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UNIT 1 Introduction to Port and Shipping

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Unit 2 International Environmental Law: An Overview


Objectives
After completion of this unit, the students will be aware of the following topics: Meaning of International Environmental Laws Recent developments in the International Environmental Laws Sources of International Law The International Customary Law Principles of International Environmental Law

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Introduction
International law as a rule stands for the law of nations that states feel themselves adhered to observe. It is the bodily structure of law which regulates the relations among states. International Law is the body of law, which constitutes in greater part the roles of conduct and principles. At a time, states were the only organisations relishing international legal charisma and having duties and rights, but currently, world organization, non-state groups and people are also seen as being international legal organisations in specific situations. The area of international law is still developing. from the time of the 2nd World War, international law has further germinated under the protection of the U.N., to include human rights and international co-operation. In order to deal with the new environmental opportunities which straight having concern with the developmental problems, international environmental law is emerging intensely as a new subdivision of international law.

2.1 Meaning of International Environmental Laws


In simple sense, the law of international environment consists of those essential, procedural and institutionalised rules and regulations of international law which have as their primary

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aim the the environment protection. Environment is generally termed as the object or the area surrounding anything. The definition of environment covers the entirely the scope of the environment and that of culture of human being civilization. On this definition the environment is wider than, but admits, nature, which is related with only those characteristics of the Earth itself. In general, the term environment comprehends anything from the entirely biosphere to the habitat of the smallest animal or a humanbeing. In the last few decades, concern and awareness has been increasing about the necessity of protecting the environment, both domestic as well as internationally. Few concern amongst these concern is given on the law which articulates the being structure and condition behavior. Although international environmental law keeps on developing the existing pacts and treaties, resolutions, and state practice are starting to give a model. This model is mostly produced by states, but it is clear-cut that individuals, nongovernmental organizations and international organizations, are playing an active agent in this field than in nearly any other field of law of nations. Currently, acceleration in the growth and development of international law has been witnessed and particularly on international environmental law.. There is raising evidence that the growth and the development of international law of environment is getting in the way of sustainable development. Furthermore, the international conventions are a growingly significant source of international environmental law. Currently there are number of international conventions which subsist in the area of environmental law covering with specific prospects of environment like marine species, biodiversity, land use, energy, climate change, etc. Although, many of these instruments do not produce obligations on states or on other organizations, which damage the environment, or hold rights to anybody to impose the responsibility created. However, both of these are required if international environmental law is to be an efficient and effective legal instrument and if it is to commence to carry out the aspirations of the international community in concern with the environmental protection.

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2.2 Recent Developments in the International Environmental Laws


Since 1982, there have been 3 sequential Montevideo Programme for the Development & Periodic Review of Environmental Law. Each sets a 10 year scheme in the area of environmental law. The Montevideo Programme have given a long-term strategy for the growth and development and implementation of international environmental law programme of UNEP, which is responsive to the environmental opportunities of each decade. UNEP is presently enforcing Montevideo Programme III followed in February 2001. Montevideo Programme III includes 20 components, coordinated under 3 major themes:

Conservation and Management Effectiveness of Environmental Law Relationship with other fields such as trade, etc.

10 years after the Rio Summit also called as the Earth Summit, in 2002 the world again gathered at Johannesburg to explain some concrete procedures for the implementation of Agenda Twenty One, a blueprint for sustainable growth and development. The Johannesburg Summit acknowledged that since Rio the world had changed and that the biggest challenge to sustainable growth and development currently was the ever increasing split between the rich and poor due to the globalisation. The Summit, also called as the World Summit on Sustainable Development (WSSD), drew together many people apart from the heads of states to describe some difficult opportunities, including improving the lives of people and conserving the natural resources in a world that is developing in population, with ever enhancing demands for food, water, shelter, energy, sanitation, economic security and health services. Inclusiveness and broad participation are the keys to the success of sustainable growth and development. All sectors of society have a role to play in building a future in which global resources are protected. Hence, in addition to govt., representatives from children and youth, business and industry, local authorities, nongovernmental organisations, scientific and technological

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communities, farmers, indigenous people, women, workers and trade unions had an active participation at the Summit. Although the roadmap to achieve the sustainable growth and development was adopted 10 years ago at Rio, there is even a long way to go. The Johannesburg Summit has attempted to bridge the implementation gap of implementation by the proposals for concrete actions. The World Summit on Sustainable Development at Johannesburg is a step ahead, moving from conceptions to activity. The Summit summarised with a clear and univocal argument from world leaders, in the form of a Johannesburg Declaration rechecking their commitment to work towards sustainable growth and development. At the Johannesburg Summit, it became clear that governments will be responsible for implementing the negotiated consequences of the Summit. But the reality is that governments do not have the resources to do everything that has to be done and implementation of sustainable growth and development requires building partnerships among different sectors of society, such as with business and non-governmental organisations.

2.3 Sources of International Law


The sources of international law consist of hard law and soft law. Hard law is basically the treaties (also called as conventions, protocols, and agreements), academic texts, judicial decisions, general principles of law which are legally binding obligations; whereas rules which are not formally binding per se but still play an important role in the field of international environmental law such as declarations, charters, etc. are called as soft law. Soft law informally establishes the acceptable norms of behaviour. The traditional sources of international law, together with acts of international organisations and taking into account hard law and soft law, have given rise to a large body of international legal obligations which relate, directly or indirectly, to the protection of the environment. Article 38 (1) of the Statute of the International Court of Justice gives the following sources of international law:

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International custom, as evidence of general practice accepted as law International conventions (treaties), whether general or particular, establishing rules expressly recognised by the contesting states Judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of law The general principles of law recognised by civilised nations

Although, the above list of sources is not exhaustive. There are other various sources of international law which have emerged in international environmental law. A list of sources of international environmental law is more properly reflected in the list proposed by the International Law Commission (ILC) in 1989, which included those identified in Article 38 (1) as well as binding decisions of international organizations, and judgments of international courts or tribunals.

Treaties
Treaties, also called as protocols, multilateral agreements, and conventions are the main source of international law of environment. In 1969, the Vienna Convention on the Law of Treaties defines treaty as an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation. Thus a convention or a treaty is an instrument which is proposed to create legal rights and responsibilities between the parties. Treaties can be bilateral/ two-sided or multilateral/ manysided. A contract between 2 states is known as bilateral treaty whereas a contract between more than 2 states is known as multilateral treaty. Especially, in the case of environmental law multilateral treaties can also have universal application or apply to a certain area. The area of proposed application of the treaty has an significant impact upon the states number and which states become parties to the treaty.

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Generally, a number of procedures have to be adopted before a treaty comes into effect. The procedure differs depending on the type of treaty; whether it is a bilateral/twosided or multilateral many-sided treaty. As well, particularly in environmental law, the message which a particular treaty is speaking is of extreme importance. A process of treatymaking can best be identified in the following procedures:

1. Negotiation
Depending on the message to be dealt, states discover the assembly or institution to serve as a legislative assembly. If the matter is already covered by the framework treaty, the new legal responsibility could be developed in a protocol or by rectifications to an existent protocol. For instance, in 1992 sustainable use of biodiversity and conservation, which includes the impact of genetically modified organisms on biodiversity, is a field covered by the Convention on Biological Diversity (CBD). Thus, to deal especially with the matter of trade of genetically modified organisms, in 2001 parties to the CBD followed the Biosafety Protocol. In such events the appropriate assembly for negotiation will be or equivalent institution established by the framework agreement or equivalent to the Conference of the Parties. When the assembly for negotiation is agreed, the body lays down a process of negotiation. This can be anything from an informal ad hoc group of experts of the governmental to a formal institutional structure. For example in 1985, negotiation process was established by the UNEP Governing Council for the Vienna Convention for the protection of Ozone layer as an informal structure and. the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change (INC/FCCC) established by the UN General Assembly Resolution 44/12 as an formal institutional structure. Negotiations may be unrestricted in time or established for a fixed period. For instance, in 1985, the negotiation for the Vienna Convention took 5 years on the other side the 1982 UN Convention on Law of the Seas (UNCLOS) took nearly twenty years. But then, in 1992, formal negotiations of the Climate Change Convention and the Biodiversity Convention in 1992 were resolved in just fifteen months, the treaters

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having been demanded to set a text in time for key signature at UNCED.

2. Signature and Ratification


In one case the draft text is negotiated, another step to follow is signature and adoption. A multilateral treaty can be followed by the consent of all states which took part in its composing, though 2/3rds vote may sometimes be enough. In most of the multilateral treaties, it is usual to open them for signatures adopting their decision and normally the states which took part in the negotiation of the treaty or pact sign it. It depends on the terms of the treaty as to whether it comes into effect upon the acknowledgement of a certain number of signatures or needs the deposit of instrument of confirmation from a certain number of states before its coming into effect. Ratification or confirmation is a procedure whereby the relevant authority, generally the executive govt. in a state, notifies the convention depository of that states formal acceptance of the terms of the convention. In the area of environmental law, universal treaties have tended to involve a low number of confirmations for coming into effect. For instance, the Basel Convention on Transboundary Movements of Hazardous Wastes and Their Disposal, 1989, needed 20 ratifications before it came into force. A treaty or pact does not have any legal power during the lag period of time between negotiation, signature, and then confirmation. States which have once and for all recognised a treaty which has come into effect, by way of confirmation or some other act, are denoted to as Contracting Parties. Yet if the treaty or pact has come into effect, it is however possible for the states to become making contractual parties to the special treaty by depositing the instrument of confirmation. In these instances, acts of acceptance, approval, accession, or adherence will be enough. Formerly the treaty has come into effect, it goes adhering upon the contractual parties to execute the duties and responsibilities of the treaty in good faith; a doctrine of pacta sunt servanda.

3. Interpretation of the treaty


The 1969, Vienna Convention also determined the governing rules for the interpretation of treaties. The principal rule is

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that a treaty is to be understood in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The context of the treaty includes the whole of its preamble, text, the annexes and, even the footnotes sometimes. Especially in environmental treaties, the interpretation of a treaty is made easier by the definition of various terms which are found during the treaty. Most environmental treaties include definitions of some of the words or phrases used in the treaty, but constantly there will be words for which states could not reach corresponded definition. Different treaties may determine the same word or phrases differently. For the interpretation of the treaty, subsequent agreements or practice between parties can also be taken into account regarding interpretation of the treaty, and relevant rules of international law applicable in the relations between the parties.

4. Amendment
Bilateral treaties are often modified through way the agreement between the parties, which can in some cases to an entirely new treaty. Though in 1969, the Vienna Convention on Treaties comprises provisions for the formal rectification and amendments of treaties, still many multilateral treaties comprise provisions for their own amendment. Sometimes, the formal process ensures the negotiation of an instrument like a Protocol which becomes a legally adhering instrument once all parties adopt it. In other cases, the functional measure of treaties can be elaborated by the acceptance of Extensions dealing with particular issues. Informal amendment may also occur by word of mouth or by silent agreement of the parties, including decisions or moves or organs laid down under a treaty which may come to a de facto amendment.

2.4 International Customary Law


Customary laws play a secondary part in international environmental law, while they can lay down binding duties for provinces and other fellow members of the international community and may be depended upon in the code of duties and responsibilities in treaties and other adhering acts. The

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implication of custom implies that it produces legal binding for all provinces except those which have persistently disapproved to a pattern and its legal outcomes. To be founded as customary rules, state pattern must satisfy the following 2 criteria:

Opinio juris sive necessitates: The practice should be seen by states as governed by International Law. Constant and uniform usage: Custom must have been used over a period of time. A single precedent is not enough to establish customary rules.

In recent years, there is a tendency to codify customary law into international legal instruments like conventions and treaties. Such codifications make the rules more accurate and more accessible. For instance, the adoption of the U.N. in 1982, Convention on the Law of the Seas which codified customary international law on the law of the sea, also formulated new concepts of the law of the sea.

2.5 Principles of International Environmental Law


These are the principles accepted by municipal law of all or nearly all states. The principle of good faith is the fundamental principle which enforces to nearly all the areas of international law. Amongst other principles, Pacta sund servanda, duty to notify, abuse of rights, are ordinarily used in the international field. Principle of Pacta sund servanda establishes that every treaty in force is adhering upon the parties to it and must be executed by them in good faith. Also, states must workout their rights in a manner matched with their various obligations arising either from treaties or from general law. This is the universal expression of the principle forbidding abuses of rights. Even in the area of international environmental law, this principle has been given significance and is widely used. The U.N. Conference on the Human Environment, Stockholm, 1972, and in 1992, the Rio Declaration on Environment and Development, further restates this principle of abuse of rights.

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A state is also bound to notify the other state of the intended change in its policy affects the other state. This principle has also been further repeated in the Rio Declaration, 1992.

Judicial Decisions and Teachings of Highly Qualified Publicists of Various Nations


Judicial decisions of both domestic and international tribunals, courts, and other institutions are viewed to be the secondary source of international law. While the decisions adopted by judicial bodies are only underling source of international law, the advisory and judgmental opinions of the International Court of Justice (ICJ) and other tribunals are significant as they are often thought of as an affirmation or disclosure of international customary rules. Even in the case of international environmental law, the conclusions of ICJ play a crucial role. For instance, in the Trail Smelter Case relating to transfrontier pollution, the Arbitral Tribunal stated: No State has the right to use or permit the use of its territory in such manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.... In international law, the writings and teachings of the most highly qualified publicists are also looked at an extra underling source of international law. Well-versed writings of scientific and professional associations and of prominent lawyers are important sources of International Environmental Law. For instance, the Helsinki Rules on waters of international rivers which have been formulated by International Law Association are studied as highly authoritative.

Other Emerging Principles of International Environmental Law


In the international field, there are a large number of roles and principles which have came out or are coming out that have an impact on international relationships. These rules or principles are universal in nature and have liberal support and are often used in practice. They are universal in the sense that they are potentially relevant to all fellow members of the international community throughout the range of

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activities which they execute or authorize and in abide by the protection of all aspects of the environment. Some universal principles or rules may ponder customary law, others may ponder emergent legal obligations, and so far others may have still less developed legal status. Sovereignty over Natural Resources The principle of state sovereignty permits provinces within limits laid down by international law to conduct or empower such actions as they choose within their territories including activities which may have contrary effects on their own surroundings. This principle has been rechecked in both the Rio Declarations and Stockholm. Principle Twenty One of the Stockholm Declaration gives that: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. This principle can be divided into 2 parts. 1. Firstly, it underlines that provinces have the sovereign rights over their natural resources and 2. They also have the duty and responsibility not to cause damage to the environment of other states. The organic evolution of the principle of sovereign right over natural resources dates back to the pre Stockholm period. In 1962, the General Assembly of the U.N. adopted the landmark resolution that the rights of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development of the well being of the people of the state concerned. This reflects the right to as an international legal right to permanent sovereignty over natural resources. Again before the Stockholm Declaration, the UN General Assembly declared in 1972, that:

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Each country has the right to formulate, in accordance with its own particular situation and in full enjoyment of its national sovereignty over natural resources, its own national policies on the human environment. The relationship between permanent sovereignty over natural resources and obligation for the environment was formally realized by Principle Twenty One of the Stockholm Declaration. The Rio Declaration reaffirmed the centrality of the principle of sovereignty in the relation with the environment and development. Principle 2 of the Rio Declaration realizes that all states have the right to exploit their own resources pursuant to their own environmental and developmental policies. The principle of permanent sovereignty over natural resources has been oftentimes raised in various forms in the agreements and negotiations of international environmental prospects.. Principle of Preventive Action This principle needs action to be carried out at an early phase and, if possible before damage has actually happened. It needs an action which induces or will cause harm to the environment in encroachment of the measures laid down under the rules of international law to be banned, and has been identified as being of overruling importance in very effective environmental policy, later on it allows activity to be carried out to protect the environment at an early phase. This principle has been supported in various national and international and laws in different forms, like to setset environmental measures and standards, approach to environmental information, and assessment of environmental impact. Precautionary Principle The precautionary principle gives direction in the growth, development and application of international environmental law where there is technological uncertainness. It entails that even where there is no scientific proof available to defend a specific theory, precautions must be considered. The evolution of this principle is striking. on the other hand the preventive principle can be retraced to the international

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environmental treaties and other international acts since at least the 1930s, the precautionary strategy started to come out in international legal instruments in the mid-1980s. This principle got formal acknowledgement in Principle 15 of the Rio Declaration, which declares that: 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. Since 1989, This principle has been followed in several international legal instruments though its exact conceptualization is not indistinguishable in each instrument. Polluter Pays Principle The polluter-pays principle is the necessity that the costs of pollution should be endured by the individual who is responsible for causing contamination and its consequential costs. The purpose is to impel the polluters to internalize all the costs of the environment of their activities so that these are contemplated in the costs of commodities and services they give. The polluter-pays principle in treaty law can be retraced to some of the first instruments laying down minimum rules on civil financial obligation for damage leading from risky and hazardous activities. During 1970s the 1st international organization to refer to the polluter-pays principle was the Organization for Economic Cooperation and Development when great public interest was brought forth in Europe on environmental problems. In spite of the troubles underlying in determining and utilizing the principle, the European Community recognized it as a key part of its policy on environmental affairs. According to Principle 16 of the 1992 Rio Declaration: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the strategy that the polluter should in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and environment. This passage effectively codifies the polluter-pays principle in an optimistic and original strong form.

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Principle of Sustainable Development The notion of sustainable development as a concept came out only in the 1980s. The term sustainable development was first struck by the 1987 Brundtland Report which defined it as: development that meets the needs of the present without compromising the ability of future generations to meet their own needs. This principle was first formally recognised by the Earth Summit in 1992 held at Rio. This definition of sustainable growth and development contains within it 2 concepts: - the idea of limitations imposed by the state, of technology and social organization, on the environments ability to meet present and future requirements; - the concept of requirements, in particular the essential requirements of the worlds poor, to which overriding priority should be given; A report by the World Conservation Strategy defines sustainable development as a set of approaches and tools which respond to 5 broad requirements:

the integration of conservation and development the achievement of equity and social justice the satisfaction of basic human needs & requirements the maintenance of ecological integrity the provision for social self-determination and cultural diversity

Each of these is a objective in itself and a condition to achieve the others, thus emphasizing the interdependence of the different proportions of sustainability and the requirement for an integrated, interdisciplinary strategy to the achievement of development which is sustainable.
THE RIO SUMMIT WAS A SUBSTANTIAL MILESTONE THAT SET A FRESH AGENDA FOR SUSTAINABLE DEVELOPMENT. 10 YEARS AFTER THE RIO SUMMIT THE WORLD IS STILL DOING STRUGGLE FOR IMPLEMENTING THE CONCEPT OF SUSTAINABLE DEVELOPMENT. LATELY, IN THE YEAR 2002, THE WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT WAS HELD IN JOHANNESBURG FOR IMPLEMENTING THE DECISIONS BROUGHT AT THE UNCED REGARDING SUSTAINABLE DEVELOPMENT. THE JOHANNESBURG

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DECLARATION ALSO UNDERLINED THE WORLDS COMMITMENT TO SUSTAINABLE DEVELOPMENT.DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW

1972 UN Conference on Human Environment (Stockholm) Establishment of UNEP 1978 UNEP Draft Principles 1980 World Conservation Strategy 1981 Programme for the Development and Periodic Review of Environmental Law (Montevideo ProgrammeI) 1982 World Charter for Nature 1983 World Commission on Environment and Development (Brundtland Commission) set up 1987 Brundtland Report, Our Common Future 1991 Caring for the Earth: Strategy for Sustainable Living 1992 UN Conference on Environment and Development: Earth Summit UN Commission on Sustainable Development (CSD) established adoption of Rio Declaration and Agenda 21 1993 Revised Montevideo ProgrammeII 1993-1997 UN CSD First Five-Year Plan 1997 Rio Summit +5 Review, New York/ Nairobi Declaration 2000 Malmo Declaration 2001 Montevideo ProgrammeIII 2002 World Summit on Sustainable Development (WSSD) Johannesburg Declaration and Plan of Implementation

2.6 Enforcement and Compliance by India

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Throughout the years, together with a spreading of environmental awareness, there has been a change in the traditionally-held perception that there is a trade-off between economic growth and environmental quality and as people pertained conceive that the both perceptions are necessarily complementary. The current concentration on environment is not new; environmental considerations have been an integral part of the culture of India. The requirement for conservation and sustainable utility of natural resources has been explicit in Indian scriptures which are more than three thousand years old and is reflected in the legislative, constitutional, and policy framework as also in the international commitments of the nation. Internationally, India has played an active part in the environmental protection concern. in implementing the international commitments the major challenge for India is to fight with poverty and also sustainable development. In June 1972, Mrs. Indira Gandhi, the then Prime Minister of India, stressed at the 1st UN-sponsored Conference on Environment that poverty is the most speculative form of pollution and the most pressing issue facing the international community. Later on then, India has been prompting the industrialised world that so long as poverty continues the main obstacle in its path to the development, its efforts to protect the conserve resources and environment would not bear the essential fruits. For India, likewise for other nations of the South, removal of impoverishment and environmental protection are 2 sides of the same coin. In 1972, it was only after the UN Conference on the Human Environment at Stockholm in 1972 that a considerablydeveloped framework of environmental legislations came into existence. A new authority for environmental protection called as National Council for Environmental Policy and Planning within the Department of Science and Technology was set up in 1972. This Council later evolved into a fully fledged Ministry of Environment and Forests in 1985, which currently is the peak body of in the nation to regulate and ensure the environmental protection. Ministry of Environment and Forests is also the guest agency for almost all of the transnational agreements on environmental protection. It was only since the Stockholm Conference that the

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Constitution of Indian Constitution was amended to comprise the provisions concern with the environmental protection. The Indian Constitution calls upon the State to protect and enhance the environment and to safeguard the wildlife and the forests of the nation. It also levies a duty on every individual to protect and enhance the natural environment including rivers, forests,, wildlife, lakes and to have compassion for living creatures. The commitment of the constitution was the major step taken by any country on Earth like India became the first nation to change its constitution to protect its environment. Afterward the 1970s, an broad network of environmental legislation has developed in the nation. in India, the Environment Protection Act, 1986, is the uniting legislation handling with the protection of environment in India. Moreover there are particular laws on the basis of sector. A policy framework has also been formulated to complement the provisions of the legislation. In 1992, The Policy Statement on Environment and Development and the Policy Statement for Abatement of Pollution and the National Conservation Strategy were disclosed by the Ministry of Environment and Forests to develop and promote initiatives for the protection and enhancement of the environment. In 1992, it was only after the Rio Conference that the Environmental Action Programme was formulated in 1993 with the aim of improving services and integrating environmental circumstances with development programme. Agenda Twenty One which is an result of the Rio Conference was implemented in India at a much larger scale. India has been very active in implementing all the objectives of Agenda Twenty One with the active involvement of all stakeholders like the govt., international organizations, business, non-governmental organizations, and citizen groups. Since the Rio Conference, wide efforts have been done by govt. and international organizations to integrate economic, environmental,, and social objectives into decision-making by new policies and approaches for sustainable development or by conforming existing plans and policies. As a nation profoundly dedicated to enhance the quality of life of its people and actively involved with the international alignment

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towards sustainable development, the Summit offered India an opportunity to recommit itself to the developmental rules and principles that have long guided the country. These principles are engrafted in the planning process of the nation and thus the requirement for a distinct domestic strategy for sustainable development was not found. Apart from development policy and legislative framework in consonance to sustainable development, India has projected appropriate models for sustainable development in maintaining with domestic priorities. The Indian govt. has laid down sustained business concern with the people by channelising the management of crucial sectors of the economy to village councils and therefore authorising them to manage their own resources and accomplish sustainable livelihoods. These initiatives include: watershed development committees, joint forest management committees, participatory irrigation management committees.

India also played an active part in following up the Millennium Development Goals adopted at the World Summit on Sustainable Development in Johannesburg in 2002. Sustainability concerns have become an intrinsic factor of the planning procedure. The 9th 5-Year Plan (19972002) explicitly recognized the synergy between health environment,, & development and identified as one of its core aims the requirement to ensure the environmental sustainability of the process of development through social participation and mobilization of people at all levels. Even in the 10th 5-Year Plan (20022007) the balancing of population growth and economic growth with environmental conservation is comprehended as one of the main objects. During the preceding decade, India has sanctioned many of the international conventions related to environment protection and has chosen a number of initiatives to carry out them at the domestic level. Though India has been very dynamic in all the international assemblies relating to environmental protection and has ratified almost all the multilateral agreements relating to the

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environment except a very few, however a lot of requirements to be done at the national level for their execution. Furthermore the North-South divide on some of the major problems concerning to the environment plays a very significant role in all these negotiations related to the environment. The real opportunity before India is how to maintain its environment, meet the basic requirements of its growing population on an loaded down land, satisfy the necessary energy demands of the people, and yet leave a legacy for future generations so that they may also enjoy the premium of nature which the present generation is recklessly tapping.

Environmental Legislations
As part of its campaign on environmentally-friendly environment, Parliament of India has acted out country wide comprehensive laws. In 1974, one of the major environmental enactments came just 2 years after the Stockholm Conference. The Water Prevention and Control of Pollution Act was came about for the intention of prevention and control of water pollution and for preserving and restoring the quality of water. The Water Act represented India's first endeavour to deal with an environmental issue from a legal perspective. From this period onwards, the Central Govt. has been viewed as highly environmentally active. In 1976, the Indian Constitution was amended to enclose a separate fundamental obligations chapter. The 1980s found the creation of many environmental-specific organizations. In 1980, the Forest Conservation Act was enacted for the conservation of forests and to assure on promoting deforestation. The Air Prevention and Control of Pollution Act of 1981 was passed by raising the Central Governmentss power under Art 253. The Air Act contained several marking features. The preamble of the Air Act explicitly discloses that the Act represents an execution of the decisions made at the Stockholm Conference. Also, a notification relating to Noise Pollution Rules was created in 2000 with the aim of maintaining Ambient Air Quality Standards in respect of noise.

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In the wake of the Bhopal gas tragedy, the Govt. of India acted out the Environment Protection Act, 1986. The laws that was prior to the enactment of Environment Protection Act fundamentally concentrated on specific pollution (such as air and water). The requirement for a single authority which could accept the lead function for environmental protection was responded through the enactment of Environment Protection Act. It is in the form of an umbrella legislation planned to give a model for Central Govt. to organize the activities of various state and central authorities laid down under previous laws. It is also in the form of an modifying law, which assigns wide powers to the administrator to enable bureaucrats to figure necessary rules and regulations. Apart from this, several notifications and rules have also been made, some of which include: the Hazardous Wastes (Management and Handling) Rules in 1989, the Biomedical Wastes (Management and Handling) Rules in 1998, Recycled Plastics (Manufacture and Usage) Rules 1999, Environment (Silting for Industrial Projects) Rules 1999 and the Municipal Solid Wastes Handling) Rules in 2000. (Management and

In addition to these environmental-specific legislations, recognizing that there is no comprehensive legislation dealing with Indian biodiversity, and to meet its international responsibility under the Convention on Bio-Diversity, the Govt. of India has enacted the Biological Diversity Act, 2002. It is a contradiction that notwithstanding the presence of such diverse laws, the pollution rate has passed over the dead line. This is likely because due to the reason that the law is so made more complex and undefined that even the skilful person may not experience the elaborations of it.

Constitutional Mandate on Environmental Protection

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The Constitution of India primitively adopted, did not contain any specific and direct provision involving the protection of natural environment. Possibly, the framers of the Indian Constitution, at that time, believed it as a negligible trouble. That is likely why it did not even hold the expression environment. In point of fact, it contained only a few Directives to the State on some aspects relating to agriculture, public health, and animal husbandry. These Directives were and are still not judicially enforceable. Nevertheless, on a careful analysis of various provisions prior to the 42nd Constitutional Amendment, reveals that some of the Directive Principles of State Policy showed a slight inclination towards environmental protection. It can be inferred from Art 39(b), Art 47, Art 48 and Art 49. These directive principles individually and collectively enforce a duty on the State to create considerations to enhance the general wellness level in the nation and to protect and enhance the natural environment. Considering the expression material resources of the community present in Art 39(b) it was held in Assam Sillimanite Ltd. v. Union of India that material resources covers all things, which are capable of raising wealth for the community. It has been held to include such resources in the hands of the private individuals and not only those, which have already vested in the State. The Supreme Court in Municipal Council, Ratlam v. Vardhichand noted that the State will recognize that Art 47 makes it a predominant principle of governing body that are steps taken for the enhancement of public wellness as amongst its primary obligations. From these Articles, one can interpret that the Indian Constitution was not as environmentally blind as proposed by some prominent judges. Although the word environment was not expressly used in the Constitution, the object of the above Articles was to preserve the natural resources, thereby protecting the environment. Although, it must be recognized that only with the strengthening of public concern judicial proceeding and an enhanced dedication from the Central Govt. during the late 1970s, did an enlargement of

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constitutional provisions to include prospects relating to the environment occurrence.

Forty-Second Constitutional Amendments


Observing of the Stockholm Conference and the growing consciousness of the environmental crises, the Constitution of India was amended in the year 1976. This gave it an environmental attribute and added to it direct provisions for the preservation of ecological and biological diversity. Art 48A, a directive principle, was inserted into Part IV of the Constitution, reading as follows: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Correspondingly, an obligation was imposed on the State through Art 51 A(g) in Part IVA, casts a duty on every citizen of India stating: It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. In M.K. Janardhanam v. District Collector, Tiruvallur, the Madras High Court has noticed that the word used (in Art 48A and Art 51A) is protect and enhance which means that the word appears to reflect affirmative governmental action to enhance the quality of the surroundings and not just to maintain the environment in its degraded form. Consequently, the constitution makes 2 fold provisions 1. On one hand, it gives directions to the State for the protection and enhancement of environment and 2. On the other, it casts an obligation on every citizen to assist in the preservation of natural environment.

Role of Judiciary
The judicial system, to accomplish its constitutional responsibilities was and is always prepared to issue appropriate directions, orders, and judicial writ against those individuals who cause environmental contamination and ecological imbalance. This is apparent from a plethora of cases decided by commencing from the Ratlam Municipality

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Case. This case aroused the awareness of the judicial system to a problem which had not appealed much attention earlier. The Supreme Court responded with equal anxiety and raised the issue to come within the mandate of the Constitution. The Supreme Court, in Rural Litigation and Entitlement Kendra v. State of U.P. governed the closure of certain limestone quarries causing large scale pollution and negatively affecting the health and safety of the people living in the region. Likewise, in M.C. Mehta v. Union of India, the court headed an industry manufacturing risky and deadly chemicals and gases posing risk to health and life of workingmen and individuals living in its locality, to take all requisite safety measures before reopening the plant. In an attempt to maintain the purity and holiness of the River Ganga, workplaces spoiling the sacred river were ordered to be shut down. Holding that the Govt. has no power to sanction lease of the land vested in the Municipality for being used as open space for public use, the Supreme Court in Virender Gaur v. State of Haryana, the Court explicitly admitted that: The word environment is of broad spectrum which brings within its ambit hygienic atmosphere and ecological balance. It is therefore, not only the duty of the State but also duty of every citizen to maintain hygienic environment. The State, in particular has duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment Moreover in S. Jagannath v. Union of India, the Supreme Court has admitted that establishing shrimp culture farms within the restricted areas and in ecologically delicate maritime regions has an contrary effect on the coastal ecology, environment, and economics and therefore, they cannot be allowed to operate. In Vijay Singh Puniya v. State of Rajasthan, the High Court of Rajasthan it was noticed that any person who upsets the ecological balance or pollutes, degrades, and tinkers with the gifts of nature like water, air, sea, river and other components of the nature, he not only dishonours the fundamental right ensured under Art 21 of the Constitution,

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but also violates the fundamental duty to protect the environment under Art 51A (g). Judicial activism in India allows for an impulsion to the movement against contamination. The track for the involvement of people in the judicial process has been proven. If this had not been exercised so, the system would have collapsed and broke down under the encumbrance of its insensitivity. Adhering to a long course of active interpretation of constitutional, legislative clauses by the judiciary and energetic efforts of some environmentally-friendly citizens, the scenario of environment of India has made a positive change. The Indian environmental law was in a deep slumber. But currently, the environmental awareness imported by the courts of justice, unified with subsequent legislative attempts in the recent years, introduced the right to environment as a key fundamental right. (Refer Table from Annexure I)

2.7 Student Activity


Make a draft of the recent developments of the International Customary Laws.

2.8 Summary
From the time the U.N. Stockholm Conference on the Human Environment, international environmental law has seen overthe-top modifications in the last 3 decades. In 1972, there were only about 3 dozen multilateral pacts related with the environment. Currently there are more than nine hundred instruments amply related with the protection of the environment.. There is a huge expansion programme in this wide area as mentioned in the agreements. The international law rules have become very complicated and technical because the considerations related to the environment are no longer covered in isolation. They are regarded with relevancy to other areas like science, economics, social science, and other social areas. Presently, after the World Summit on Sustainable Development in 2002, international environmental law has evolved as an instrument which

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signifies the implementation techniques which are effective, practical,, and satisfactory to most of the international community members. This strategy identifies the law of international environment as multi-disciplinary in nature and established on natural science format and a philosophical premise that include circumstances of both the consequences of the consumption patterns, population and role of human beings in the worldwide ecosystem. The new pattern is a network of intergovernmental organizations, states, transnational corporations, nongovernmental organizations (national and international), and firms associations that are elaborately linked with the binding and nonbinding or incompletely binding international legal instruments and related institutions.

2.9 Keywords
Customary laws: These laws play a secondary part in international environmental law, while they can lay down binding duties for provinces. Principles of International Environmental Law: These are the principles accepted by municipal law of all or nearly all states. Precautionary Principle: The principle gives direction in the growth, development and application of international environmental law where there is technological uncertainness.

2.10 Review Questions


1. Explain the meaning of International Environmental Laws 2. What are the recent developments in the International Environmental Laws? 3. Explain the sources of International Law. 4. Define the International Customary Law. 5. Describe the principles of International Environmental Law.

2.11 Further Readings

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Books Web Readings


http://www.legalserviceindia.com/articles/evn.htm http://awsassets.wwfindia.org/downloads/mea_handbook_cel. pdf