Ent Law.docx

International Environmental law Principles governing International Environment Law

Submitted to- Ms Shraddha Submitted by- Mansi Delu A3221615024 B.com. LLB (H) Sem-8

The precautionary principle Environmental law regularly operates in areas complicated by high levels of scientific uncertainty. In the case of many activities that entail some change to the environment, it is impossible to determine precisely what effects the activity will have on the quality of the environment or on human health. It is generally impossible to know, for example, whether a certain level of air pollution will result in an increase in mortality from respiratory disease, whether a certain level of water pollution will reduce a healthy fish population, or whether oil development in an environmentally sensitive area will significantly disturb the native wildlife. The precautionary principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which stipulates that, where there are “threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation.” In the United States the precautionary principle was incorporated into the design of habitat-conservation plans required under the aegis of the Endangered Species Act. In 1989 the EC invoked the precautionary principle when it banned the importation of U.S. hormone-fed beef, and in 2000 the organization adopted the principle as a “full-fledged and general principle of international law.” In 1999 Australia and New Zealand invoked the precautionary principle in The precautionary principle aims to provide guidance in the development and application of international environmental law where there is scientific uncertainty. It can also be treated as a preventive step or preventive principle for the environment protection. The principle requires identification and concentration of some matters which may affect the environment and also imposes an obligation to take some initiatives as precaution for future uncertain damage which may be caused by development action. Preventive principles can be traced back to international environmental treaties and other international acts of 1930s. The precautionary principle only began to appear in international legal instruments in the mid-1980s, although prior to that it had featured as a principle in domestic legal system, most notably that of West Germany. But a new dimension in the form of a principle of international environmental law has been created when we found the principle used in different soft and hard instruments of international environmental law. Rio declaration states that in order to protect the environment, the

precautionary approach shall be widely applied by States according to their capabilities.18 An obligation upon states has been imposed to prevent possible threats and harm of environment. Framework Convention on Climate Change, 1992, a hard law, refers that the Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.their suit against Japan for its alleged overfishing of southern bluefin tuna.

The prevention principle Although much environmental legislation is drafted in response to catastrophes, preventing environmental harm is cheaper, easier, and less environmentally dangerous than reacting to environmental harm that already has taken place. The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping. The prevention principle also was an important element of the EC’s Third Environmental Action Programme, which was adopted in 1983.

The “polluter pays” principle Since the early 1970s the “polluter pays” principle has been a dominant concept in environmental law. Many economists claim that much environmental harm is caused by producers who “externalize” the costs of their activities. For example, factories that emit unfiltered exhaust into the atmosphere or discharge untreated chemicals into a river pay little to dispose of their waste. Instead, the cost of waste disposal in the form of pollution is borne by the entire community. Similarly, the driver of an automobile bears the costs of fuel and maintenance but externalizes the costs associated with the gases emitted from the tailpipe. Accordingly, the purpose of many environmental regulations is to force polluters to bear the real costs of their pollution, though such costs often are difficult to calculate precisely. In theory, such measures encourage producers of pollution to make cleaner products or to use

cleaner technologies. The “polluter pays” principle underlies U.S. laws requiring the cleanup of releases of hazardous substances, including oil. One such law, the Oil Pollution Act (1990), was passed in reaction to the spillage of some 11 million gallons (41 million litres) of oil into Prince William Sound in Alaska in 1989. The “polluter pays” principle also guides the policies of the EU and other governments throughout the world. A 1991 ordinance in Germany, for example, held businesses responsible for the costs of recycling or disposing of their products’ packaging, up to the end of the product’s life cycle; however, the German Federal Constitutional Court struck down the regulation as unconstitutional. Such policies also have been adopted at the regional or state level; in 1996 the U.S. state of Florida, in order to protect its environmentally sensitive Everglades region, incorporated a limited “polluter pays” provision into its constitution.

The public participation principle Decisions about environmental protection often formally integrate the views of the public. Generally, government decisions to set environmental standards for specific types of pollution, to permit significant environmentally damaging activities, or to preserve significant resources are made only after the impending decision has been formally and publicly announced and the public has been given the opportunity to influence the decision through written comments or hearings. In many countries citizens may challenge in court or before administrative bodies government decisions affecting the environment. These citizen lawsuits have become an important component of environmental decision making at both the national and the international level. Public participation in environmental decision making has been facilitated in Europe and North America by laws that mandate extensive public access to government information on the environment. Similar measures at the international level include the Rio Declaration and the 1998 Århus Convention, which committed the 40 European signatory states to increase the environmental information available to the public and to enhance the public’s ability to participate in government decisions that affect the environment. During the 1990s the Internet became a primary vehicle for disseminating environmental information to the public.

Sustainable development The principle of sustainable development (SD) has already been treated as a great component of environmental protection. The principle of sustainable development has been linked to various other concepts, such as, intergenerational and intragenerational equity, principle of integration, sustainable use of natural resources and biological diversity. There is no way to deny the development activities are a must. But development without considering sustainability may environmental damage. The development and environment co-relation therefore is vital principle of International Environmental Law. The concept of SD is found in different international instrument. The idea of SD was used in the World Commission of Environment and Development report in 1987 where it found itself at the centre of the environment/development and North/South discourses. The term SD refers to a development that meets the needs of present without compromising the ability of future generations to meet their own needs.8 The principle of SD was incorporated in Rio de Janeiro Declaration. Principle 4 of the declaration states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Thus, it is clear that environmental protection along with the development policies is a must for sustainable development and environmental protection and implementation of development policies should go hand in hand to attain the goal of SD. Sustainable development is an approach to economic planning that attempts to foster economic growth while preserving the quality of the environment for future generations. Despite its enormous popularity in the last two decades of the 20th century, the concept of sustainable development proved difficult to apply in many cases, primarily because the results of long-term sustainability analyses depend on the particular resources focused upon. For example, a forest that will provide a sustained yield of timber in perpetuity may not support native bird populations, and a mineral deposit that will eventually be exhausted may nevertheless support more or less sustainable communities. Sustainability was the focus of the 1992 Earth Summit and later was central to a multitude of environmental studies.

One of the most important areas of the law of sustainable development is ecotourism. Although tourism poses the threat of environmental harm from pollution and the overuse of natural resources, it also can create economic incentives for the preservation of the environment in developing countries and increase awareness of unique and fragile ecosystems throughout the world. In 1995 the World Conference on Sustainable Tourism, held on the island of Lanzarote in the Canary Islands, adopted a charter that encouraged the development of laws that would promote the dual goals of economic development through tourism and protection of the environment. Two years later, in the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific countries pledged themselves to a set of principles that included fostering awareness of environmental ethics in tourism, reducing waste, promoting natural and cultural diversity, and supporting local economies and local community involvement. Highlighting the growing importance of sustainable tourism, the World Tourism Organization declared 2002 the International Year of Ecotourism.

Environmental Impact Assessment Environmental impact assessment (EIA) is a formal process for identifying likely effects of activities or projects on the environment, and on human health and welfare it also includes measures to mitigate and monitor these impacts. It means the assessment of possible environmental harms or damage which may be caused by various development activities. Before taking up any development activities in a country environmental assessment is a must. And if the assessment indicates likelihood of serious harm and environmental degradation, the development activities should be stopped. This principle is incorporated in Rio declaration. Principle 17 of the declaration states that EIA, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a component national authority.20 EIA principle also gives the opportunity to ensure public participation and also access to information relating to environmental measures.

Public Trust Doctrine Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The sovereign could not, therefore, transfer public trust properties to a private party if the grant would interfere with the public interest. The public trust has been widely used and scrutinized in the United States, but its scope is still uncertain. Various have been made to apply this doctrine to protect navigable and non-navigable waters, public land sand parks, and to apply it to both public and private lands and ecological resources. The Supreme Court of California has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine is not without its fair share of criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection. The doctrine combines the guarantee of public access to public trust resources with a requirement of public accountability in respect of decisionmaking regarding such resources. Moreover, not only can it be used to protect the public from poor application of planning law or environmental impact assessment, it also has an intergenerational dimension.

The Doctrine of Public Trust In India The Public Trust Doctrine has its origins in Roman Law. It has been extended in recent years, placing a duty on the state to hold environmental resources in trust for the benefit of the public. At its widest, it could be used by the courts as a tool to protect the environment from many kinds of degradation. In some countries, the doctrine has formed the basis of environmental policy legislation, allowing private rights of action by citizens for violations by the state (directly or indirectly) of the public trust.

The Rule of Law runs close to the rule of life and the Indian Constitution, in its humanist vision, has made environmental-ecological preservation a fundamental value. The higher jurisprudence of Article 21 of the Constitution (right to life) embraces the protection and preservation of nature's gift without which life ceases to be viable and human rights become a

simulacrum. In other words, this right to life under article 21 has been extended to include the right to a healthy environment and the right to livelihood. The third aspect of the right to life is the application of public trust doctrine to protect and preserve the public land. When the Indian courts have applied the public trust doctrine, they have considered it not only as an international law concept, but one, which is well established in their national legal system.

Accepting public trust doctrine as a part of common law, the Indian courts have applied this explicitly in three recent cases, the first one in 1997 and two cases in 1999 , including the case under consideration. Articles 48A and 51A of the Constitution also furnish the principles of jurisprudence, which are fundamental to our governance under the Rule of Law.

The doctrine is first mentioned in M.C. Mehta v Kamal Nath and others where the Indian Supreme Court applied public trust with regard to the protection and preservation of natural resources. In this case, the State Government granted lease of riparian forestland to a private company for commercial purpose. The purpose of the lease was to build a motel at the bank of the River Beas. A report published in a national newspaper alleged that the motel management interfered with the natural flow of the river in order to divert its course and to save the motel from future floods. The Supreme Court initiated suo motu action based on the newspaper item because the facts disclosed, if true, would be a serious act of environmental degradation.

The Supreme court in M.C. Mehta started that the Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and forests have such great importance to the people as a whole that it would be unjustified to make them a subject of private ownership . The court observed that: Our Indian legal system, which is based on English common law, includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources, which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. As rivers, forests, minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in

the interest of mankind. It is in the interest of the nation. Thus, the Public Trust doctrine is a part of the law of the land. The court also ruled that there is no any justifiable reason to rule out the application of the public trust doctrine in all ecosystems in India.

Conclusion

Although numerous international environmental treaties have been concluded, effective agreements remain difficult to achieve for a variety of reasons. Because environmental problems ignore political boundaries, they can be adequately addressed only with the cooperation of numerous governments, among which there may be serious disagreements on important points of environmental policy. Furthermore, because the measures necessary to address environmental problems typically result in social and economic hardships in the countries that adopt them, many countries, particularly in the developing world, have been reluctant to enter into environmental treaties. The greatest challenge to the effectiveness of environmental treaties is compliance. Although treaties can attempt to enforce compliance through mechanisms such as sanctions, such measures usually are of limited usefulness, in part because countries in compliance with a treaty may be unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of sanctions is less important to most countries than the possibility that by violating their international obligations they risk losing their good standing in the international community. Enforcement mechanisms other than sanctions have been difficult to establish, usually because they would require countries to cede significant aspects of their national sovereignty to foreign or international organizations. In most agreements, therefore, enforcement is treated as a domestic issue, an approach that effectively allows each country to define compliance in whatever way best serves its national interest. Despite this difficulty, international environmental treaties and agreements are likely to grow in importance as international environmental problems become more acute.