|
International
Environmental Law Principles:
-------------------------------------------------------------------- Introduction: Much of the law to protect the environment has roots, that are deep in history, but the conceptual basis of environmental law is still developing. It is guided by distinctive principles, but there is as yet no 'Grand Theory' and it remains characterised by ad hoc-theory, without even agreement as to its boundaries. Legal evolution, like social and biological evolution, proceeds by fits and starts immediately pressing problems. This relatively undeveloped quality of environmental law means it is still possible to shape it. An optimistic view is often taken of environmental law; that a new law will cure our environmental ills, whatever these are perceived to be. However this optimism is frequently absorbed into the shadow between aspirations for a better life and reality. It is therefore important that environmental law is read critically and that the inherent limitations of relying on law alone are acknowledged All most all national Laws deal with, environmental problems in the same way it has traditionally dealt with other problems; in an individualist manner and favouring property.(2) To approach the Law in a critical, but constructive, way we draw upon a wide range of disciplines, periods and media. Understanding environmental problems requires making forays into other disciplines because the sources of environmental harm are diverse, multi-casual and themselves cross disciplinary boundaries.(3) Early
Developments : International initiatives: Classical international law regulates relations between sovereign States. The developing field of international environmental law faces challenges because it is concerned with natural systems. It follows the forms and procedures of international law and so is constrained by national frontiers but it also seeks to mediate the relationship between people and nature, safeguarding the integrity of ecosystem. International Environmental Law links individuals and their local government into a worldwide network, because each country's own legislation and institutions are assigned the job of applying the shared environmental rules. However when one considers how the weather transport pollution, how species migrate, how trade of a food product like coffee can carry pesticide residues, how tourists, business staff, or visitors move daily around the world, it is evident that each country needs to undertake roughly equivalent environmental protection measures. Law is the mechanism for defining and applying those services. Thus environmental rules cut across all artificial national boundaries, just as watersheds or wide pattern do. Environmental Law functions wherever nature's systems are found, and adapts human behavior to work within the constraints of the environment.(5) Legal Dilemmas It was in 1970 that the world started to look at protecting the Earth and its environment. It started with the observation of the Earth Day in America. Later the UN convention on Human Environment in 1972 took the worlds attention towards conservation and preservation of the human environment. Major instances of environmental harm, whether or not accidental, are likely to have transfrontier connotations. The sources of the damage, or the persons responsible for it, may be in countries other than those where the damage occurs: there may be victims or defendants from several countries, and so on. Domestic, or national, law refers to the legal system applicable to a defined territory over which a sovereign power has jurisdiction. International law, on the other hand, regulates the conduct of states and other international actors. Over the years domestic and international systems of law have evolved in parallel. In certain fields and regions of the world, international law has shaped and significantly contributed to the development of domestic environmental law. Yet international environmental law also reflects domestic experiences considered successful by the Community of Nations. The result is a complex relationship in which the two levels of environmental law mutually contribute to and reinforce each other. Principles of international environmental law International environmental protection, though largely developed in the last decades, confronts two major problems: the feebleness of international law considering its enforcement, and the need for economic development in many countries. International environmental law is at a very early stage of development and has evolved at a time when the heterogeneity of the international community has rapidly intensified and when economic problems have correspondingly increased and the needs and aspirations of the poorer States have become urgent. The traditional sources of international law are international treaties and customs. However, other texts, such as UN General Assembly resolutions or Declarations, which, in principle, have no binding effect, could be considered at least as guidelines towards a rational interpretation of international environmental law. Treaties must be ratified by States in order to bind them legally. The rights and obligations of States pertaining to the protection of the environment constitute the essence of international law, since its rules are letterae mortae if they have no power to impose their respect or to be enforced. Certain rules imposing the respect of environmental protection regulations are included in UNEP principles, in the UN Convention on the Law of the Sea (UNCLOS), and in the projects of bodies such as the International Law Commission (ILC), the International Law Association (ILA), the World Commission on Environment and Development (WCED) and in the UN's Conference on Environment and Development (UNCED) Rio Declaration. The main principles of international environmental law include: Duty to prevent, reduce and control environmental harm According to this customary principle, the States are required by international law to take adequate steps to control and regulate sources of serious global environmental pollution or transboundary harm, within their territory or subject to their jurisdiction. Principle 21 of the 1972 Stockholm Declaration on the Human Environment imposes to States the obligation to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or to areas beyond the limits of National jurisdiction. Transboundary co-operation(6) in cases of environmental risk This principle
expects from States to co-operate with each other in mitigating transboundary
environmental risks.(7) "Polluter Pays" principle The OECD's definition of this principle is that the polluter should bear the expenses of carrying out measures decided by public authorities to ensure that the environment is at an "acceptable state," or, in other words, that the cost of these measures should be reflected in the cost of goods and services, which cause pollution in production and/or in consumption. According to eminent commentators, the "Polluter Pays" principle is essentially a principle of economic policy and its primary object is economic, not environmental, that is the restitution of costs of pollution.(8) Principles of equal access and non-discrimination The principle of non-discrimination obliges the States to give equivalent treatment to the domestic and transboundary effects of pollution and requires that polluters causing transfrontier pollution should be subject to standards no less severe than would apply to pollution with domestic effects only. (9) Principles of sovereignty over natural resources(10) One State sovereignty: The principle of permanent sovereignty over natural resources dictates that natural resources are allocated to Sovereign States according to the boundaries established to delimit their respective land territory and territorial seas. The UN General Assembly, in Article 1 and 2 of the Charter of Economic Rights and Duties of States, affirmed this principle as follows: "Every State has the sovereign and inalienable right to chose its economic system, as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever." It also declared, expressly, that "every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its natural resources." Shared natural resources: As for the shared natural resources, that is the resources which do not fall wholly within the exclusive control of one State,19 Article 3 of the Charter of Economic Rights and Duties of States decrees that: "in the exploitation of natural resources shared by two or more countries each State must co-operate on the basis of a system of information and prior consultation in order to achieve maximum use of such resources without causing damage to the legitimate interests of others." Common property and the "reasonable use" principle: Common property, in international law, refers primarily to areas beyond national jurisdiction, of which the high seas and superjacent airspace are the most important examples. The principle of international law is that these common spaces are open for legitimate and reasonable use by all States, and may not be appropriated to the exclusive sovereignty of one state. Thus, for example, according to an ICJ decision, all States that fish in the high seas must make a rational use of their fishing capacities in order to preserve the natural resources of the sea for other States. Equity
and equitable utilisation: Intergenerational
equity: Common but different responsibilities: The 1992 Rio, Earth Summit articulated the norm of common but different responsibility. 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.(13) Sustainable Development: in October 1982, the UN General Assembly adopted the World Charter for Nature and Principles of Sustainable Development. The Agreement expressly recognized 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 Bruntland report on 'Common Future' also endorse the view by stating '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.'(14) The New Environmental Philosophy: Globalization In the growing jurisprudence and ethos of sustainable development, the key words are "globalization" and "equity." Several forms of environmental damage extend across national borders to the degradation of the global commons, affecting a global society. Therefore, the concept of a global society involves the need for global perspectives which, in turn, call for new definitions of jurisprudential, economic, and social relationships. Definitions which arose from the old order tend to lose their validity when reckoning with human society in a global dimension. With the development of new philosophic systems in modern international law, such as human rights, the individual is now treated as the direct beneficiary of the law. The members of a global society, in the final analysis, are individuals, and individuals are the beneficiary of both state law and international law. Because some areas of legal rights and obligations are common to both the state and international legal systems, one can conceive of the individual as positioned in the center of two concentric circles, an inner circle embodying the operation of state law and a larger circle embodying the operation of global law. With that metaphor, in common legal areas, such as environmental law, one may envisage global values flowing into the content of state law. In such areas, global perspectives need to be considered to arrive at a true and comprehensive interpretation of individual rights and obligations. The globalization of human society and of human values has been developing during the second half of this century, and has taken a vitally significant and irreversible direction. All over the world, a stirring of global consciousness has occurred, from the theaters of armed conflict to the institutions of humanitarian relief. This is not to say that the doctrine of state sovereignty has lost its basic validity. Developing nations, including India, insist on their right to development, both in terms of the right to freely determine their economic, social, political, and cultural priorities, and in terms of their right to the use of their natural and other resources. Upon attaining independence, the new States realized that, among other things, poverty and low standards of living at home led to comparatively weaker bargaining positions in the arenas of international diplomacy and international economic opportunity. Conclusion: 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 implementation legislation, they are not usually enforceable on their own in a Court. India has obligation 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.(15) The Supreme Court has strongly accepted the view of Polluter pay principles in the Bichhri case(16). Like wise the Constitution and statutory provisions protect a person's right to fresh air, clean water and pollution free environment(17), but the source of the right is the inalienable common law right of clean environment. (18) 1. B.Com, LL.M, PGDEL, Research Officer, CEERA, National Law School of India University . 2. Sue Elworthy & Jane Holder, Environmental Protection, Butterworths, London, 1997, p. 3 3. Ibid p. 4 4. Http://www.worldbank.org/legal 5. Ibid, p. 124 6. The Indus Waters Treaty Between India and Pakistan, 1960 is a classic example on a successful bilateral agreement on sharing of water resources of the Indus 7. The North American free Trade Agreement 1992 [NAFTA] between Mexico, US and Canada is a best example of balance of trade and environmental protection. The agreement through Art. 2015 provides and obligates States to : 1. To publish State of their environment annually 2. Declare any emergencies 3. Promote Environmental education 4. Conduct EIA/Audit. It also create mechanism that give trade experts facing an environmental issue with scientific and environmental expertise to make a 'full informed decision' 8. The Indian Judiciary has applied the principle in the Vellore Citizen's Welfare Forum v Union of India AIR 1996 SC 2715. Also see the MoEF, Policy Statement for Abatement of Pollution, para 3.3, 1992 9. See generally provisions of The Basel Convention of Transboundary Movement of Hazardous Waste 1998 10. UN resolutions. General Assembly resolution 626 [VII] stipulates that States may exercise their rights freely to use and to exploit their natural wealth and resources 'wherever deemed desirable by them for their own progress and economic development'; 11. Http://business.hol.gr/^bio/allfile/HTML 12. In State of Himachal Pradesh v Ganesh Wood Products AIR 1996 SC149, the Supreme Court recognized the significance of Intergenerational 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 Intergenerational equity'. 13. Environmentalist stress the need for incorporating the same view in the WTO round of negotiations. 14. The Government of India has adopted the principle of Sustainable development through the MoEF policy statement on National Conservation Strategy and Policy Statement on Environment and development, para 8.7, 1992 15. All the above mentioned principles have taken strong roots in the legal jurisprudence of the Indian environmental laws. 16. Indian Council for Enviro-legal Action v Union of India, 1996 (3) SCC 212. 17. Subhas Kumar v State of Bihar, The SC interpreted Rt. To life to mean clean and healthy environment. 18. Blackstone's commentaries on the Laws of England [1876] in respect of nuisance], Also see Vellore Citizen's welfare forum case. |