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International_Environmental_Law_From_Pri.ppt
1. INTERNATIONAL ENVIRONMENTAL
LAW & GOVERNANCE
From Principles to Practice in India
TRAINING SESSION
Jhar khand Forest Depar tment
ENVIRO LEGAL DEFENCE FIRM
NAYSA AHUJA
1
2. OVERVIEW
2
• Why do we need it?
• What is the nature of International Environmental Law?
• Key Principles of International Environmental Governance
• Important Treaty Law & Core principles
• Impact of International Law in India
• Concluding Remarks
3. • Why do we need it?
• The Tragedy of commons
• Ecological interdependence
• International Implications of Domestic action
• Need a legal and regulatory system to address common
concerns- control on particular activity or products
ORIGINS
3
4. 4
INTERNATIONAL ENVTL LAW
Is international environmental law really a law?
- Form of Soft Law
- Sovereign states
- Signing & ratifying
- Reservation/ exclusion from Specific provision
- ART. 253
The major difficulty is faced in its implementation at the
national scenario!!
Building Blocks of International Law
• Norm/ customary practice to use and manage resources
• Uniformly practiced or observed or accepted
• Common understanding of perceived threat to public
• World order and peace
5. KEY EVIRONMENTAL GOVERNANCE PRINCIPLES
5
Law &
Policy
Institutions
Socio-
Economic
Developmen
t
Well-
coordinated
Landscape
approach
Trans-
boundary
approach
Gender
Equity
Access Rights
Precautionary
Principle
Delimitation
Sovereignty
over Natural
Resource
Sustainable
Development
Incorporate
traditional
knowledge
Integrated
natural
resource
Management
planning
Administrative
Justice &
fairness
Data
Collection &
Assessments
Human
Rights
Polluter Pays
Principle
6. 6
INTERNATIONAL ENVIRONMENTAL PRINCIPLES
• Four Recurring Themes
Principle of inter-generational equity
Principle of sustainable use
Principle of equitable use, or intra-generational equity
Principle of integration
7. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
7
• First Attempt:
UN Conference on the Human Environment, held in Stockholm in 1972
“Are not poverty and need the greatest polluters?...How can we speak to those
who live in villages and slums about keeping the oceans, the rivers and the air
clean when their own lives are contaminated at the source?”
(Smt. Indira Gandhi)
Principles:
the sovereign right to exploit their own resources pursuant to their own
environmental policies (Principle 2; Rio Declaration)
the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or areas beyond the limits
of national jurisdiction (Do No Harm Principle; Principle 2)
States to have Common but differentiated responsibility in view of different
contributions to global environmental degradation (Principle 7; Rio Declaration)
8. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
• Rio Conference / UNCED / Earth Summit (1992):
• 27 Key Principles (Rio Declaration on Environment and Development)
• Agenda 21 (Non-binding, Voluntarily implemented Action Plan on
Sustainable Development)
• Forest Principles (Non-Legally Binding Authoritative Statement of
Principles for a Global Consensus on the Management, Conservation and
Sustainable Development of All Types of Forests)
• UN Convention on Climate Change –Montreal & Kyoto Protocol—Paris
Climate Agreement 2015– REDD+ Mechanism
• Convention on Biodiversity– Biological Diversity Act, 2002
• UN Convention to Combat Desertification (mostly focused on Africa)
9. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
• Rio Declaration Principles (1992):
Principle 1 & 4: To ensure that mitigative steps are and can be taken
to preserve the ecological balance allowing
Sustainable Development
IMPLICATIONS IN INDIAN CONTEXT
- Narmada Bachao Andolan v. Union of India (2000)- “Sustainable
development means what type or extent of development can take place
which can be sustained by nature/ecology with or without mitigation”
- N.D. Jayal v. Union of India (2003)- “Sustainable development is integral
ingredient of Article 21”
10. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
Principle 17: Environmental impact assessment, 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 competent
national authority
IMPLICATIONS IN INDIAN CONTEXT
-EIA Notification was issued in 1994; amended in 2006 by the Central
Govt. to take measures to protect and improve environment
(Sec 3 of EPA)
11. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
Principle 10: to ensure administrative fairness in environmental
decision-making through Access to Information, Public
Participation, and Access to Justice (r/w P 20)
IMPLICATIONS IN INDIAN CONTEXT
- Right to Information Act, 2005 (Access to Information)
- National Green Tribunal Act of 2010 (Access to Justice)
- Legal requirement of Public Consultation under EIA Notification and other
Acts
- Inclusion of women and indigenous people- legal and action plan priority
12. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
PRECAUTIONARY PRINCIPAL
Principle 15: to ensure measures for prevention to be undertaken for
any activity likely to cause ecological change through
precautionary approach according to their capabilities
13. IMPLICATIONS IN INDIAN CONTEXT
• Executive Decision in BT Brinjal Case:
PRECAUTIONARY PRINCIPLE
14. INTERNATIONAL ENVIRONMENTAL PRINCIPLES
POLLUTER PAYS PRINCIPLE
Principle 16: to promote the internalization of environmental costs
and... that the polluter should, in principle, bear the cost
of pollution, with due regard to the public interest and
without distorting international trade and investment.
Principle 13: to develop national law regarding liability and
compensation for the victims of pollution and other
environmental damage.
IMPLICATIONS IN INDIAN CONTEXT
- Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715
- Indian Council for Enviro–Legal Action v. Union of India, AIR 1996 SC
1446.
15. UNFCCC & FORESTRY
15
• Forests as a source of carbon sinks and reduce CO2 in the atmosphere
• REDD- Reduction of Emission from Deforestation and Degradation of forests
• ‘+’ symbol: SFM, enhanced forest carbon stocks, biodiversity conservation,
reforestation of degraded forests
• Compensated conservation
• Livelihood security; Carbon Rights as co-benefits to the communities
• Multi-level governance from village to National level institutional
arrangement (Elements of Principle 10 at the core) including monitoring,
measurement, reporting and verification
16. IMPLICATIONS IN INDIAN CONTEXT
- NAPCC, 8 Mission including Green India Mission in 2011
- 12th Five Year Plan (2012 – 2017)
-- significant 'co-benefits' for climate action with inclusive
and sustainable growth
- Economic Survey: For the first time chapter on Sustainable
Development and Climate Change (2011 -12)-- Financing climate
change adaptation and mitigation measures
- Implementation Guidelines for GIM 2015-
- Employ existing JFM institutions
- Convergence with MNREGS, CAMPA, IWDP schemes
- Landscape approach- Unlearning biases- Complex!
17. Tracking ant
movements for floods Sacred Groves/ Se Rong/
Gumpa Forest
Community Picohydel
Projects
Ecosystem
Service Charges
(Himachal)
RECOGNIZED COMMUNITY PRACTICES
Traditional Agrodiversity
(Sikkim)
18. OTHER ENVIRONMENTAL CONVENTIONS
• Convention on International Trade in Endangered Species of Fauna and
Flora, 1973 (CITES)
Principle: to ensure that international trade in specimens of wild
animals and plants does not threaten their survival
IMPLICATIONS IN INDIA
• Signed in 1976
• Constitution of CITES Cell in MOEFCC
• Establishment of Wildlife Crime Control Bureau though
amendment of WLPA, 1972 in 2006
• Objectives is to implement the resolutions and decisions taken
under CITES
• Regional Deputy Director v. Zavaray S. Poonawala and Ors. 2015
19. 19
OTHER ENVIRONMENTAL CONVENTIONS
• UN Convention on Biodiversity
• Signed in 1992
• National Policy and Macro level Action Strategy on Biodiversity
was developed, 1999 & submitted to CBS Secretariat
• Biological Diversity Act, 2002 enacted
• MOEF implemented an externally-aided project on National
Biodiversity Strategy and Action Plan (NBSAP) from 2000-2004
• Ramsar Convention on Wetlands of International Importance, 1971
• The Wetlands (Conservation and Management) Rules, 2010
enacted by the Central govt. to ensure better management,
conservation and prevention of degradation of existing wetlands
• 5 wetlands from India are included in the list of wetlands
20. 20
CONCLUDING REMARKS
• Guiding Principles and international environmental law still
considered “soft law”
• Time-bound follow up on the national commitments submitted by
the State. For eg: UNFCCC and its INDC
• Market mechanism has been often seen as ‘dysfunctional
commodification of nature’
• International environmental law is today subordinated to corporate
interests, which dictate the high consumption patterns in rich countries
(critique)
•International cooperation & administrative acceptance
21. THANK YOU 21
Peace, development and environmental protection are
interdependent and indivisible.
(Principle 25 Rio Declaration)
Ms. Naysa Ahuja
Senior Associate,
Enviro Legal Defence Firm
naysa@eldfindia.com
Editor's Notes
Tragedy of the commons- refers to resource crisis. Environment is limited and the population and its needs are increasing. With this fact known, how to bring about world order.
Ecological interdependence does not respect political or national boundaries
Intl implications of domestic action: such as burning of forests, construction of dams, oil spills, gas leak, GHG emissions, etc.
Regulation of particular activities and products
Biotechnology
Toxic chemicals
Agricultural products
Hazardous waste
Solid waste and sewerage related issues
Radioactive waste
Reservation: a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. (Article 2 (1)(d)) Vienna on laws? NO….The 3 pillars of Governance
The major difficulty is faced in its implementation at the national scenario!!
Why? Because the institutions and various line departments have not imbibed many of such principles.
Is it a complete governance system without institutions for enforcing and interpreting these accepted norms & to be established.
Art 253 of the Constitution- legislation/ parliament has the power to make laws and give effects to any international agreement/ conference. HOWEVER- ENVLT LAW IS LAW OF HOW ADMINISTRATION UNDERSTANDS IT.
Delimitation: In practice, law-makers take into account various elements to define mountains and to determine their boundaries, including natural characteristics (altitude, topography, climate, vegetation) as well as human factors (food security, land-use opportunities and constraints, highland-lowland interactions).
Sustainable Development: “improving the quality of human life in perpetuity, while living within the carrying capacity of supporting ecosystem, and not undermining the diversity and importance of other natural species and systems, indicating a positive change which does not undermine the environment or social systems on which we depend
PP: Take appropriate measures to prevent environmental harm before it occurs, rather than repair damage that has already occurred
Integrated NRM: Inter-relatedness of all natural resources and coordination of policies, programs, plans and projects in the exercise and performance of administrative and statutory functions by government agencies, statutory authorities, local government bodies, and the community
Landscape governance: Inclusion of all relevant stakeholders, institutions, resources, local laws, and practices coexisting within a landscape. Thus, their application must be well coordinated with that of sectoral laws regarding notably agriculture, the environment, land use planning, water, mining, forestry and protected areas
Strengthening of Transboundary cooperation such as Upstream-downstream States & Developed and Developing Countries: Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.
Data collection: Baselines, archiving traditional practicing, reporting project details, detailed assessments, dissemination- decision-making
Translating it into specific state & admin laws
Coordination among the various departments
Integrating Traditional Practices
sustainable Financial
Awareness on impact of climate change on resources and livelihoods
Inter-generational equity: The need to preserve natural resources for the benefit of future generations
Sustainable Use: The aim of exploiting natural resources in a manner which is ‘sustainable’, or ‘prudent’, or ‘rational’, or ‘wise’, or ‘appropriate’
Intra-generational: The ‘equitable’ use of natural resources , which implies that use by one state must take account of the needs of other states
Integration: The need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account in applying environmental objectives.
First attempt to address global environmental concerns on protection of various environmental media: Atmosphere
Land resources
Forests
Biological diversity
Freshwater resources
Oceans, seas and marine living resources
But the process of developing international legal principles have been:
Piecemeal
Gradual
Often reactive to particular incidents or availability of new scientific evidence
Rio declaration- guiding document which influenced the enactment of national laws on the global environmental principles
Agenda 21- Action Plan over 40 Chapter divided in 4 major themes:
* socio-economic dimension- consumption and production pattern, health and habitation
* conservation & management of resources for development
* strengthening the role of groups outside government- NGOs, industries, local government, community, women, youth, farmers and indigenous people
* Means of Implementation: implementation includes science, technology transfer, education, international institutions and financial mechanisms.
SUS DEV: Narmada Bachao Andolan Vs. Union Of India (2000)
“Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation”
N.D. Jayal vs Union of India (2003)
the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ’sustainable development’ cannot be singled out. Therefore, the concept of ’sustainable development’ is to be treated an integral part of ’life’ under Article 21. The weighty concepts like intergenerational equity (State of Himachal Pradesh v. Ganesh Wood Products, ), public trust doctrine (M.C. Mehta v. Kamal Nath , ) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development.
P17- Environmental impact assessment, 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 competent national authority.
Principle of Environmental Democracy:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
Principle 20
Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.
Polluter pays principle
Cost of pollution should be born by the person causing pollution
Doubtful as to whether reached the status of a customary principle of international law
Principle 13
States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage.
Principle 22
Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
P17- Environmental impact assessment, 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 competent national authority.
Principle 13
States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage.
Principle of Environmental Democracy:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
Principle 20
Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.
Principle 22
Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
NGT--The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.
Precautionary principle: ALSO Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to off set the same
Polluter pays principle:
Remediation of damaged environment is part of the process of sustainable development and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology
-Cost of pollution should be born by the person causing pollution
absolute liability for harm
extends not only to compensate the victims of pollution
but also the cost of restoring the environmental degradation
Doubtful as to whether reached the status of a customary principle of international law
Vellore citizen case: The traditional concept that development and ecology are opposed to each other is no longer acceptable. "Sustainable Development is the answer…. During the two decades from Stockholm to Rio "sustainable Development" and came 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…. 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 feature have yet to be finalised by the International Law Jurists.
GIM- ambitious project 'Green India Mission' to improve the quality and quantity of forest cover
Landscape governance
-Know the boundaries
-Stakeholder mapping-inclusion and analysis of their needs, drivers, power, who are influencers- how to transform them.
- Resource mapping with people
Institutional mapping
Mapping of networks and convergence points
Bundle of rights
Partnerships
Sustainable business opportunities- livelihoods
Creating leadership
Recognizing and validating community efforts through legal measures esp. SAPCC
Preserving traditional knowledge through PBRs
Community Intellectual Property
Formal recognition system based through digital libraries
Supreme Court upheld the jurisdiction of CITES in India:
Article 1 of the CITES contemplates two authorities namely the Scientific Authority and the Management Authority for the performing some designated functions stated therein. In light of Article III and Article IX of CITES, for import of any specimen stated under Appendix I, prior approval of the Scientific Authority and the Management Authority was necessary.
