Perspective on International Environmental Law

International law is defined as the law governing sovereign countries. Public International Law is composed of the laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with persons, whether natural or juridical. Public International Law is sometimes called the “law of nations” or just simply International Law. It should not be confused with Private International Law

SOURCES OF INTERNATIONAL LAW-

According to Statute of ICJ are-

International conventions and treaties

International Customs

The general principles of law recognised by civilized nations

The teachings of most highly qualified publicists of various nations

International law based on cooperation, coordination and reciprocity has progressed very well in a globalisation of world order in recent decade or two.

Look around, animals bathing, people washing clothes and waste of houses and industries all polluting our river; smoke, emission of poisonous gases making our air poisonous, noise pollution at peak, long list of endangered and extinct species; out of 10 every one person is suffering from asthma, typhoid. A serious problem, to worry about.

One of the subjects of International Law, now days hold a very vital position that is INTERNATIONAL ENVIRONMENTAL LAWS, which came into existence to solve the global issue- “Degradation of Environment”

The UN Declaration on Human Environment in 1972 and The Charter for Nature has also introduced a biologist and ecological view of world order based on harmony with nature and harmony between States. International law for 21st century has a vital role to play. It has to promote unity in diversity of global life and world order.

Environmental laws are the standards that governments establish to manage natural

resources and environmental quality. The broad categories of “natural resources” and “environmental quality” include such areas as air and water pollution, forests and wildlife, hazardous waste, agricultural practices, wetlands, and land use

planning. In the United States, some of the more widely known environmental laws are the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. The body of environmental law includes not only the text of these laws but also the regulations that implement and the judicial decisions that interpret this legislation. In general, the standards set forth in environmental laws can apply to either private parties or the government. The Clean Air and Clean Water Acts, for example, are frequently used to regulate the polluting activities of private enterprises. These laws mandate certain pollution-reducing technology or limit the levels of pollution for power plants and factories. The National

Environmental Policy Act (NEPA) applies only to the actions of the U.S. government. NEPA requires that the federal government undertake a comprehensive environmental impact assessment before it can proceed with projects that are likely to harm the environment.

The study of environmental law is a study of interaction between law and science. Great scientists and jurists have always combined to provide a road map for knowledge that guides mankind. Modern science philosophy, especially after the revolution of quantum physics, is based on the combination of science and humanism and therefore law.

This paper briefly deals with the relationship of environmental law and future studies. Environmental law is the law for the management of global environments. Future Studies are concerned with shape of environments and world society in future time. Rapid changes in national and global environments have occurred in recent years as a result of developments in modern science and technology. As a result mankind has, through the United Nations and other legal institutions, drawn new global environmental laws to safeguard and protect environments and the ecology of earth. Ecology is defined as a relationship of living organism and their adaptations to the environments. Thus today international law is predominantly environmental law as it shapes relationship of all living organism, including human beings who are all one species, called Homo sapiens.

Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity.

The topic may be divided into two major subjects:

(1) Pollution control and remediation

(2) Resource conservation and management.

Laws dealing with pollution are often media-limited – i.e., pertain only to a single environmental medium, such as air, water (whether surface water, groundwater or oceans), soil, etc. – and control both emissions of pollutants into the medium, as well as liability for exceeding permitted emissions and responsibility for cleanup. Laws regarding resource conservation and management generally focus on a single resource – e.g., natural resources such as forests, mineral deposits or animal species, or more intangible resources such as especially scenic areas or sites of high archeological value – and provide guidelines for and limitations on the conservation, disturbance and use of those resources. These areas are not mutually exclusive – for example, laws governing water pollution in lakes and rivers may also conserve the recreational value of such water bodies. Furthermore, many laws that are not exclusively “environmental” nonetheless include significant environmental components and integrate environmental policy decisions. Municipal, state and national laws regarding development, land use and infrastructure are examples.

Environmental law draws from and is influenced by principles of environmentalism, including ecology, conservation, stewardship, responsibility and sustainability. Pollution control laws generally are intended (often with varying degrees of emphasis) to protect and preserve both the natural environment and human health. Resource conservation and management laws generally balance (again, often with varying degrees of emphasis) the benefits of preservation and economic exploitation of resources. From an economic perspective environmental laws may be understood as concerned with the prevention of present and future externalities, and preservation of common resources from individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy.

BASIS OF GLOBAL ENVIRONMENTAL LAW

The sources are-

The 1972 UN Declaration on Human Environment

1982 World Charter for Nature

1992 Rio Declaration on Environment and Development

The 2002 Johannesburg Declaration on Sustainable Development

Indian Law-

The Environment Protection Act, 1986

Environment Clearance Notification, 1993

The Coast Regulation Zone Notification,1991

The Hazardous Waste Rule,1989

Air Pollution Control Act, 1981

Water Prevention Rules, 1982,

Control of Pollution Act,1974

Forest Conservation Act,1980

Wildlife Protection Act, 1972

There are many environmental rules. The Constitution of India has been amended to give priority to environment concerns. The Supreme Court has given orders to imbibe compulsory environment education in schools and colleges in the country.

Centre for Environmental Law World Wide Fund for Nature v. State of Orissa [1]

The petitioners in this case sought the intervention of the High Court to stop a project involving the construction of a fish landing Centre at Talchua as flora and fauna are directly going to be affected in and around the Bhirakani Wildlife Sanctuary.

To investigate the disputed matter, the Court ordered for the constitution of a Committee by the Ministry of Environment and Forests, along with the Principle Secretary of the State and other authorities as its members. In furtherance of this, the Environment Impact Assessment Committee submitted its report to the Hon’ble court. In its contention the State Government justified before the court that it would continue the project without affecting eco-systems of Bhirakani Sanctuary and also said that no violation has taken place.

The Court after referring the Committees Report and the arguments of the parties, observed that there couldn’t be a golden scale to evaluate these problems. The Court further laid down the directions to be followed by observance of conditions of the Environmental Statutes like the Wildlife Protection Act 1972, in the interest of the local people without affecting the environment.

The Court passed the following orders:

1. All possible attempts for the influx of migratory human population of the surrounding area.

2. To restrict the State Government from furthering the construction of bridges and developmental activities in the Sanctuary.

VOICING GRAVE CONCERN FOR GLOBAL ENVIRONMENTS, THE UN DECLARATION OF 1972 SAYS-

A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes.

In this article, let us think of some factors that are needed to be considered in our planning for future, with an integrated approach to environmental law.

What is the nature of future that we are concerned with? Is it progress, which is essentially today’s economic progress? Is it poverty removal which is needed as a debt of the rich for the poorer sections of global society? Is it sustainable development which is the global set by UN in latest Johannesburg Declaration 2002? Or it is “Creative Unity” of mankind based on unity in diversity of global life???

Perhaps progress of future law would encompass a combination of all above mentioned goals not merely one.

Second, there has to be an integration of all knowledge in law, science, history etc. A unity of knowledge is needed to think of future law and environment management.

Third, “unity in diversity” is the basis of law of nature.

Last but very important, our goal in law making and planning is to conform to sustainable development.

India has a well-organized and broad based Ministry of Environment and Forests supported by a large number of educational centres of excellence to promote

environment planning and future studies.

ENVIRONMENT MOVEMENT

Ever since the UN Stockholm Declaration on Human Environment made in 1972, we see global environment movement for the protection of nature. Man was getting out of harmony with nature.

The global environment movement has also highlighted the problems of common survival of mankind. The Natural Disasters like Tsunami in December 2004, Katrina in USA in 2005, earthquakes in Gujarat, and heavy rainfalls in Bombay and elsewhere in 2005 have brought forth that mankind must face these common dangers irrespective of world being a federation of sovereign States. The movement has also produced a hope for mankind to live in harmony and peace. There is the possibility to improve environment, and live in comfort with sustainable development, provided sovereign states cooperate, and make a common agenda for survival and progress.

The environment movement since 1972 has produced a plethora of international laws and declarations.

Today modern international law is predominantly oriented towards environment law.

Combining law and global science, in particular the ecological science and international law, provides a new paradigm for the world order. This combination has already helped develop a new global consciousness towards harmony of man with other human beings, and of man with nature. It provides a unified vision to grasp global scientific and social order and seek appropriate solutions.

WETLANDS

Wetlands have drawn attention worldwide as a vital part of biosphere resources as it constitute nearly 6% land area of earth.

Ramsar Convention signed at Tehran in 1971 deals with preservation of ecological functions of wetlands for regulation of water regimes and habitats supporting flora and fauna especially waterfowl.

Preservation of wetlands is an important part of UNESCO’s Men and Biosphere Programme.

The IUCN perform duties of a bureau to assist conferences, maintain list of wetlands etc.

The MOEF has done a remarkable work for environment protection and is now engaged in conservation and sustainable development movement in India. Himalayas and wetlands in Jammu and Kashmir need conservation.

AVIATION AND ITS IMPACT ON ENVIRONMENT

In response to the global concern for environment, ICAO established in 1977 a Committee on Aviation Environmental Protection, CAEP. The Committee was to consider the following issues:

Effectiveness and reliability of certification of schemes from viewpoint of technical feasibility, economic reasonableness and environmental benefits to be achieved;

Developments in other associated fields e.g. land use planning, noise abatement operating procedures, emission control through operational practices, etc.

International and national programmes of research into control of aircraft noise and control of gaseous emission from aircraft engines.

ICAO produced Chicago Convention to control aircraft noise and global emissions from aircraft engines which is binding on the State parties to the Convention.

Asia-Pacific Area Traffic-

The actual world aviation traffic according to ICAO has in the year 2004 increased 14% world over, due to strong performance by airlines in West Asia and Asia.

The vicinity of airports is subject to the impact of noise, air pollution. The ecology around airports is disturbed and wildlife, land use, water resources affected. Air routes also near airports have engulfed the populated areas.

Thus the Council of ICAO approved on 10 March 1967 a proposal that guidance material be prepared to help States to develop and plan expansion of existing international airports and for construction of new ones, to help to meet the environmental goals. Each airport has to have Master Plan.

CASE LAWS-

Fadeyeva v. Russia (application no. 55723/00)

The applicant complained that the operation of a big steel plant in close proximity to her home endangered her health and well-being and, despite that, the authorities did not find her another dwelling away from the plant.

The Court noted that, although the situation around the plant called for special treatment of those living in its immediate proximity, the State had not offered the applicant any effective solution to help her move from the dangerous area. Although the plant had operated in breach of domestic environmental standards, the State had not designed nor applied effective measures capable of reducing the industrial pollution to acceptable levels. Violation of Article 8 [2] of European Convention of Human Right.

Giacomelli v. Italy (application no. 59909/00)

The applicant complained of harmful emissions coming out of a plant for the treatment of “special, including hazardous, waste”, which was situated about 30 metres away from his home. She claimed it carried risks for her health and home.

The State authorities had failed to comply with domestic legislation on environmental matters given that an environmental impact study was carried out seven years after the plant started to operate, despite the legal requirement that it be done prior to the start of the activity. Although the domestic courts had ordered the suspension of the plant’s operations until their alignment with environmental protection regulations, the administrative authorities had not closed the facility. The Court found violation of Article 8 of European Convention and noticed a great threat to environment due to plant.

To have a clean and noiseless surrounding is the human right of every person. They have the right to get a proper environment and can even claim for the same. No one has the right to degrade it.

Appellants: M.C. Mehta Vs. Respondent: Union of India and Others [3]

In this case Court has kept in view the mandate of Articles 47 & 48A of the Constitution of India, and issued directions with a view to tackle the problem arising out of chaotic traffic conditions and vehicular pollution. As they were not satisfied with the performance of the concerned authorities in tackling the acute problem of vehicular pollution and traffic regulations in Delhi. The learned Additional Solicitor General was directed to have affidavits filed from the Ministry of Petroleum and Ministry of Surface Transport to disclose the steps taken for supply of lead free petrol and the use of catalytic converter on the new as well as existing vehicles so as to use lead free petrol throughout the country. On 7th January, 1998 a Committee had been constituted under the Chairmanship of Shri Bhure Lal, known as “Environment Pollution (Prevention and Control) Authority for the National Capital Region”. A direction was issued to the Committee to submit a report about the action taken by the Committee for controlling vehicular pollution and the connected matters.

MEANS OF IMPLEMENTING AND ENFORCING INTERNATIONAL ENVIRONMENT LAW

There are forums where international environmental disputes can be adjudicated, such as national courts, the International Court of Justice, and international arbitration panels. These forums, however, generally require that the disputing parties voluntarily submit to the jurisdiction of the court or panel. Additionally, even when these forums obtain jurisdiction over an international environmental dispute, they must rely on the cooperation of national governments to enforce rulings. For economic and political

reasons, this cooperation is often withheld. A small number of environmental agreements have established international institutions that can directly impose trade sanctions (such as the Montreal Protocol) or have authorized member states to impose trade sanctions against violating parties (such as the International Convention for the Regulation of Whaling).

For instance, in response to Japan’s violation of the International Whaling Commission’s whaling moratorium, the United States threatened to restrict Japanese fishing vessel activity in U.S. territorial waters. Japan elected to accede to the whaling moratorium rather than suffer any such restrictions. The type of sanctions envisioned under the Montreal Protocol and International Whaling Commission are procedurally very difficult to impose. In general, there is no international body authorized to directly enforce international environmental law. The task of direct enforcement is

left to the member nations, whose governments propose and adopt implementing policies.

Sometimes the implementing national legislation is identical to the international agreement. For example, Canada implemented the Migratory

Birds Treaty (with the United States) by adopting the Migratory Birds Treaty Act. Because the language of this act is identical to language in the

treaty, the law is basically a legislative codification of the international agreement.

Other times, however, the international environmental agreement is of a general nature and national governments must draft and implement more specific laws.

For instance, in 1989 the International Convention on Transboundary

Movement of Hazardous Waste was signed in Basel, Switzerland. This convention forbids the export of hazardous wastes to countries that lack “adequate means to dispose of them.” Under the terms of the convention, signatory nations are called upon to draft their own more specific national laws to implement this pledge.

Although international institutions are generally not responsible for directly implementing and enforcing international environmental law, they often play important monitoring, informational, and diplomatic roles.

For example, agendas adopted at the 1992 Convention on Environment and Development at Rio de Janeiro created a new international body, the Commission on Sustainable Development (CSD). The CSD meets yearly at the United Nations in New York to review and advance the implementation of Agenda 21—an enormous and complex mandate. Most global agreements, such as the Biodiversity Convention and the Framework Convention on Climate Change, are implemented by an annual or biennial Conference of Parties (COP). These COPs lack the power to bring enforcement actions against either governments or private parties. They help monitor national compliance by requiring member nations to submit annual reports. Through meetings and publications, COPs also provide a forum to discuss and debate issues associated with the implementation of the agreement. There are other institutions similar in function to the CSDs and the COPs. The North American Commission on Environmental Cooperation (NACEC), based in Montreal, Canada, monitors compliance with the North American Agreement on Environmental

Cooperation, one of the side agreements under the North American Free Trade Agreement(NAFTA). The European Environmental Agency, based in Copenhagen, Denmark, monitors the compliance of individual European countries with environmental directives adopted by the European Union. Although the CSD, COPs, NACEC, and the European Environmental Agency indicate that the international community is trying to improve compliance with environmental agreements, there

is still a lack of effective implementation and enforcement.

A 1992 study by the U. S. General Accounting Office concluded that international environmental agreements lack adequate procedures to monitor and ensure compliance.

Countries have become skilled in negotiating international environmental agreements, but they are much less skilled at making the agreement operate effectively.

In the past two decades, states have also used economic incentives and trade bans to encourage compliance with international environmental agreements. For example, the Montreal Protocol, the Framework Convention on Climate Change, and the Biodiversity Convention provide economic incentives in the form of technical assistance, technology transfers, and money to build the administrative capacity of national environmental agencies. These incentives have been of particular value in promoting the involvement and compliance of developing countries—part of

the Rio bargain between northern (developed) and southern (developing) countries.

The Global Environmental Facility (GEF), a new international funding institution, also provides money for training, equipment, and enforcement related to

environmental protection measures. Some recent international environmental agreements, such as the Biodiversity Convention have designated the

GEF as their exclusive funding mechanism

B. L Wadhera v Union of India [4]

A writ petition was filed under Art. 32 seeking directions to the Municipal Corporation of Delhi and the New Delhi Municipal Corporation to perform their statutory duties, in the collection, removal and disposal of garbage and other wastes from the city. The Court issued a couple of interim order, wherein directions were issued to the Delhi administration to perform their duties.

The Court held that the authorities entrusted with the work of pollution control have been wholly remiss in discharge of their duties under the law and that they cannot absolve themselves of their duties on the pretext of financial and other limitations like inefficiency of staff etc.

Though the case was against the public officer due to their failure for their duties but the main motive was protection of environment and society.

Environmental problems are the burning issue of today’s world. It can only be solved by joint effort of society and legislature. Thus International Environmental laws along with national and state legislations had become a stepping stone which not only brought the entire globe together against this menace but also created awareness among each and every individual. So let’s together put our best foot forward to create a beautiful environment and society for us and wildlife to live in.