PRABHAS C. SINHA
INTERNATIONAL environmental law aims to evolve an integrated legal approach to environmental management and solve environment related conflicts at regional and global levels. The negotiation of resolutions or recommendations or declarations in important global forums often carries normative weight and facilitates their entry into customary law. The ‘soft approach’ of a nonbinding framework or ‘umbrella legislations’ becomes a step on the way to ‘hard law’ in the form of conventions or agreements or treaties or protocols. Gradually, it incorporates elements of responsibility, liability and compensation followed by penalties, sanctions, implementation and dispute settlement. However, the changing institutional structure of international cooperation and governance has created new trends where conference of parties (COPs) and systems of implementation reviews (SIRs) have become vital elements. Regional laws, bilateral agreements and national instruments play a complimentary role.
Today, the world has more than 200 international environmental laws, about 600 bilateral agreements and more than 150 regional legislations (mostly European Union). Institutions like the United Nations and its specialized agencies; international non-governmental organizations (NGOs) like the International Union for Conservation of Nature (IUCN), Friends of the Earth (FOE), Green-peace International, World Wide Fund for Nature (WWF); regional institutions like the European Union (EU), the Commonwealth, Association of South East Asian Nations (ASEAN), Organization of African Unity (OAU), South Asian Association for Regional Cooperation and so on, as also special purpose institutions like the International Whaling Commission (IWC), International Seabed Authority (ISA), International Tribunal on Law of the Sea (ITLOS), facilitate implementation of these environmental laws.
These institutions have gone beyond providing the normative standards to guide behaviour of particular countries or regions to address various modalities for their effective and timely implementation. Today, the global community has accepted the ‘Framework Convention-Protocol Approach’ to further consolidate the hitherto unwieldy patchwork of international legal instruments, although they are yet to strongly stress ‘issue-linkage’ such as environment and human rights, environment and trade, or environment and security. The broad areas where international agreements on environment have focused include the atmosphere, hazardous substances, marine environment, terrestrial resources, nature conservation, nuclear safety and transboundary resources. Similarly, the key principles followed include sustainable development, intergenerational equity, common but differentiated responsibility, prior informed consent, precautionary principle, polluter pays principle, and permanent sovereignty over natural resources.
To understand the impact of international environmental legislation on Indian environmental laws, we need to analyse their relationship. India, by becoming a signatory to an international environmental instrument, commits to its adherence and compliance at the national level. As early as 1939, India ratified the 1933 London Convention Related to the Preservation of Fauna and Flora in their Natural State. In 1952, it ratified the 1951 Rome International Plant Protection Convention. To fulfill international obligations resulting thereby, Article 253 of the Constitution enables the Indian Parliament to enact laws in this regard. Article 253 reads:
‘Notwithstanding anything contained in the foregoing provisions of this chapter, Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with other country or countries or any decision made at any international conference, association or other body.’
Second, India, by becoming a member of the aforementioned institutions and by giving reference to the principles and practices of international environmental laws, expresses its support to certain environmental instruments. For example, the Indian courts, in particular the higher ones, regularly cite some of these instruments and refer to their provisions while passing a verdict on certain environmental issues.
If one were to name a single international environmental conference which had the deepest impact on the codification of Indian environmental laws, it would be the United Nations Conference on Human Environment, popularly known as the Stockholm Conference, held in 1972. It made 109 recommendations w.r.t. ‘Action Plan for Human Environment’ and adopted 26 principles w.r.t. ‘Declaration on Human Environment’. It was the largest ever international conference with representation from 113 countries and 400 NGOs. Some of the important principle delineated there and subsequently incorporated by India include:
(i) States have sovereign rights to exploit their own resources and pursue their own environmental policies; (ii) States are responsible to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states; and (iii) International matters concerning the protection and improvement of the environment should be handled in a cooperative spirit.
Similarly, some actions plans significant from the Indian perspective included environment and development, natural resource management, identification and control of pollutants of broad international significance, the risks of nuclear energy and environmental impact assessment. It was only after participating in the Stockholm Conference that the Indian Parliament enacted the 42nd Constitutional Amendment Act whereby specific provisions for environment protection were inserted in the form of Fundamental Duties and Directives Principles of State Policy.
Article 48(A) imposes a constitutional obligation on the state to protect and improve the environment and safeguard the forests and wildlife of the country. Article 51(A)(g) imposes a constitutional obligation on the citizens of India to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for all living creatures. Indeed, it would be no exaggeration to comment that Article 48(A) and 51(A)(g) laid down the foundation for sustainable development by outlining a blueprint of social and economic betterment and by providing guidelines for protection and improvement of the environment.
Not only that, prominent environmental laws viz. the Water Act (1974), the Air Act (1981) and the Environment Protection Act (1986) were also enacted in pursuance of the powers conferred by Article 253 of the Constitution, mainly to implement the decisions taken at the Stockholm Conference in 1972. The Air (Pollution Control and Prevention) Act, 1981 in its preamble clearly mentions that this act was enacted to implement the decisions reached at the Stockholm Conference in so far as they relate to the preservation of quality of air and control of air pollution. Radically departing from the earlier approach, this act contained stringent measures in the form of Section 40(1) which provides for prosecution of offences committed by a company or person who, at the time the offence was committed, was directly incharge and was responsible to the company for the conduct of the business. Till today EPA (1986) remains India’s most significant and compressive environmental legislation, enacted to enable coordination of activities of various national authorities concerned with environmental protection and preservation. Moving beyond the Water and Air Acts, EPA stresses both monetary sanction and provision for punishments including imprisonment for any violation of the act.
As significant as the Stockholm Conference was the Rio Summit. This 1992 UN Conference on Environment and Development was concerned with balancing environmental concerns and economic development. The Rio Declaration, i.e. Declaration on Environment and Development outlined 27 principles while Agenda 21, i.e. the Plan of Action consisted of 40 chapters. Its conventions on climate change and biological diversity generated enough heat at the national level to initiate codification of national legislations and their early implementation. After many drafts and redrafts since 1993, the Draft National Biodiversity Act awaits Cabinet approval. Similar initiatives are underway for climate regime, bio-safety and bio-piracy. Other principles and conventions negotiated under the preview of UNCED with significant impact on Indian environmental laws, include the Forest Principles (1992), the Convention on Desertification (1994), the Global Conference on Sustainable Development of Small Island Developing States (1994), and the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (1995).
For an overview of the impact of other international environmental legislations on Indian environmental laws, one has to run through the various international environmental agreements to which India is a party. Some of the most significant ones include:
(i) International Convention for the Regulation of Whaling, 1946;
(ii) The Antarctic Treaty, 1959;
(iii) Convention on the Conservation of Antarctic Marine Living Resources, 1980; and
(iv) United Nations Convention on Law of the Sea.
Being party to the aforesaid conventions India staked its claim in the marine and Antarctic sector. In 1976, India proclaimed its Maritime Zones Act to claim 12 nautical miles (nm) territorial sea, 12 nm contiguous zone, 200 nm exclusive economic zone (EEZ) and rights over the continental shelf. In 1991 it promulgated the Coastal Regulation Zone (CRZ) Act under EPA (1986) to protect its coastal areas and is planning to come up with an Ocean Regulation Zone (ORZ) to protect and conserve its oceanic zones, at least till territorial sea limits. In 1981, it also enacted a law on regulation of fishing by foreign vessels in Indian waters.
(v) The Civil Liability for Oil Pollution Damage, 1969;
(vi) The Fund Convention, 1971; and
(vii) The International Convention for the Prevention of Pollution from Ships, 1973 and the 1978 Protocol (MARPOL)
Being a party to the aforesaid conventions, India has shown its commitment to regulated shipping and preservation and protection of the marine environment. The only notable convention in this category to which India has yet to become a member is the London Dumping Convention, 1972 and its 1976 Protocol. India needs to formulate national covenants to these instruments to facilitate implementation in the long run.
(viii) The ‘Ramsar Convention’, 1971 (on wetlands);
(ix) The World Heritage Convention, 1972;
(x) The Convention on Trade in Endangered Species (CITES), 1973;
(xi) The Convention on Migratory Species, 1979;
(xii) International Tropical Timber Agreement, 1983;
(xiii) FAO International Undertaking on Plant Genetic Resources, 1983; and
(xiv) The Convention on Biological Diversity, 1992.
India has shown its ongoing commitment to protect its flora, fauna, wildlife, forest areas, heritage sites, wetlands and biodiversity by becoming a contracting party to the aforementioned global conventions. The International Wetland Bureau has recognised no less than eight of the worlds largest wetlands in India for protection and conservation.
Similarly, by signing the Kyoto Modification (1992) of CITES, India has shown its commitment to ‘integrated wildlife management programmes’ and ‘regulating traffic in wildlife’. Migratory species agreements between range states are yet to be concluded, although substantive work is underway on wildlife corridors. Under ITTA, India has now changed its categorization from a timber producer country to a timber consuming one. Necessary steps have been taken to prevent international transfer of genetic material. Although national covenants to the aforementioned international instruments exist in the form of the Wildlife (Protection) Act 1972 (as amended in 1993), the Forest (Conservation) Act 1980, EIA Notification Act 1994, the Seeds Act 1966, and the Indian Patents Act 1970, there is increasing pressure to strengthen these laws by filling up the gaps and by formulating new legislations, particularly in the field of biodiversity.
(xv) Vienna Convention for the Protection of the Ozone Layer, 1985;
(xvi) Montreal Protocol on Substances that Deplete the Ozone Layer, 1987 and its London Amendment, 1990;
(xvii) Framework Convention on Climate Change, 1992; and
(xviii) Kyoto Protocol, 1997 on Reduction of Greenhouse gases.
Thereby, India has shown its commitment towards air pollution control, reduction in emission of greenhouse gases and reduction in use of ozone-depleting substances, either by freezing their production or by phasing them out. The Central Pollution Control Board (CPCB) plays an important role in laying down emission standards of various kinds. Besides strengthening the Air Act, 1981 and the Motor Vehicle Act, 1988, the government must enact new legislations in this field, as international pressure for compliance mounts.
Finally, The Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention), 1989.
The national covenant, Hazardous Waste (Management and Handling) Rules, 1989 was enacted under Sections 6, 8 and 25 of EPA, 1986. They apply to hazardous wastes specified in the schedule and the rules give a detailed system of authorization for handling hazardous wastes. It requires the person handling the waste to follow a particular system of storage. It also requires the central government to prepare an inventory of disposal sites. Based on the regional EC environmental law, the ‘Seveso Directive’ and legislations enacted by many other countries, the government enacted the ‘Manufacture, Storage and Import of Hazardous chemicals (MSI) Rules, 1989 under EPA, 1986. It identified 432 chemicals in Schedule I, 189 in Schedule II and 27 in Schedule III. High level controls apply to all sites using chemicals above the second threshold quality and require such sites to prepare and submit a ‘safety report’ akin to the British ‘safety case’.
To supplement such efforts, the Public Liability Insurance Act was enacted in 1991 and the National Environment Tribunal Act was brought into force in 1995. While the former focused on strict liability as against the age-old practice based on the Ryland v. Fletcher rule; the latter with suo moto power provided relief, compensation and restitution to victims of accident while handling hazardous substances and for environmental damages. Noncompliance of the Tribunal’s directions or orders was made punishable with imprisonment upto three years, and a fine of Rs 5 lakh which could extend upto Rs 10 lakh or both.
India by becoming a party to the Uruguay Round, has to now analyse the anti-environmental provisions of GATT. The prevailing crosscurrents between GATT and some major international environmental legislations such as the Montreal Protocol, CITES, CBD, ITTA, ICRW, Basel Convention, and the Kyoto Protocol need close national scrutiny. Agreement on Technical Barriers to Trade (TBT) and Agreement on Sanitary and Phytosanitory Measures too need further evaluation. Similarly, the two exceptions, Article xx(b) and Article xx(g), need reinforcement so that the GATT regime may not continue to place restrictions on trade to promote conservation goals.
India must understand it is not calamitous to be asked to ratify international environmental conventions which are inequitable. Rather the fact is that the bigger and more global issues which concern mankind get marginalised by a minority which assumes for itself a hegemony over the knowledge of what the priorities are for preserving the earth, the means to it, and consequently defines global concerns. In other words, the point is not one of signing on the dotted line or refusing to do so, but one of who decides the agenda, with what empirical, cultural and civilizational know-ledge base, and with what kind of assumed right to either speak for the earth or for mankind.
To illustrate, after the 1972 Stockholm Conference, the UN set up the World Commission on Environment and Development (WCED) in 1984 to examine the environmental problems faced by the world with the perspective of the year 2000 AD. The WCED had a strong western representation with Maurice Strong as member and McNeill as General Secretary. No Third World input in the articulation of the environmental issues was thought necessary by this World Commission. No wonder, in its 1987 Brundtland Report, though the commission did talk about conservation and protection of natural resources globally, it remained silent about acquisition and utilization of these resources by the developed nations. Even today, the natural resources protection and conservation laws are seen in isolation. They need to fit into the overall context of resource acquisition, utilization and distribution laws. Unless the ground rules with respect to acquisition of resources and control over technology to utilize the same are changed, the cause of protection of nature and sustain-able development cannot be further advanced.
Contemporary international environmental law issues are beset with two types of problems, both procedural and substantive. On the substantive side it may be possible for India to intellectually articulate the norms that need to be adopted, or towards which the international community ought to be working. The point is by what procedure or process can India hope that such articulations will ever become matters for consideration as international law at any UN fora. The international environmental law making process is highly skewed during preparation of drafts as well as in the lobbying for their acceptance.
There remains an urgent need to democratise the international law-making process to ensure more effective participation of countries like India in the formulation of international environmental instruments. Increased strengthening of national laws and active participation in formulation and implementation of regional laws could be the other ways for India to enhance its chances of becoming a global player. In this context, treaties such as the 1985 ASEAN Convention on the Environment and the 1989 Commonwealth Heads of Government Langkwai Declaration on the Environment need to be re-evaluated and seriously considered. There is also an urgent need to commence negotiations for such conventions for the SAARC region. India must start bilateral negotiations with neighbouring countries who are party to similar international environmental legislations, in particular, those with inbuilt trade provisions. An active role in South Asian Seas Programme under the UNEP Regional Seas Programme may further boost the chances of regional cooperation.
Evolving coherent state covenants to national environmental laws and national covenants to international environmental legislations to which India is already a party or intends to become a party in near future would be a step in the right direction. Currently, one can only say that India has not benefited due to the impact of international environmental legislations over her national environmental laws. We need to take proactive initiatives to keep pace with rest of the world in this new millennium.
Philippe Sands, Principles of International Environmental Law. Manchester University Press, Manchester, 1995.
Bandopadhyay, Jayal, Schoetti and Singh, India’s Environment: crises and responses. Natraj Publishers, Dehradun, 1985.
R.C. Sharma and P.C. Sinha, India’s Ocean Policy. Khama Publishers, New Delhi, 1994.
K.I. Vibhute, ‘Environment, Development and Law: Indian perspective’, Journal of Indian Law Institute 37(2), 1995, 186-194.
J.D. Leeson, Environmental Law. Pitman Publishing, London, 1995.
A. Rosencranz, et. al., Environmental Law and Policy in India: cases, materials and statutes. Tripathi, New Delhi, 1991.
D.B. Basu, Introduction to the Constitution of India. Prentice-Hall, New Delhi, 1981.