This article is written by Aastha Verma, pursuing B.A.LL.B from Kalinga University Raipur, Chhattisgarh. The article is an in-depth analysis of international laws for environmental protection and the role of the judiciary in India. The article has been edited by Vedant (Associate, LawSikho) and Smaranika Sen (Senior Associate, LawSikho).
Table of Contents
International Environment Law is concerned with the attempt to regulate the population and the depletion of natural resources within a framework of sustainable development. It is a branch of public international law that is created by the state for the state to govern problems that arise between states. Population, biodiversity, climate change, ozone depletion, poisonous and hazardous substances are covered under international law. Development in science and technology has enhanced the possibility of understanding the environmental implication of various natural events as well as human activities. There is an exponential increase in multilateral environmental agreements covering a wide range of problems such as depletion of freshwater supplies, ozone depletion, climate change, biodiversity loss, toxic and hazardous products, and contamination of rivers.
The evolution of international environmental law has produced mixed outcomes. While some treaties have been effective in producing the desired results, it introduces its sources and important underlying principles. The rest is explained in the latter part of the article.
Historical background and scientific foundation
International treaties, customary international laws, and judicial decisions of international courts are the three main sources of international environmental law. Customary international laws are unwritten laws that are followed from the time being among nations. It includes warning a neighboring nation about major accidents that could affect the environment. International environment law is shaped by the decision made by the International Court of Justice or the International Tribunal for the law of seas. The “Polluter pays principle” was created by an international arbitration panel which states that if pollution from one nation causes harm in another nation, the polluter nation must make compensation to the affected nation. A nation’s sovereignty allows it to act as the primary obstacle to all types of international laws. The sovereignty principle states that each country has complete control over the activities within its borders.
The degradation of ecosystems and exploitation of flora (plants) and fauna (animals) were the first environmental challenges to receive international attention. The World Conservation Union (IUCN), a non-governmental organization dedicated to environmental conservation, called on all nations to protect endangered species. The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) is an international agreement that regulates the trade of endangered species and items derived from them to safeguard the endangered plants and animals. There are a total of 172 nations currently participating in this trade.
International Environmental Law
International environmental law is a branch of public international law, which is a body of law created by states to resolve disputes between them. It is concerned with efforts to reduce pollution. The multilateral environmental agreement is the subset of international convention by Article 38 of the Statute of the International Court of Justice, which specifically focuses on environmental matters.
Multilateral Environmental Agreement
It refers to a set of legally binding international instruments that states employ to commit to achieving specified environmental objectives. They can be conventions, treaties, declarations, agreements, or protocols. As per the principle of international treaties, multilateral treaties are the treaties that bind only those states who have agreed to be bound by them. They are effective tools for the implementation of policies to achieve sustainable development goals.
Sustainable Development Goal
The concept of sustainable development plays an important role in preventing the depletion of natural resources. It refers to the idea of a development meeting the present generation’s cultural and physical needs, without damaging the future generation’s ability to meet their own needs. The purpose of sustainable development is to promote the type of development that has the least negative impact on the environment. It can be achieved by restricting human activities and making technological development more effective. The rate of consumption of renewable resources should not exceed the rate of production. Examples of sustainable development include wind energy, solar energy, and sustainable construction.
As part of a new sustainable development plan, all states approved a set of targets in September 2015 to end poverty, safeguard the environment, and secure prosperity. It is recognized as one of the important tools to achieve sustainable development goals. They provide the framework for the implementation of activities on the national level. Also, further guidelines will be developed to improve the effectiveness and efficiency.
International environmental law governance
The UN Environment Assembly is the highest-level UN body convened on the environment, which opened on 23 June 2014 at its headquarters, Nairobi. United Nations Environmental Assembly (UNEA) feeds directly into the General Assembly and has universal membership of 193, all members of UN and other stakeholders groups. With the help of these members, this new entity provides a ground-breaking platform for leadership on global environmental policy.
Declaration and treaties
- The Declaration of the United Nations Conference on Human Environment has been the first major attempt to consider the worldwide human impact on the environment as well as international effort to solve the challenges of environmental conservation and improvement.
- The Rio Declaration on Environment and Development, also known as Rio Earth Summit, was a short declaration produced by the United Nations Conference on Environment and Development (UNCED) in 1992. It is made up of 27 concepts that are intended to guide future global sustainable development.
- Environmental customary laws and general ideas such as precautionary principles and sustainable development are changing. The speed with which awareness of the global environment has reached the international political agenda has meant that customary law has tended to take second place in treaty law in the evolution of legal norms.
- The international community has responded to the necessity to regulate activities that endanger the environment by signing treaties.
- Many bilateral and multilateral environmental treaties are creating state’s rights and obligations.
The natural growth of the population continually presents problems for the preservation of the environment and adequate policies and measures should be adopted.
Reasons for environmental crisis
- Population Explosion – The high rate of growth of the population adversely affects the environment. It increases demand for environmental resources but their supply is limited.
- Rise in economic activities – It leads to affluent consumption and production of goods and services. It produces wastes that exceed the absorptive capacity of the environment.
- Increased use of insecticides, pesticides, and chemical industries – Increased use of harmful insecticides, pesticides, and chemical fertilizers causes health problems for farmers and employees.
- Rapid industrialization – It has led to deforestation and depletion of natural resources. It leads to contamination of water due to the accumulation of increasing quantities of toxic substances and industrial wastes in the water bodies.
- Urbanization – The rapid rise of slum areas is caused by the migration of people from rural areas to urban areas. It leads to an excess burden on existing infrastructural activities.
Climate change response
It is also called ‘global warming’, which refers to the rise in the average surface temperature of the earth. The burning of fossil fuels, which releases greenhouse gases into the atmosphere, primarily carbon dioxide (CO2), is the primary cause of global warming. Human activities like agriculture, deforestation also contribute to rising temperatures on the earth’s surface.
- UNFCCC (The United Nations Framework Convention on Climate Change) is an umbrella for global climate change. The convention was adopted during the Rio Conference in 1992 which addressed the reduction of greenhouse gases that are not controlled by the Montreal Protocol. The objective of Article 2 of UNFCCC is to determine the global climate change response by the method of general goal and criteria for determining the time frame to achieve it. Article 3 of UNFCCC determines the principles that guide the implementation of the convention. It also shapes the commitments that have been formulated. Article 4 of UNFCCC formulates commitments for developed country parties only.
- The Kyoto Protocol of 1997 set specific emission reduction targets for the developed countries. It shares the ultimate objective of the Convention to stabilize the atmospheric concentration of greenhouse gases (GHGs) at a level that prevents dangerous interference with the climate system. The aim behind this initiative is to enhance many of the commitments already in place under the convention. The focus lies on emission reduction commitments.
- The Paris Agreement of 2015 establishes specific mandatory and voluntary commitments for mitigation of greenhouse gases, the adaptation of adverse impact on climate change, ensures support to developing countries from developed countries, and reports the implementation of various activities. It is based on voluntary contributions to reduce emissions, especially to address climate change adaptation and enhance reporting obligations. The Paris agreement works on a five-year cycle carried out by the countries. They aim to reach global peaking of greenhouse gas emission as soon as possible to accomplish a climate neutral world by mid-century.
India and its impact on climate change
India is one of the countries most vulnerable to climate change. Half of the Indian population is dependent upon the agriculture sector. Now, India is the third largest emitter of greenhouse gases after China and the United States. India’s annual emissions of carbon dioxide are projected to increase almost 2.5 times between 2008 to 2035. The energy sector constitutes 8% of net carbon dioxide emission and industry sector 22%, agriculture 17% as waste sector constitutes 3% of the net carbon dioxide emission.
Climate change and energy are now the focus of local, state, and national attention around the world. Earlier, India was not responsible for the greenhouse emission as it had a low per capita emission rate, but now, India plays a key role in international negotiations and must implement a diversified policy to develop clean sources of energy, improve energy efficiency, and prepare for the impact of climate change.
Role of Judiciary
The principles under which laws of the environment work in India are developed through judicial proceedings of the Supreme Court and the High Courts. The court has played a vital role in interpreting laws and laying down the principle upon the interpretation of Indian statutes and the Constitution.
The judgments and orders of the Supreme Court cover a wide range of areas like air, water, solid waste, or hazardous waste. The Supreme Court has passed orders for the closure of polluting industries and harmful aqua farms, stopped illegal mining activities, cleaner fuel for vehicles, and protected forests and architectural treasures like the Taj Mahal.
Judgment given by various courts relating to environment laws are as follows –
- M.C. Mehta v. Union of India (1986): The Supreme Court formulated the principle of ‘absolute liability for compensating the victims of pollution caused by hazardous or inherently dangerous industries. When any person is involved in any hazardous activities, he shall be liable even if the defendant took necessary precautions and has followed all the safety precautions. Absolute liability is an exception to strict liability.
- Ganesh Wood Products v. State of Himachal Pradesh (1995): This ruling expanded the definition of forest and put a restriction on all non-forest operations on forest land that did not get prior consent from the central government. It also provided instructions to form an expert committee in each state to identify forests and dispose of timber.
- M.C. Mehta v. Kamal Nath (1996), There was an attempt to divert the river’s flow from a motel’s arguments facilities. The Supreme Court intervened by recognizing the “Public Trust Doctrine”, in which governments have a responsibility to safeguard and conserve natural resources like rivers, lakes, forests, and other common property resources.
It is widely recognized that the planet faces a range of environmental challenges which can be addressed through international cooperation. There is climate change because of high population density, high level of industry and the importance of its cultural heritage are all factors which have made protection of the environment a matter of international concern.
Today, countries are busy reforming their economy because of which challenges are moved towards sustainable development. Also, it depends upon achieving its economic and environmental objectives through strengthening the implementation of its environmental policies and the integration of the environment. It is always recommended to strengthen the human and budgetary resources and review its structure to better integrate into government action. The simplification of current legislation and regulation must be promoted to make it easier to enforce and strengthen the accountability mechanism for all levels of government and industry.
- Climate Change – Indian Law And Judiciary – Environment – India (mondaq.com)
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