus December 27, 2006Belgium July 26, 1960Brazil September 12, 1983 May 16, 1975Bulgaria May 25, 1998 September 11, 1978Canada May 4, 1988Chile

(claim)* June 23, 1961

China October 7, 1985 June 8, 1983Colombia January 31, 1989

Vinod (2009-2011) Page 18

Cuba August 16, 1984Czech

Republic (as Czechoslovakia)

June 14, 1962

Denmark May 20, 1965Ecuador November 19, 1990 September 15, 1987Estonia May 17, 2001Finland October 9, 1989 May 15, 1984France

(claim) September 16, 1960

Germany (claim) (rests since 1945)

East Germany

March 3, 1981October 5, 1987

February 5, 1979November 19, 1974

Greece January 8, 1987Guatemala July 31, 1991Hungary January 27, 1984India September 12, 1983 August 19, 1983Italy October 5, 1987 March 18, 1981Japan August 4, 1960Monaco May 30, 2008Netherlands November 19, 1990 March 30, 1967New Zealand

(claim) November 1, 1960

North Korea January 21, 1987Norway

(claim) August 24, 1960

Papua New Guinea March 16, 1981

Peru October 9, 1989 April 10, 1981Poland July 29, 1977 June 8, 1961Romania September 15, 1971Russia (as

Soviet Union)** November 2, 1960

Slovakia (as Czechoslovaki

a)June 14, 1962

South Africa [5] June 21, 1960South Korea October 9, 1989 November 28, 1986Spain September 21, 1988 March 31, 1982Sweden September 21, 1988 March 24, 1984Switzerland November 15, 1990

Vinod (2009-2011) Page 19

Turkey January 25, 1996Ukraine May 27, 2004 October 28, 1992United

Kingdom (claim)*

May 31, 1960

United States** August 18, 1960

Uruguay October 7, 1985 January 11, 1980Venezuela May 24, 1999

* Claims overlap.** Reserved the right to claim areas.

Currently, there are 46 treaty member nations: 28 consultative and 18 acceding. Consultative (voting) members include the seven nations that claim portions of Antarctica as national territory. The 21 non-claimant nations either do not recognize the claims of others, or have not stated their positions.

Antarctic Treaty SecretariatThe Antarctic Treaty Secretariat was established in Buenos Aires, Argentina in September 2004 by the Antarctic Treaty Consultative Meeting (ATCM). Mr. Jan Huber (from the Netherlands) served as the first Executive Secretary for five years until August 31, 2009. He was succeeded on September 1, 2009 by Mr. Manfred Reinke (Germany), appointed for a four-year term.

The tasks of the Antarctic Treaty Secretariat can be divided into the following areas:

Supporting the annual Antarctic Treaty Consultative Meeting (ATCM) and the meeting of the Committee for Environmental Protection (CEP).

Facilitating the exchange of information between the Parties required in the Treaty and the Environment Protocol.

Collecting, storing, arranging and publishing the documents of the ATCM. Providing and disseminating public information about the Antarctic Treaty system

and Antarctic activities.

There are 46 countries that own bases in Antarctica.

Legal systemAntarctica has no permanent population and hence no citizenship or government. All personnel present on Antarctica at any time are citizens or nationals of some sovereignty outside of Antarctica, as there is no Antarctic sovereignty. The majority of Antarctica is claimed by one or more countries, but most countries do not explicitly recognize those claims. The area on the mainland between 90 degrees west and 150 degrees west,

Vinod (2009-2011) Page 20

combined with the interior of the Norwegian Sector (the extent of which has never been officially defined)[citation needed], is the only major land on Earth not claimed by any country.[6]

Governments that are party to the Antarctic Treaty and its Protocol on Environmental Protection implement the articles of these agreements, and decisions taken under them, through national laws. These laws generally apply only to their own citizens, wherever they are in Antarctica, and serve to enforce the consensus decisions of the consultative parties: about which activities are acceptable, which areas require permits to enter, what processes of environmental impact assessment must precede activities, and so on. The Antarctic Treaty is often considered to represent an example of the Common heritage of mankind principle.[7]

Vinod (2009-2011) Page 21

Convention for the Conservation of Antarctic Marine Living ResourcesFrom Wikipedia, the free encyclopediaJump to: navigation, search

The Convention for the Conservation of Antarctic Marine Living Resources, also Commission for the Conservation of Antarctic Marine Living Resources, and CCAMLR, is part of the Antarctic Treaty System. The Convention was opened for signature on May 5, 1980 and entered into force on April 7, 1982 by the Commission for the Conservation of Antarctic Marine Living Resources, headquartered in Tasmania, Australia. The goal is to preserve marine life and environmental integrity in and near Anarctica.

It was established in large part to concerns that an increase in krill catches in the Southern Ocean could have a serious impact on populations on other marine life which are dependent upon krill for food.[1] 31 nations were signatory parties on the convention, they include: Argentina, Australia, Belgium, Brazil, Bulgaria, Canada, Chile, EU, Finland, France, Germany, Greece, India, Italy, Japan, South Korea, Namibia, Netherlands, New Zealand, Norway, Peru, Poland, Russia, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uruguay, and Vanuatu.

In 1985, CCAMLR set up the Ecosystem Monitoring Programme (CEMP) to further monitor the effects of fishing and harvesting of species in the area.

Vinod (2009-2011) Page 22