Download Environmentslaw 140623083054 phpapp02 and more Lecture notes Environmental Law in PDF only on Docsity!
International Law on Environments
Important Declaration
1. Stockholm Declaration on Human Environment, 1972
The Declaration consists of 26 principles constituting the general framework for the preservation and conservation of environment. This declaration deals with problems that include minimizing human impact on the earth must be handled at a global level. This declaration has many different impacts on the environment including temporarily stopping the discharge of harmful substances and heat release in large quantities in the air and water protecting wildlife and their habitats in marine and terrestrial ecosystems controlling the growth of the population as a whole The function of the Stockholm Declaration was to maintain and improve the natural environment while focusing mainly on supporting people and their overall needs throughout the process. An international institution of the United Nations that arranges environmental activities and helps developing countries to become environmentally friendly and enforce their practices. Environment protection & human rights, environment and human development, importance of rational planning, science and technology, education, scientific research for addressing environmental problem is acknowledged in this declaration.
2. Rio Declaration on Environment and Development, 1992
The 1992 Rio Declaration on Environment and Development defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. The declaration builds upon the basic ideas concerning the attitudes of individuals and nations towards the environment and development, first identified at the United Nations Conference on the Human Environment (1972). The Rio Declaration states that long term economic progress is only ensured if it is linked with the protection of the environment. If this is to be achieved, then nations must establish a new global partnership involving governments, their people and the key sectors of society. Together human society must assemble international agreements that protect the global environment with responsible development. There are 27 numbers of principles in this declaration. Principles of Integration, Precaution , Polluter Pay , Intergenerational equity, common but differential responsibility, Good neighbourliness, Right to development, poverty eradication, reducing disparities across the world, participation of citizens in protection of environment are duly acknowledged in this declaration.
3. Johannesburg Declaration, 1992
Johennesburg Declaration adopted at WSSD (World Summit on Sustainable Development) contains a set of political commitments. It recognized eradication of poverty as key for achieving sustainable development. It addressed other important issues like patterns of
production and consumption, cultural diversity, health, armed conflicts, gender issues and financing for development. It recognized that globalization added new dimension to environmental issues. It expressed the need for more accountable, effective and democratic international institutions.It is an agreement to focus particularly on "the worldwide conditions that pose severe threats to the sustainable development of our people, which include: chronic hunger; malnutrition; foreign occupation; armed conflict; illicit drug problems; organized crime; corruption; natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and incitement to racial, ethnic, religious and other hatreds; xenophobia; and endemic, communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis.
Principles of International Environmental Law
1. Principal of Sustainable Development WECD (World Commission of Environment & Development) popularized the concept of sustainable development.The guiding principle of sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Sustainable development recognises the interdependence of environmental, social and economic systems and promotes equality and justice through people empowerment and a sense of global citizenship. Whilst we cannot be sure what the future may bring, a preferable future is a more sustainable one. Sustainable development as a concept however, accommodates many other related principles like Principle of Precaution, Polluter pay, Principle of Intergenerational equity, Principle of Common but Differential Responsibility. 2. Polluter Pay The polluter pay principle requires that the cost of pollution should be borne by the persons responsible for causing the pollution and consequential costs. The meaning of this principle and its application to particular cases and situations remain open to interpretation, particularly in relation to the nature and extent of cost included. The practical effects of the principle are that those persons, enterprise or a state responsible for environment damage will have to incur liability. It also calls for internalization of environmental costs. During environmental negotiation , developing countries always highlights the historic responsibility of northern states for the present scale of global pollution and on that basis bargain for the imposition of greater obligations on the North in the implementation of environmental goals. The demands of developing states for the transfer of financial and technological resources to them from the developed states rest in this principle of Polluter Pay. 3. Principle of Precaution It requires preventive action in anticipation of damage. It adheres to proactive approach rather than reactive approach. According to this principle, scientific uncertainty about the possibility
B. UN Law of the Sea Convention This convention establishes a comprehensive legal framework for the protection & preservation of the marine environment. By addressing all source of marine pollution, such as pollution from vessels, sea-bed activities, ocean dumping, and land based sources; this convention promotes continuing improvement in the health of the world’s ocean. It seeks balance economic and environmental interests in general; and the interest of coastal states in the protecting their environment and natural resources with the rights and freedoms of navigation in particular. This convention also impose general obligation on the states to protect and preserve the marine environment, seeks to strike balance between the sovereign and other rights of the states to exploit their natural resources and the duty to preserve and protect marine environment. The convention recognizes the differential capabilities of state in taking measures to protect marine environment. The convention obliges the state not to transfer damage hazards.
2. Global Warming Global warming is a major environment issue of concern to the entire international community. Global warming causes severe impact on environment and human health. Hotter temperature leads to reduced water supplies, erratic weather patterns, desertification, drier soils , stress on food system, polar melting, sea level rise, soil erosion, rise in microbial activity leading to many health infections etc. Climate Change Convention (CCC), 1992 During the Earth Summit, Climate Change Convention 1992 was adopted to meet the challenge of climate change by stabilizing the Green House Gas (GHG) emissions which are responsible for global warming. This Convention relying on the principle of common but differential responsibility imposed legal obligation to cut GHG emission only on the developed states. Kyoto Protocol, 1997 COP (Conference of Parties) met in 1997 to review the implementation of Climate Change Convention and adopted Kyoto Protocol. It set out targets for GHG reductions by the specified individual industrial states during the first commitment period (2008-2012) totalling 5.2 % below the aggregate 1990 emissions. In order to facilitate the fulfilment of the obligations, Kyoto Protocol provide for 3 flexible mechanisms. They are, Joint Implementation, Emission Trading and Clean Development Mechanism (CDM). Kyoto Protocol expires by 2012. The Kyoto gave effect to CCC.
3. Ozone Depletion Depletion of ozone which shields the earth from the harmful solar radiation is another issue of concern. Its adverse impacts include increase of skin cancer, cataract, immune deficiency, damage to crops etc. Chloroflouro Carbons (CFCs) are primarily responsible for ozone depletion. Montreal Protocol, 1987(amended in 1990 & 1992) It seeks to phase out the production of substances responsible for ozone depletion. It is widely adopted instrument. It has undergone several reviews. The Protocol takes into consideration the differing capacities of states in fulfilling the objectives of Protocol. The protocol takes into consideration the differing capacities of states in fulfilling the objectives of Protocol. The protocol makes special provision for the needs of the developing states. CRZ Notification ‘Coastal Zone Management’ India has a vast coastline of 7,516 Km. Out of its one billion populations; nearly 20 % live in the coastal areas. Many highly populated and industrialized cities like Bombay, Madras, Calcutta, Cochin, and Visakhapatnam are located along/near the coastline. There are 11 major and a number of minor ports handling shipping to various degrees of intensity. There are four features of the coastal areas, which make it a particularly sensitive eco-zone. It is an inter-face zone where land meets the sea. It has the highest primary productivity of the planet. It is the tail end ecosystem and consequently receives all the negative externalities of terrestrial pollution. It is where the human population density is highest and is also home to many social communities such as fisher folk. The uniqueness of the coast requires a special and distinct attention for the management of the coastal areas. Law is an important tool for the regulation of human conduct. It has a very useful role in the wise management of the coast. The economic potential and aesthetic value of the coasts has made the coastal land, a most sought after area for
The "no development zone" definition has been changed. It is reduced from 200 metres from the high-tide line to 100 meters only. This has been done to meet increased demands of housing of fishing and other traditional coastal communities. The entire CRZ of the country is classified into different zones, CRZ-I, II, III & IV. ‘ CRZ-I’ (i) Area those that are ecologically sensitive areas (including marine parks,sanctuaries, mangrove parks, mangrove areas, wildlife habitats, heritage areas, historically important areas, area likely to be inundated by global warming etc.) (ii) Area refers to inter-tidal zone lying between LTL & HTL. ‘ CRZ-II’ Areas are those that are already developed close to or upto the shoreline. These developed areas are only those within the municipal limits or in other legally designated urban areas which are already substantially built up and which have been provided with drainage, approach roads and other infrastructural facilities such as water supply and sewage mains. ‘ CRZ-III’ Areas are those which are relatively undisturbed and which don’t belong to either Category I or II. These include the coastal zone in rural areas (developed and undeveloped) and areas within municipal limits or in other legally designated urban areas, which are not substantially built up. By definition then, all rural area classified as CRZ-III and some urban area could also be included in this category. ‘ CRZ-IV’ Consists of those coastal stretches in the Andaman and Nicobar Islands, the Lakshadweep and small islands, except those designated and CRZ- I, II or III. While the general prohibitions apply to all CRZ categories, the permitted activities can be undertaken only in certain areas of these 4 CRZ categories. For each of the CRZ categories, the regulations differ. Agenda 21: The Agenda 21 is the monumental center piece agreement adopted by all participating nations as the Earth Summit in Rio. It is a comprehensive global plan of action to confront and overcome the most pressing environmental, health and social problems facing our planet.The
Conventions, Principles and Declarations of the Earth Summit, provide guidelines to deal with the problems of poverty, hunger, resource consumption and the deterioration of ecosystems. Agenda 21 provides a format for this to happen, detailing an action plan for sustainable development and establishing targets for actions that combine economic development and environmental protection. Agenda 21: Is the blueprint for sustainability in the 21st century. Provides options for combating the deterioration of land, air and water, whilst conserving habitats and their diversity. Deals with poverty, over consumption, health and education. Promotes roles for all. Everyone – governments, business, trade unions, scientists, teachers, indigenous people and youth – have roles to play in achieving sustainable development and should be involved in the decision making processes. Encourages the reduction of environmentally and socially detrimental processes, but within a framework which allows economic success. Presently a nation’s wealth is gauged by its financial standing and the more money the better. Agenda 21 promotes the attitude that a nation’s wealth should also account for the full value of its natural resources. Agenda 21 also encourages nations to consider the costs of environmental degradation. In addition, to reduce the risk of damage, environmental assessments should be carried out and where degradation does occur, those responsible should bear the costs. Agenda 21 highlights the need to eradicate poverty. One of the major problems facing poorer nations is their lack of resources and ability to live sustainably. Developed nations have taken on the responsibilities of assisting poorer nations to reduce their environmental impacts and achieve sustainable development. Agenda 21 asks governments to integrate sustainable development into their national strategies and highlights the importance of involving non- governmental organisations (NGOs) and the public in the process. For sustainable development to work, issues must be tackled on a local, national and international level and nations must work ‘towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system.
case of damage to a person, property and environment due to accidents occurring while handling a hazardous substance. In 1997, the National Environment Appellate authority Act, NEAA, has been enacted to hear appeals from decision relating to restriction of areas in which industries, industrial operation or process can be or can’t be carried out. NET was not established and NEAA has limited application. SO, a comprehensive NGT act has been enacted replacing both NET act 1995 and NEAA 1997. The act established National Green Tribunal to provide speedy and expeditious disposal of cases relating to environment protection and enforcement of any legal right relating to environment and giving necessary relief and compensation. Wild Life Protection Act, 1972(Amended in 2002): The Wildlife Protection Act, 1972, provides for protection to listed species of flora and fauna and establishes a network of ecologically-important protected areas. The Act consists of 60 Sections and VI Schedules- divided into Eight Chapters. The Wildlife Protection Act, 1972 empowers the central and state governments to declare any area a wildlife sanctuary, national park or closed area. There is a blanket ban on carrying out any industrial activity inside these protected areas. It provides for authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks and closed areas; restrict trade or commerce in wild animals or animal articles; and miscellaneous matters. The Act prohibits hunting of animals except with permission of authorized officer when an animal has become dangerous to human life or property or as disabled or diseased as to be beyond recovery. The Act underwent many amendments. An amendment to the Act in 1982, introduced provisions permitting the capture and transportation of wild animals for the scientific management of animal population. An amendment in the year 1991 resulted in the insertion of the special chapters dealing with the protection of specified plants and the regulation of zoos. This also recognized the needs of tribal and forest dwellers and changes were introduced to advance their welfare. The near-total prohibition on hunting was made more effective by the Amendment Act of
Bio diversity Act, 2002: To regulate access to genetic resources and associated sharing arrangements, apart from developing policies and programmes on long term conservation and protection of biological resources and associated knowledge, the Biological Diversity Act, 2002 was promulgated. The National Biodiversity Authority (NBA) set up at Chennai on 1st October
2003 as per the provisions of the Biological Diversity Act, 2002 is mandated to facilitate implementation of the Act. Key Points are: All foreign national require approval from NBA for obtaining Biological Resources. (Section - 3) Indian individuals/entities to seek approval before transferring knowledge / research and material to foreigners. (Section - 4) Prior approval of NBA before applying for any kind of IPR based on research conducted on biological material and or associated knowledge obtained from India. (Section -6) Indians required to provide prior intimation to State Biodiversity Boards for obtaining biological material for commercial purposes. SBB can regulate such access. (Section -7) Growers and cultivators of Biological Diversity and vaids and hakims who are practicing Indian system of medicines and local people exempted. The Water(Prevention & Control of Pollution) Act, 1974: Specific to the Problem of water Pollution, a central act, namely, the water (Control and Prevention of Pollution) Act, 1974, hereafter referred to as ‘the water act’. It was enacted in 1974. The objective of the water Act is to prevent and control water pollution and to maintain/restore wholesomeness of water. According to the Act, ‘Pollution’ means contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid gaseous or solid substances into water( whether directly or indirectly) as may or is likely to create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses or to the life and health of animals, plants or of aquatic organism. Key Points of this Act is as below: ‘Establishment of Boards’ One of the chief contributions of the Act is to establishment of Central Pollution Control Board (CPCB), State Pollution Control Board (SPCB) and joint Boards (by virtue of agreements entered into two or more contiguous state government or between the central Government on behalf of one or more UT and state/state contiguous to such UT.
Failure to comply with directions given under various section of the Act lead to varying kinds of punishment as prescribed in the Act itself. The Water Cess (Prevention & Control of Pollution) Act, 1977: This Act empowers central government to impose Cess on water consumed by listed industries. A rebate of 25% of cess is given to the complying industries and authorities. This act has been adopted as part of economic incentive for controlling pollution and to augment the resource of Pollution Control Boards for effective implementation of water Act. Forest Right Act, 2006: The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is a result of the protracted struggle by the marginal and tribal communities of our country to assert their rights over the forestland over which they were traditionally dependent. This Act is crucial to the rights of millions of tribal and other forest dwellers in different parts of our country as it provides for the restitution of deprived forest rights across India, including both individual rights to cultivated land in forestland and community rights over common property resources. This Act is a potential tool: To empower and strengthen the local self governance To address the livelihood security of the people, leading to poverty alleviation and pro poor growth. To address the issues of Conservation and management of the Natural Resources and conservation governance of India. Air (Prevention & Control), 1977: To implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air (Prevention & Control of Pollution) Act.To enable an integrated approach to environmental problems, the Air Act expanded the authority of the Central and State Boards established in the Water Act to include air pollution control. States which have not constituted the Water Pollution Boards were required to constitute Air Pollution Boards.Under the Air Act, all industries operating within designated air pollution control areas must obtain consent (permit) from the State Boards. Salient Features of Air Act, 1981: The Act deals with the particular type of pollution and presents an
integrated approach to tackle the problem of pollution. Air (Prevention and Control of Pollution) Act 1981 is an appropriate step for the preservation of the natural environment on the Earth which includes the preservation of the quality of air and control of air pollution. In other words, this is an Act to provide for the prevention, control and abatement of air pollution The Air (Prevention and Control of Pollution) Act 1981 has 54 Sections and is divided into seven chapters relating to i) Preliminary, ii) Central and State Boards for the Prevention and Control of Air Pollution, iii) Powers and Functions of Boards, iv) Prevention and Control of Air Pollution, v) Funds, Accounts and Audit, vi) Penalties and Procedures, and vii) Miscellaneous. The Act provides that the State Government, in consultation with the State Board, is empowered to declare any area or areas within the jurisdiction of the concerned State an “Air Pollution Control Area”. The Air Act, 1981 provides that the Central or State Board for prevention, control and abatement of water pollution shall exercise the powers and perform the functions of the Central or State Board for the prevention, control and abatement of air pollution. The Act provides that the State Government in consultation with the State board has a power to give instructions to the registration authority under the Motor Vehicle Act, 1939 (Act 4 of 1939) for ensuring standard for emission from automobiles driven with the help of petrol or diesel. The Act provides for the imposition of restriction on the use of certain industrial plant in any pollution control area without the previous permission and consent of the State Board. The Act provides that the Board has the power to make an application to the Court for restraining persons from causing air pollution. The Act provides that whoever: Operates or establishes any industrial plant in an pollution control area without the consent of the State Board or Allows emission of an air pollutant in excess on the standard laid down by the State Board, or violates any direction issued by the Board, in the above situation, is punished with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine. If this fails or contravention continues, the guilty person is punished with the additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues even after the conviction for the first such failure or contravention. If it continues beyond a period of one year after the date of conviction, the offender shall be Environment Protection Act, 1986:
provide mechanism that would enable an immediate financial relief to the victims. It is based on the principle of no-fault based liability. The Forest Conservation Act, 1980: The Parliament has enacted the Forest (Conservation) Act, 1980, to check further deforestation and conserve forests and to provide for matters connected therewith or ancillary or incidental thereto. This Act has five Sections which deal with conservation of forests. The Act was enacted with the twin objectives under Section 2 of restricting the use of forest land for non-forest purposes, and preventing the de-reservation of forests that have been reserved under the Indian Forest Act, 1927. However, in 1988 the Act was further amended to include two new provisions under Section2, where it sought to restrict leasing of forest land to private individuals, authority, corporations not owned by the Government, and to prevent clear felling of naturally grown trees. The Act empowers the Central Government to constitute a committee to advise the Government with a grant of approval under Section 2, as also on any other matter connected with the conservation of forest and referred to it by the Central Government. The Act provides for the punishment of imprisonment, extendable to fifteen days for the contravention of the provisions of the Act. The Act provides for punishment of offenders from the Government Departments, including Head of the Departments and authorities. However, these persons can escape criminal liabilities if they can prove that: The offence was committed without their knowledge, They had exercised all due diligence to prevent the committing of such offence.
Illustrations:
Bhopal Gas Disaster:
Since 1984, 20,000 people lost their lives in Bhopal, India after a chemical gas spill from a pesticide factory. More than 40 tons of methyl isocyante (MIC) gas created a dense cloud over a resident population of more than half a million people. People woke in their homes to fits of coughing, their lungs filling with fluid. More than 8,000 people were killed in just the first few days following the leak, mainly from cardiac and respiratory arrest. The chemical factory responsible for this disaster belonged to Union Carbide, which negotiated a settlement with the Indian Government in 1989 for $470 million - a total of only $370 to $533 per victim - a sum too small to pay for most medical bills. In 1987, a Bhopal District Court charged Union Carbide officials, including then CEO Warren Anderson, with culpable homicide, grievous assault and other serious offences. In 1992, a warrant was issued for Anderson's arrest. But justice has eluded the people of Bhopal for more than 20 years. Dow, since its merger with Union Carbide, refuses to assume these liabilities in India - or clean up the toxic poisons left behind. More than 20,000 people still live in the vicinity of the factory and are exposed to toxic chemicals through groundwater and soil contamination. A whole new generation continues to get sick, from cancer and birth defects to everyday impacts of aches and pains, rashes, fevers, eruptions of boils, headaches, nausea, lack of appetite, dizziness, and constant exhaustion.
Trail Smelter Arbitration:
From 1925 to 1937, a corporation of Canada (defendant) owned a smelter plant which emitted noxious fumes that caused damage in Washington State in the United States (plaintiff). The United States sought injunctive and declaratory relief, as well as damages for air pollution from Canada
The Ganga Pollution Cases is a loose title given to two court cases that have focused on environmental pollution in the Ganga river basin. The first case began in 1985 and is still underway in the Supreme Court. The second case began in 1997 and is still underway in the High Court of the state of Uttar Pradesh. Both cases are part of the corpus of public interest litigation suits filed by lawyers and citizens against polluters in India. Lawyers and citizens draw upon the body of legislation dealing with water and rivers.
Important Questions:
Public Trust Doctrine:
The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use.The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. 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. Power & Function of State Pollution Control Board: ‘Functions of the Central Board at the National Level’
- Advise the Central Government on any matter concerning prevention and control of water and air pollution and improvement of the quality of air.
- Plan and cause to be executed a nation-wide program for the prevention, control or abatement of water and air pollution;
- Co-ordinate the activities of the State Board and resolve disputes among them;
- Provide technical assistance and guidance to the State Boards, carry out and sponsor investigation and research relating to problems of water and air pollution, and for their prevention, control or abatement;
- Plan and organise training of persons engaged in programme on the prevention, control or abatement of water and air pollution;
- Organise through mass media, a comprehensive mass awareness programme on the prevention, control or abatement of water and air pollution;
- Collect, compile and publish technical and statistical data relating to water and air pollution and the measures devised for their effective prevention, control or abatement;
- Prepare manuals, codes and guidelines relating to treatment and disposal of sewage and trade effluents as well as for stack gas cleaning devices, stacks and ducts;
- Disseminate information in respect of matters relating to water and air pollution and their prevention and control;
- Lay down, modify or annul, in consultation with the State Governments concerned, the standards for stream or well, and lay down standards for the quality of air; and
- Perform such other function as may be prescribed by the Government of India. ‘Functions of the Central Board as State Boards for the Union Territories ’ Advise the Governments of Union Territories with respect to the suitability of any premises or location for carrying on any industry which is likely to pollute a stream or well or cause air pollutions; Lay down standards for treatment of sewage and trade effluents and for emissions from automobiles, industrial plants, and any other polluting source; Evolve efficient methods for disposal of sewage and trade
