Session 2

INTRODUCTION TO INTERNATIONAL ENVIRONMENTAL LAW

CONTENTS

1. International Environmental Law and Other disciplines

1.1. Introduction

1.2. Linkage of International Environmental Law with other disciplines of law

2. Making and application of International Environmental Law

2.1 Main Sources of International Law

Treaties (or Conventions or Agreements) Custom Generally recognised principles of law Judicial decisions and the work of international jurists Declarations Principles Standards

3. Fundamental Principles governing International Environmental law

3.1. Introduction

3.2. State Sovereignty

3.3. Co-operation

3.4. Preservation and Protection of environment

3.5. Prevention

3.6. Precaution

3.7. The Polluter Pays Principle

3.8. Information and assistance on environmental emergencies

3.9. The Right of Individuals: Equality of Access to Procedures and Non-

discrimination in Environmental Matters

4. Environment Impact Assessment

1. International Environmental Law and other disciplines 1.1. Introduction1 In international law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court. If a treaty or convention does not specify an international forum that has subject matter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member state's domestic court system. This presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation provides for such suits, since the judges who decide the case are residents of the country against which it is brought, potential conflicts of interest arise. Only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice (ICJ), countries must consent to being sued. Thus, it is often impossible to sue a country. The final question in the jurisdictional arena is who may bring a suit. Often, only countries may sue countries. Individual citizens and non-governmental organisations (NGOs) cannot. This has huge repercussions. First, the environmental harm must be large and notorious for a country to notice. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if transboundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to prove with any certainty. The enforcement issue is one where advocates for a safer environment often find themselves stymied. Even if a treaty or convention provides for specific substantive measures to be taken by a country (many treaties merely provide 'frameworks'), specifies a forum for dispute resolution and authorizes sanctions for non-compliance, international law remains largely unenforceable. A country cannot be forced to do what it is not willing to do. One can sanction the country,

1 Diwan Shyam (July 12, 2002), International Environmental Law.

order damages, restrict trade, or, most frequently, publicize non-compliance. But beyond that, if a country will not comply, there is very little to be done. International institutions are generally not responsible for directly implementing and enforcing international environmental law, but they often play important monitoring, informational and diplomatic roles. For example, the 1992 Convention on the Conservation of Biological Diversity (Biodiversity Convention) created a new international body, the Committee on Sustainable Development (CSD). The CSD lacks the power to bring enforcement actions against either governments or private parties, but it plays a role in implementing the Biodiversity Convention. The CSD helps monitor national compliance efforts by requiring member nations to submit annual reports. Through its meetings and publications, the CSD also provides a forum to discuss and debate issues associated with global protection of biological diversity and forests. B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW Consider for a moment why any law is enacted -- domestically or internationally. Some would maintain that it is a moral statement about behaviour that a society cannot tolerate. Some would argue that certain conduct is outlawed to deter that conduct, which is why we also attach a penalty. Some would argue, especially in light of the inefficiencies in enforcement, that laws socialize society's members to behave in a certain way by defining a code. What is the purpose of international environmental law -- is it a moral statement, a deterrence, or a socializing tool? If it is a moral statement, which many of the framework conventions seem to be, is it merely aspirational? Do we honestly believe that all nations will achieve all the ideals expressed in all the agreements? Or do we, as a global community, simply like to think of ourselves as the kind of people who believe in these things? If it is intended as deterrence, why are there not more international forums for dispute resolution, more international bodies empowered to enforce agreements, more substantive requirements, and more 'hard law' self-executing agreements? If there were, would any nation sign them? If it is intended as a socialization technique, is it working? Are nations more environmentally aware? If ultimately all international environmental law is unenforceable, what good is it? Does it accomplish anything to find a country out of compliance with a treaty? What about publicity? What if the economic benefits of a project such as the Narmada Valley Project, are believed by government officials to outweigh the negative effects of the publicity?

The practice of relying on domestic implementing legislation to enforce international environmental agreements leave state parties in the position of having different obligations under the same treaty, depending on how their legislative, executive and judicial bodies interpret and implement the treaty. Is this fair? What about the costs and administrative burdens that are associated with creating and enforcing legislation? Does this put richer countries in a better position to comply with treaties? What is the purpose of the informational roles of international institutions? Will more knowledge about the global environment and our impacts on it lead to better compliance? Or will so many new issues lead to non-compliance due to uncertainty? If it appears to the average citizen that virtually everything she does has a negative environmental impact, will she not cease to try to change any behaviour? C. INDIA'S INTERNATIONAL OBLIGATIONS India has obligations under numerous international treaties and agreements that relate to environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it as national law before it came into force, or by acceding to it after it has come into force. For a treaty to enter into force, the requisite number of countries must ratify the treaty, which then has the force of international law. Specific obligations under any treaty vary, depending on the treaty itself. The nature and degree of compliance and implementation depend on a number of factors, among them: (1) the capabilities and staff of an international institution charged with coordinating national compliance efforts, if there is one; (2) the willingness of other state parties to enforce or comply with the treaty; (3) the political agenda of the government and popular support; (4) trade and diplomatic pressures brought to bear by other countries; and (5) sometimes, judicial or NGO involvement through court cases and publicity. INDIA'S TREATY OBLIGATIONS 1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into force 23 June 1961. India ratified with qualifications, 19 August 1983. 2. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into force 21 December 1975. India acceeded, October 1, 1981.

3. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into force 17 December 1975. India signed, 16 November 1972. 4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976. 5. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978). Entered into force 2 October 1983. India ratified with qualifications, 24 September 1986. 6. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983. India signed, 23 June 1979; ratified 4 May 1982. 7. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April 1982. India ratified, 17 June 1985. 8. United Nations Convention on the Law of the Sea (Montego Bay, 1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994. India signed, 10 December 1982. 9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26 I.L.M. 1529 (1987). Entered into force 22 September 1988. India ratified, 18 March 1991. 10. Protocol on Substances That Deplete the Ozone Layer (Montreal, 1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India acceded, 19 June 1992. 11. Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force 10 August 1992. India acceded, 19 June 1992. 12. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered into force 5 May 1992. India signed, 5 March 1990; ratified 24 June 1992. 13. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March 1994. India signed, 10 June 1992; ratified 1 November 1993.

14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31 I.L.M. 818 (1992). Entered into force 29 December 1993. India signed, 5 June 1992; ratified 18 February 1994. 15. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26 December 1995; India signed, 14 October 1994; ratified 17 December 1996. 16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M. 1016 (1994). Entered into force 1 January 1997. India signed, 17 September 1996. India ratified 17 October 1996. 17. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991). Entered into force 15 January 1998. D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW Norms are general legal principles that are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions, and scholarly writings. The leading norms in the field of international environmental law are addressed below: (1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains 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". (2) Another widely shared norm is the duty of a state to notify and consult with other states when it undertakes an operation that is likely to harm neighbouring countries' environments, such as the construction of a power plant, which may impair air or water quality in downwind or downstream states. (3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically, and disclose these conditions in a report to an international agency or international executive body created by an international agreement, and authorised by the parties to the agreement to collect and publicize such information.

(4) Another emerging norm is the guarantee in the domestic constitutions, laws or executive pronouncements of several states, including India,2 Malaysia, Thailand, Indonesia, Singapore and the Philippines, that all citizens have a right to a decent and healthful environment. In the United States, this fundamental right has been guaranteed by a handful of states but not by the federal government. (5) Most industrialized countries subscribe to the polluter pays principle. This means polluters should internalise the costs of their pollution, control it at its source, and pay for its effects, including remedial or cleanup costs, rather than forcing other states or future generations to bear such costs. This principle has been recognized by the Indian Supreme Court as a 'universal' rule to be applied to domestic polluters as well.3 Moreover, it has been accepted as a fundamental objective of government policy to abate pollution.4 (6) Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks. In the context of municipal law, Justice Kuldip Singh of the Supreme Court has explained the meaning of this principle in the Vellore Citizens' Welfare Forum Case,5 which is excerpted later in this section. (7) Environmental impact assessment is another widely accepted norm of international environmental law. Typically, such an assessment balances economic benefits with environmental costs. The logic of such an assessment dictates that before a project is undertaken, its economic benefits must substantially exceed its environmental costs. India has adopted this norm for select projects which are covered under the Environmental Impact Assessment (EIA) regulations introduced in January, 1994. (8) Another recent norm is to invite the input of non-governmental organizations (NGOs), especially those representing community-based grassroots environmental 2 The fundamental right to life guaranteed under Article 21 of the Indian Constitution has been interpreted by the Supreme Court to include the right to a wholesome environment. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 424. 3 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715. 4 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution para 3.3 (26 February 1992). 5 In A.P. Pollution Control Board v Prof. M.V. Nayudu AIR 1999 SC 812 the Supreme Court traced the development of the precautionary principle.

activists. This NGOs participation ensures that the people who are likely to be most directly affected by environmental accords will have a major role in monitoring and otherwise implementing the accord. This principle is mirrored in the Indian government's domestic pollution control policy and the national conservation policy, and is given statutory recognition in the EIA regulations of 1994. The Supreme Court has urged the government to draw upon the resources of NGOs to prevent environmental degradation.6 (9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and Principles of Sustainable Development. The agreement expressly recognised the principle of sustainable development, defined as using living resources in a manner that 'does not exceed their natural capacity for regeneration' and using 'natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of future generations.' The principle of sustainable development was also acknowledged in the 1987 report Our Common Future, published by the United Nations World Commission on Environment and Development. This report defined sustainable development as 'humanity's ability ... to ensure that [development] meets the need of the present generation without compromising the ability of future generations to meet their needs.' The Supreme Court7 as well as the Indian government have recognised the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals. (10) Intergenerational equity is among the newest norms of international environmental law. It can best be understood not so much as a principle, but rather as an argument in favour of sustainable economic development and natural resource use. If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. It is our children and grandchildren who will be left without forests (and their carbon retention capacities), without vital and productive agricultural land and without water suitable for drinking or sustaining cultivation or aquatic life. Therefore, we must all undertake to pass on to future generations an environment as intact as the one we inherited from the previous generation. Proponents of intergenerational equity maintain that the present generation has a moral obligation to manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the generations that follow. From this moral premise flow certain ecological commandments: 'Do not cut down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduce the land's 6 Indian Council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC 281. 7 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC 2715.

regenerative capacity. Do not pollute water at levels that exceed its natural purification capacity.' In State of Himachal Pradesh v. Ganesh Wood Products8 the Supreme Court recognized the significance of inter-generational equity and held a government department's approval to establish forest-based industry to be invalid because 'it is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter-generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations.' (11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS), developing countries, led by India, articulated the norm that certain resources, such as the deep seabed, are part of the common heritage of mankind and must be shared by all nations. (12) The 1992 Rio de Janeiro Earth Summit articulated the norm of common but different responsibilities. With regard to global environmental concerns such as global climate change or stratospheric ozone layer depletion, all nations have a shared responsibility, but richer nations are better able than poorer nations to take the financial and technological measures necessary to shoulder the responsibility. E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT As mentioned, norms of customary international law evolve through custom and usage. Not all norms are of equal importance however, some being accorded the status of fundamental norms. The category of fundamental norms comes under the doctrine of jus cogens, or the doctrine of peremptory norms. The 1969 Vienna Convention on the Law of Treaties serves to clarify the concept in Article 53 as follows: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The doctrine of jus cogens is extremely limited and extends to only a handful of norms, the most long-standing of which are the prohibitions against the slave

8 AIR 1996 SC 149, 163.

trade, piracy and genocide. Many scholars also believe that the norm expressed in Principle 21 of the Stockholm Convention has risen to jus cogens status. Principle 21 is based on the Roman maxim, sic utero tuo et alienum non laedas, which roughly means 'do not behave in a way that hurts your neighbour.' However, again the question arises, what good does an international peremptory norm, like an international agreement, achieve? Consider some of the other norms addressed above, such as the right to a healthful environment. Is there to be one standard by which all environments are judged, or is it a relative concept? If cutting down trees for firewood destroys the environment, but provides life-sustaining fuel, which right will prevail? Which right should prevail? How much weight does each of the two rights carry when the concept of intergenerational equity is introduced? When considering moral ideals such as the principles of a common heritage and intergenerational equity, what incentives do countries have to try to mould their practices to achieve these ideals? How can countries be better motivated? Is saving the environment for its own sake going to appeal to the majority of people, or does there have to be a more direct benefit, like the idea that we may, by destroying an ecosystem, inadvertently destroy the cure for cancer? What exactly is 'sustainable development'? What is 'sustainable'? Could not intelligent and informed people differ over whether producing more minerals or preserving a landscape is sustainable. If so, which is more important? And what is 'development'? Factories that employ thousands, give a country more industry with which to compete in the world market, but discharge effluents into the water and produce piles of hazardous waste. Do some countries have more of a right to development and less of an obligation to ensure sustainability and vice versa? How much more do industrialised nations need to develop? Have they not gone far enough? Who is to judge? F. EXTRACTS FROM VELLORE CASE At the end of a judicial career, Justice Kuldip Singh of the Supreme Court issued comprehensive directions to clean up the mess created by the leather tanneries of Tamil Nadu. In the following excerpt from this leading case, Justice Singh borrowed international law norms and applied them to the local milieu.

VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA AIR 1996 SC 2715 KULDIP SINGH, J.: The traditional concept that development and ecology are opposed to each other, is no longer acceptable. 'Sustainable Development' is the answer. In the International sphere 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called 'Caring for the Earth' which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions was signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. 'Sustainable Development' as defined by the Brundtland Report means 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalized by the International Law Jurists. Some of the salient principles of 'Sustainable Development', culled-out from Brundtland Report and other international documents, are inter-generational equity; use and conservation of natural resources; environmental protection; the precautionary principle; polluter pays principle; obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries. We are, however, of the view that 'the precautionary principle' and 'the polluter pays' principle are essential features of 'Sustainable Development'. The 'precautionary principle'-- in the context of the municipal law - means:

(i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of

scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

(iii) The 'Onus of proof' is on the actor or the developer/industrialist to show

that his action is environmentally benign.

'The polluter pays' principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country'. The Court ruled that 'Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on'. Consequently the polluting industries are 'Absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas'. The 'polluter pays' principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. [Remedying] the damaged environment is part of the process of 'Sustainable Development' and as such [the] polluter is liable to pay the cost to the individual [who] suffers as well as the cost of reversing the damaged ecology. [The court then set out the provision of the Constitution as well as the Water Act, Air Act and Environment (Protection) Act]. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of

Law. For support we may refer to Justice H.R.Khanna's opinion in Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone Company's case (AIR 1984 SC 667). The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. [The court proceeded to quote a paragraph from Blackstone's commentaries on the Laws of England (1876) in respect of 'nuisance']. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land. G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL OBLIGATIONS Article 51(c) of the Constitution sets out a Directive Principle requiring the state to foster respect for international law and treaty obligations. Article 253 of the Constitution empowers Parliament to make laws implementing India's international obligations as well as any decision made at an international conference, association or other body. Article 253 states : 'Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body'. Entry 13 of the Union List covers : 'Participation in international conferences, associations and other bodies and implementing of decisions made thereat.' In view of the broad range of issues addressed by international conventions, conferences, treaties and agreements, Article 253 read with Entry 13 apparently gives Parliament the power to enact laws on virtually any entry contained in the State List. Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air (Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 19869. The preambles to both laws state that these Acts were passed to implement the decisions reached at the United Nations Conference on the Human Environment held at Stockholm in 1972. At the conference, members of the United Nations agreed to work to preserve the world's natural resources, and called on each country to carry out this goal. The broad language of Article 253 suggests that in the wake of the Stockholm Conference in 1972, Parliament has the power to legislate on all matters linked to

9 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997 SC 811, 844, 846.

the preservation of natural resources. Parliament's use of Article 253 to enact the Air Act and Environment Act confirms this view. H. ADOPTING OVERSEAS NORMS The Supreme Court has occasionally looked at pollution standards abroad to strengthen local environmental regulation. This is illustrated by the Motor Vehicle Pollution case filed by Mr. M.C. Mehta in the Supreme Court. On April 16, 1999, the Supreme Court targetted diesel vehicles, which were blamed for more than 90 per cent of the Nitrogen Oxide and respirable particulate matter (RSPM) in Delhi's air. Noting that the California Air Resource Board had on 27 August 1998 formally designated diesel particulate as a toxic air contaminant, and the amicus curiae's request to suspend the registration of diesel vehicles in Delhi, the court adjourned the case to April 29, 1999 to consider submissions on the issue.10 On the adjourned date a bench headed by Chief Justice A. S. Anand imposed super norms for vehicles registered in the National Capital Region (NCR), which 'appeared appropriate' to the bench.11 The court required all private vehicles registered after 1 June 1999 to conform to Euro I norms and those registered after 1 April 2000 to meet the Euro II norms. Diesel taxi's were prohibited in the NCR unless they conformed to Euro II norms. The Euro norms are European Community standards that have been enforced across Europe. On 13 May 1999,12 the court clarified that what it meant by the 'Euro I norms' were the India 2000 norms, notified by the Central Government on 28 August 1997. In other words, the court advanced the statutory emission norms that were to come into effect on 1 April 2000 to 1 June 1999; and introduced more stringent emission standards (Euro II) with effect from 1 April 2000. The Euro II norms were re-christened 'Bharat Stage II' standards by the Central Government and were notified through the Central Motor Vehicles (Third Amendment) Rules of 2000.

I. GLOBAL ENVIRONMENTAL GROUPS

An emerging trend in India is the impact of Global NGOs in influencing domestic environmental law and policy. This is not an entirely new development, since the assistance of say IUCN in helping the local groups campaigning against the Silent Valley project is well documented. Greenpeace reports played a role in prompting 10 8 1999 (6) SCC 9. 11 9 1999 (6) SCC 12. 12 0 1999 (6) SCC 14

the Supreme Court of India to clamp down on the import of hazardous waste into the country for recycling. It was only pursuant to directions issued by the Supreme Court in the public interest litigation, Research Foundation for Science, Technology and Natural Resource Policy v. Union of India that the import of hazardous waste was banned. Likewise, a petition has been recently filed in the Calcutta High Court relating to the adverse environmental impact of PVC. This petition too relies heavily on a report prepared by Greenpeace. Global NGOs are attempting to spur governments into adopting local regulations on the basis of environmental standards and norms that have been invoked in jurisdictions elsewhere. 1.2. Linkage of International Environmental Law with other disciplines of

law

One of the main characteristics of environmental law is the necessity for an interdisciplinary approach. Nowadays interdisciplinary studies are increasingly necessary in most sciences, where progress can be made only after acquisition and review of essential data coming from other specialties or other field. This is especially true in environmental matters, because of the complexity of the subject. Legislation and the creation of institutions, which are fundamental tasks of law, require knowledge of data which can be furnished only by sciences representing several disciplines, including life and earth sciences, as well as social sciences13. Thus, a chain of biologists, chemists, medical doctors, ecologists, economists, sociologists and lawyers is needed to elaborate and implement environmental norms. The tasks will be to ascertain and further develop the knowledge of environment itself, of its deterioration and of its impact as well as of the possible remedies. The result of scientific investigation must then be integrated into the economic, social and cultural context of a given situation. The final decision is made in the political arena, but without knowing as many possible of the elements of the problem no useful decision can be taken. The best illustration of this process is the discovery by scientists of the depletion of the stratospheric ozone layer. They were the only ones who could state and assess the problem, but the solution, the building up of a regime for protecting the stratospheric ozone molecules needed the cooperation of economists, representatives of the world public opinion and of industry, political decision-makers and, last but not the least, legal experts. The interdisciplinary character, involving various scientific branches as well as scientific uncertainty, imposes frequent adaptations upon environmental law.

13 Introduction to International Environmental Law by Professor Alexander Kiss, Course 1, Programme of training for the Application of Environmental Law, UNITAR

Changes are always a problem for law, one of the objectives of which is to ensure stability in human relations. New legal methods and techniques have to be applied in order to keep pace with the general evolution of environmental sciences. Actors: Traditional international law only recognized states as actors in international legal relations. Called subjects of international law, states have the exclusive right to conclude treaties, to send and receive diplomatic representatives, to give their nationality to individuals according to rules which they determine, to protect their nationality abroad, to adhere to international organizations and to assume international responsibility. After World War II, a debate began over whether individuals and non-state groups could also become subjects of international law. The proliferation of international conventions protecting human rights triggered such debates. According to the present state of international law, individuals are entitled to have rights which can be internationally enforced mostly in the framework of specific treaties guaranteeing their fundamental rights and freedoms and creating specific enforcement mechanisms. While traditional rules are formally applied in international legal relations, the need to protect the environment posed a challenge to international law, and this has fundamentally changed the system. Most of the major environmental rules were triggered by public awareness which then pressured governments to adopt appropriate measures. For example, the public role has been recognized by a growing number of international institutions which accept the presence of representatives of certain non-governmental organizations at designated meetings as observers who can report back to their constituency and who can be authorized to take the floor. Particularly important in this regard is Article 19 of the 1994 Convention to Combat Desertification in those countries experiencing serious drought and desertification. Environmental decisions in the domestic field, a well as at the international level, are not always welcomed by industrialists, farmers, foresters, transporters and the investors who fund their activities. The beginning of the ecological era was characterized by the strong resistance of groups representing certain economic interests. This was starting point for a wave of green products and advertisements praising the environmental qualities of given products, eventually leading to environmental labeling.

At the end, one can speak, at least in a certain measure, of cooperation between these three groups of society. Of course, given the very nature of the biosphere and of its protection and the web of relationships between populations of the different countries, such cooperation also appears in the international field. The preparation of the treaty system for the protection of the stratospheric ozone layer was the best example in this regard; the whole initiative was strongly backed by public opinion represented by non-governmental organizations. The preparation of the Rio Conference amplified such developments: there was a constant pressure of non-governmental organizations on the negotiators and parallel to the governmental conference a forum of NGOs was held with the representatives of 1400 associations sometimes helping, sometimes criticizing but taking a growing part in the international protection of the environment.

2. Making and Application of International Environmental Law 2.1. Introduction

International law includes both the customary rules and usages to which states have given express or tacit assent and the provisions of ratified treaties and conventions. International law is directly and strongly influenced, although not made, by the writings of jurists and publicists, by instructions to diplomatic agents, by important conventions even when they are not ratified, and by arbitral awards. The decisions of the International Court of Justice (ICJ) and of certain national courts, such as prize courts, are considered by some theorists to be a part of international law. In many modern states, international law is by custom or statute regarded as part of national or municipal law.

Since there is no sovereign super national body to enforce international law, some older theorists have denied that it is true law. Nevertheless, international law is recognized as law in practice, and the sanctions for failing to comply, although often less direct, are similar to those of municipal law; they include the force of public opinion, self-help, intervention by third-party states, the sanctions of international organizations such as the United Nations, and, in the last resort, war.

At the beginning of the ecological era and in particular in the 1970s there was a general trend towards the development of environmental regulations, which were considered as the remedy to pollution and to the depletion of the worlds wild flora and fauna. In 1980s disillusion concerning the effectiveness of legal rules for the protection of the environment increased, but this did not halt or even slow down the legislative efforts. In the 1990s with the triumph of the market economy system, many advanced the view that law is not the adequate tool for protecting the environment, whether at an international or a domestic level, because of its ineffectiveness. Two regional instruments inspired by genuinely ecological perspectives can be seen as precursors to our present environmental concepts. The first, the 1933 London Convention Relative to the Preservation of Fauna and Flora in their Natural State, applicable to Africa then largely colonised. It provided for the creation of national parks and strict protection for some species of wild animals. The second instrument is the 1940 Washington Convention on Nature Protection and Wildlife Preservation in Western Hemisphere; which envisages the establishment of reserves and the protection of wild animals and plants especially migratory birds.

The legal instruments of International Law are of two kinds, namely, Hard Laws and Soft Laws:

Hard Law Hard law is a binding legal instrument. Any legal rule or principle contained in such kind of an instrument binds a state in its relations with other states. Hard laws are Legal Instruments which are directly enforceable. They are in form of legally binding agreements or principles which are directly enforceable by national and international bodies. However, hard laws are not necessarily of any relevance in deciding legal disputes between individuals and the state, such as a judicial review action, or as between individuals such as in nuisance law. By way of example, the 1992 Convention for the Protection of the Marine Environment of the North East Atlantic (the OSPAR Convention) requires states to take all possible steps to prevent and eliminate pollution and, in doing so, to apply the polluter pays principle. These provisions matter, if at all, only as between the parties to the Convention. They do not create general obligations of the kind that individuals can rely on. Nor can they be used as the basis for an action against the state or a public body. Soft Law Unlike Hard Laws, Soft Laws are not legally enforceable instruments of law. However, they still hold a great significance in the application of International law since they are Legal Instruments in form of agreements or principles that are meant to provide a basic guideline for nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court.

2.2. Main Sources of International Law

Treaties, Conventions and Agreements

The international conventions are normally concluded in a written form. Treaties are written agreements between states and international organisations that are a part of an International Convention. The various terms such as treaties, conventions and agreements are normally used to denote the same meaning. Basically, there are two types of treaties:

- Bilateral treaties which are concluded between two States only - Multilateral treaties concluded between at least three States; the treaties which have attracted the largest numbers of parties are called universal treaties.

Initially, the international treaty rules were either part of customary international law or belonged to the general principles of law. However, today the rules governing international treaties which are concluded between States in written form are codified. The basic rules governing codification of treaties was laid down in the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969. The Convention was entered into force on 27 January 1980. Although the Vienna Convention is not applicable to treaties concluded before its entry into force as per the provisions of Article 4 of the Convention, it is applied de facto to those too, since it incorporates to a large extent the customary rules which were already applicable before this date. Moreover, the Vienna Convention applies only in the absence of other applicable agreements and is therefore of subsidiary character. The Fundamental Principles to govern treaties as envisaged under the Vienna Treaty are as follows:

1. Free Consent

This international principle embodied in paragraph 3 of the Preamble of the Vienna Convention states that the States may only be bound with their consent, which is only fully given once the convention has been ratified. This principle is the corollary of the prohibition of the threat and use of force contained in the Charter of the United Nations (Article 2 (4)) which legitimates such behaviour only in specific circumstances. The severance or absence of diplomatic (or consular) relations between two or more States does not prevent the conclusion of treaties between those States (Article 74). According to the principle of free consent, international agreements are binding upon the parties and solely upon themselves. These parties cannot create either obligations or rights for third States without their consent. This doctrine is based on the maxim pacta tertiis nec noncent nec prosunt as contained in Article 34. The only explicit exception to this rule appears in Article 22 (1) is an expression of the favor contractus principle and concerns the withdrawal of reservations. Another important principle which can be deducted from the free consent rule is expressed by the latin phrase lex posterior derogat legi priori. According to this rule, a later treaty prevails over an earlier one when two treaties exist which relate

to the same subject-matter (Article 30 paragraph 3). This principle will be dealt with in the context of treaty amendments. It is understood that by giving its consent, a State binds itself in respect of its entire territory and not retroactively, unless a different intention is established (Articles 28 and 29).

2. Good faith

Good faith is of fundamental importance for the conduct of international relations in general and is therefore recognized as an international principle according to the very terms of the Vienna Convention. This is because, if a State does not behave in good faith, peace and international security, the supreme goals of the Charter of the United Nations might eventually be put in jeopardy. Being a subjective element of behaviour, presence or absence of good faith can be difficult to prove. In the last analysis, good or bad faith can only be found in the minds of individuals, in particular of those who happen to have an influence on the conduct of foreign policy and, more specifically, of those whose task it is to negotiate and implement international conventions (Articles 26, 31 (1) and 62 (2)(b)).

3. Pacta sunt servanda

Paragraph 3 of the Preamble, as well as Article 26 of the Convention, deal with the doctrine of pacta sunt servanda. The Doctrine implies that, "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

4. Clausula rebus sic stantibus

According to this principle as understood in a broad sense, extraordinary circumstances can lead to the termination of a treaty. These circumstances can consist either in a material breach of a given treaty by one of the States Parties (Article 60), in a permanent disappearance of an object indispensable for the execution of the treaty (Article 61) or in a fundamental change of circumstances (Article 62, clausula rebus sic stantibus understood in a narrow sense). A fundamental change of circumstances can also occur in the case of the outbreak of hostilities between the States Parties (see Article 73). However, this fact cannot be invoked as a ground for terminating a treaty, if it has been concluded with regard to the possible outbreak of an armed conflict as in the case of the Geneva Conventions of 12 August 1949 (Red Cross Conventions) or the Hague Conventions of 1899 and 1907.

A further extraordinary circumstance foreseen by the Convention is the emergence of a new peremptory norm of general international law also known as jus cogens.. This circumstance is distinct from those enumerated above by the fact that it is of normative and not factual nature. The rebus sic stantibus clause can be considered as an implicit reservation generally affecting the consent expressed by a State to be bound by a treaty. It seems worthwhile mentionning in this context that Argentina has made a reservation to Article 62 in which it made plain that she would not not accept the idea that a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may be invoked as a ground for terminating or withdrawing from the treaty.

5. Favor contractus

This principle expresses the preference of international treaty law for the maintenance and the conclusion of treaties over expiry for reasons of form. Hence, unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of he fact that the number of the parties falls below the number necessary for its entry into force (Article 55). The Convention also sanctions the prohibition to denounce a treaty or to withdraw from it, if it does not foresee itself these forms of termination, unless the parties did not wish for a different solution. Likewise, in order to uphold the validity of treaties, Article 68 allows parties to revoke at any time before they take effect notifications or instruments designed to lead to invalidity, even this is done only in relationship to one single other party. In practice, however, the most important expression of the favor contractus principle is contained in the provisions of the Convention concerning reservations. A reservation has to be accepted implicitely or explicitely by at least one other State Party, it can be withdrawn at any time without the consent of the State or States which had accepted it in the first place (Article 22 (1)). This is the only explicit exception to the free consent principle. Article 74 also talks about favor contractus principle. This provision clarifies that the severance or absence of diplomatic or consular relations does not prevent concerned States to conclude treaties between themselves. A Protocol also has the same legal force, although it is a sub-agreement to a treaty, generally used to flesh out or amend the treaty (e.g. the 1997 Kyoto Protocol contains the carbon emissions reduction that states committed themselves to agreeing to in the 1992 Framework Convention on Climate Change).

Treaties generally come into force a specified number of days after a certain number of states have ratified, although the 1992 Climate Change Convention and 1997 Kyoto Protocol, to give two environmental examples, specify a formula designed to ensure that a core carbon-emitting developed world states must have ratified. There are several factors which determine how quickly a treaty comes into force, most importantly the strictness and clarity of the obligations under it. Ratification usually requires the approval of the legislature. This can delay treaties from coming into force, or from binding key states. But it does mean that treaties will only bind a state once the body responsible for enacting legislation to make the treaty work its approval. This is an important consideration in practice where the executive and legislature may be controlled by different groupings. But this may also be relevant where a convention is agreed by a government which then loses power in an election. However, the success of a treaty will usually depend on whether key states are parties and have ratified.

Custom In addition to treaties and other expressed or ratified agreements that create international law, the International Court of Justice, jurists, the United Nations and its member states consider customary international law, coupled with general principles of law, to be primary sources of international law.

Customary international law is created by implicit rather than explicit agreements, and needs both the practice of states and their conviction that what is done is done not because of usage but because of some felt legal obligation. There are problems in ascertaining exactly what the state does, and the problems of identifying customs in the wider global community. However, customs does offer the potential for flexibility by its uncertainty, and scope for creative argument to develop principles of customary international environmental law. Flexibility here offers possibilities for the development of principles in a way that vagueness elsewhere cannot, e.g. in more developed areas of law and policy. Many commentators, for example, assert that a number of the central principles of environmental law are now established international customary law, at least for those states that are a party to a sufficient number of the many texts that now make reference to them

Customary international law is based on natural law, in the belief that the principles contained are universal and indisputable. The Article 38(1)(b) of the UN charter acknowledges the existence of customary international law of the Statute, incorporated into the Charter by article 92 thereof: "The Court, whose function is to decide in accordance with international law such disputes as are

submitted to it, shall apply... international custom, as evidence of a general practice accepted as law".

The customary international law must be derived from a clear consensus among states. It is often exhibited both by widespread conduct and a discernible sense of obligation, and is expressed through the United Nations bodies.

Customary international law can therefore not be declared by a majority of States for their own purposes. It can be discerned only through actual widespread practice. For example, laws of war were long a matter of customary law before they were codified in the Geneva Conventions and other treaties.

Treaties as custom

Some treaties are the result of codifying existing customary law. While the purpose is to establish a code of general application, its effectiveness depends upon the number of states that ratify or accede to the particular convention. Relatively few such instruments have a sufficient number of parties to be regarded as international law in their own right.

Most multi-lateral treaties fall short of achieving such a near universal degree of formal acceptance, and are dependent upon their provisions being regarded as representing customary international law and, by this indirect route, as binding upon non-parties.

Generally recognized principles of law These are of limited scope, and used where no treaty provision or custom can be utilised. They are mostly used to identify basic principles of procedure on which to decide particular issues e.g. evidence that is admissible. They should not be confused with the principles of international environmental law which are contained either in treaties or which may be distilled from treaties, or principles inferable from customary international law.

The significance of general principles has undoubtedly been lessened by the increased intensity of treaty and institutional relations between states. Nevertheless, certain concepts such as estoppel and equity have been employed in the adjudication of international disputes. For example, a state that has, by its conduct, encouraged another state to believe in the existence of a certain legal or factual situation, and to rely upon that belief, may be estopped from asserting a contrary situation in its dealings.

However, the principles of estoppel and equity in the international context do not retain all the connotations as they do under common law. The reference to the principles as "general" signify that, if rules were to be adapted from municipal law, they should be at a sufficient level of generality to encompass similar rules existing in many municipal systems. Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application.

Judicial decisions and the work of international jurists

According to Article 38(1)(d) of the UN Charter, the ICJ is also to apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law".

Judicial decisions include not just decisions of the International Court of Justice (ICJ) but also those of regional bodies (e.g. the European Court of Justice) and national courts. Previous decisions of the ICJ are binding only between the parties and only as to the case under consideration14, hence their subsidiary nature. They do not create precedents, although in practice they function in not too dissimilar way. The dearth of previous case law may help explain why academic writing is often referred to in international law. The work of jurists is often used to support dissenting opinions where relatively new ground is being covered. A good example of this is the Nuclear Tests II case15 where academic opinion about the requirements of the sustainable development principles was referred to in the dissenting opinion of Judge Weeramantry.

The decisions of international and municipal courts and the publications of academics can also be reffered to by the ICJ not as a source of law as such, but as a means of interpreting the law established in other sources. In practice the ICJ does not refer to domestic decisions although it does invoke its previous case-law.

There is no rule of stare decisis in international law. This implies that the decision of the Court has no binding force except between the parties and in respect of that particular case. Nevertheless, often the Court would refer to its past decisions and advisory opinions to support its explanation of a present case.

The International Court of Justice often considers the draft Articles on international law published by the International Law Commission as authoritative statements on international law. Often they will consider General Assembly resolutions as indicative of customary international law. 14 Article 59, ICJ Statute 15 New Zealand v. France [1995] ICJ Rep 288

Declarations In law, a declaration ordinarily refers to a judement of the court or an award of an arbitration tribunal is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Where the declaration is made by a court, it is usually referred to as a declaratory judgment. Less commonly, where declaratory relief is awarded by an arbitrartor, it is normally called a declaratory award. However, declarations of international conferences are different from a judement or an award.

Declarations of international law are soft laws that are adopted by the parties to a Convention. These declarations are different from normative recommendations. They proclaim general guidelines that the States must follow rather than giving a specific action plan to impliment these guidelines.

Two key documents in international environmental law are the 1992 Rio Declaration on Environment and Development and Development and its Stockholm predecessor of 1972. Such declarations perform a number of functions they consolidate and restate what are already rules of customary international law, they contribute towards moving principles forward to the status of custom and they reflect the agreed aspirations of the international community. A key feature in relation to development of declarations as a source of International Law have been the Brussels and Lugano Conventions on civil jurisdiction and judgements relating to members of the Europian Economic Area.

Principles In addition to hard, binding obligations, treaties may also contain what are essentially principles. These include principles related to duties owed to future generations and to the common but differentiated responsibilities and respective capabilities of the parties. The elaboration of specific principles in the treaty itself, as opposed to the preamble, is increasingly common. Towards the softer end of the spectrum, recommendations may embody the germs of principles or even treaties.

Standards A standard is usually a formal document that establishes uniform engineering or technical criteria, methods, processes and practices. A standard can be developed privately or unilaterally, for example by a corporation, regulatory body, military, etc. Standards can also be developed by groups such as trade unions, and trade associations.

International standards can be a useful way to encourage environmentally beneficial changes in behaviour. There are also some international standards, however, which may be accorded the status of binding law. Perhaps most importantly, some non-legislative international standards provide the benchmark against which international trade restrictions may be justified

Many standards are written as voluntary standards. Interested parties may participate in the development voluntarily and the use of the finished standard is voluntary. The use of some standards is mandatory.

Different kinds of standards:

A standard may be written by a government. For example, defence standard, regulatory body, building code, etc. These de jure standards have the effect of law.

A private organization or a corporation, etc may write a standard for its own use. The use of that standard may be mandatory within that organization. Enforcement is by the organization.

A voluntary standard may be referenced or adopted by a government or regulatory body. Its use becomes mandatory within the scope of its referenced use. Enforcement of these standards is by the government.

A voluntary standard may be referenced of adopted by a private organization or become part of a contract or an internal standard. The voluntary standard becomes mandatory within the scope of that usage or contract.

Standards may be in form of public documents, private documents, published documents, closed and controlled documents, etc.

Annexure: Reference

PRINCIPLES OF INTERNATIONAL TREATY LAW16 Although it is possible to conclude international conventions orally, almost all of them are concluded in written form. Originally, the international treaty rules were either part of customary international law or belonged to the general principles of law; today the rules governing international treaties which are concluded between States in written form are codified. The codification governing this legal area is the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969 which has entered into force on 27 January 1980. Although the Vienna Convention is not applicable to treaties 16 Web Article: http://www.walter.gehr.net/default.html

concluded before its entry into force (Article 4) it is de facto applied to those too, since it incorporates - at least to a large extent - customary rules which were already applicable before this date. Moreover, the Vienna Convention applies only in the absence of other applicable agreements and is therefore of subsidiary character. A Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations dating from 1986 has reproduced the provisions of the Vienna Convention. It reflects to a large extent international customary law, too; however, it has not yet entered into force. Finally, a Vienna Convention on Succession of States in respect of Treaties, concluded in 1978, entered into force in 1996, but since it has been ratified by 15 States only, it cannot be considered as a source of universal international law. Furthermore, it has hardly had any impact on state practice, the noteworthy exception being that practice widely follows the rule according to which a successor State can establish its status as party of a multilateral treaty to which its predecessor State already belonged through a declaration of succession. Generally speaking, one can say that customary international law is rather blurred in this regard. Basically, two types of treaties are distinguished: - bilateral treaties which are concluded between two States only - multilateral treaties concluded between at least three States; the treaties which have attracted the largest numbers of parties are called universal. Amongst multilateral treaties, one can distinguish between "open" and "restricted" treaties. Whereas every State can become a party to the "open" ones, access to the latter category of treaties is excluded for those States which do not belong to the original States Parties, unless an agreement to the contrary has been entered into. Hence, every State can accede to the Vienna Convention (open treaty), but only the signatory States of the Convention on the Regulation of the Navigation on the Danube River from 1948 could originally ratify this (restricted) treaty: hence the accessions of Austria and Germany had to be approved by the original States Parties in 1960 and 1999, respectively, by way of supplementary agreements with these two countries. The Vienna Convention which consists of 85 articles, eight parts and an annex includes and materializes five fundamental legal principles.

Free consent and good faith (bona fide in Latin) are the leading principles which ought to be always followed by States in the course of their relations with one another. The other major principles which also emanate from the Roman Law tradition apply in particular: - either to the conclusion of treaties: - pacta sunt servanda (a treaty is binding upon the parties) - or to the interpretation or application of treaties: - omnia conventio intelligitur rebus sic stantibus (viz. the clausula rebus sic stantibus according to which a fundamental change of circumstances jeopardizes the validity of treaties) - favor contractus (it is better to seek the maintenance rather than the termination of a treaty) These five principles will be subject to closer scrutiny on this website and the application of the two major principles (free consent and good faith) will be the object of a separate chapter. Of course, the delimitation between these principles can be vague, but eventually they are mutually supportive of each other.

3. Fundamental Principles governing International Environmental Law 3.1. Introduction International environmental law includes different sorts of principles. General principles of law are applicable in all legal systems, such as the principle of good faith in the execution of obligations imposed by legal rules. Principles of general international law, such as state sovereignty or the duty to co-operate with other states apply in all interstate relations. Finally principles which are only concern international environmental issues, for example the duty to cooperate, while parts of general international law, are specific to international environmental law.

3.2. State Sovereignty

State sovereignty is one of the oldest principles of general international law. Its meaning is that a State has exclusive jurisdiction on its territory. In other terms, State is the only authority which can adopt obligatory legal rules for its territory, has the executive power and its tribunals are the only ones competent to judge litigation. State territories include not only land but also inland waters within the boundary of the State, whether there are surface waters- rivers including estuaries and lakes- or subsurface waters-underground watersheds. It also includes determined portions of the sea. Finally, the domain of the states exclusive jurisdiction also included the atmosphere above its territory and its territorial waters, but the upper limit is not determined with precision. It is generally accepted that space activities are not under the jurisdiction of territorial states. The consequence of the exclusive power of States on their territory is that no other public authority, be it another state or an intergovernmental organisation, has the right to incentive in the realm of its exclusive competence. Some components of the environment raise serious problems for the application of state sovereignty, since the environment knows no frontier. Migratory species of wild animals, fish stocks crossing the limits of the territorial sea or of the exclusive economic zone, but also pollution of the sea, of rivers and lakes and of the air are not stopped by the limits of territorial jurisdiction. Such situations; lead to conflicts between sovereign rights which can only b solved by international law. Treaties to which a state becomes a contracting party also limits its freedom of action, but such limitations flow from its acceptance of the concerned treaty. At a general level, every state is now involved in a large web of international treaty obligations including thousands of treaties, several thousand of which contain obligations concerning environmental protection. Most of the obligations must be executed on the territory of the contracting parties: the protection of determined

species of wild fauna and flora, the prohibition of the dumping of certain substances into rivers, lakes or the sea, the prevention of atmospheric pollution by adequate constraints imposed upon industries, etc.

3.3. Co-operation

Albeit each sovereign state is free to conduct its external relations according to what it considers to be its interest, modern international law has developed a general obligation to cooperate with other in order to resolve problems which concern the international community. Such obligations results from the very essence of general international law. The thousands of international treaties are also based on the recognition of the need to cooperate with other states at different levels: bilateral, regional or world-wide. The creation of numerous international institutions also corresponds to the necessity of cooperation. In the field of environmental protection, international cooperation is necessary to conserve the environment in its totality, as much for states within their territorial jurisdiction as for space outside all territorial limits, such as the high seas, Antarctica or the outer space. At the regional level cooperation is particularly important for the rational use of shared resources. In this regard most progress has been made concerning the protection and use of transboundary watercourses and international lakes. The contracting parties cooperate on the basis of equality and the reciprocity in order to develop harmonized policies, programmes and strategies covering the relevant catchment area or parts thereof. Finally, the funding of international actions and financial assistance to countries in the order to allow them to comply with their obligations is an essential part of cooperation, especially in the relations between industrialised and developing countries. 3.4. Preservation and Protection of Environment

The principles of preservation and protection and protection of the environment is another essential basis of international environmental law. It designates a specific objective in the framework of an overriding obligation of states to cooperate. However, although all the international instruments concerning the protection and the preservation of the environment aim at this objective in specific fields, the formulation of a general principle creating an overall obligation is exceptional. The term conservation has a narrower scope, but falls under the heading of protection. It is generally used in the field of living resources and is based upon the status quo, mainly demanding maintenance of the conditions necessary doe

continued resource existence. When applied to flora and fauna, conservation was often carried out establishing optimal sustainable yield, which signifies exploitation of the resource without exceeding the limits which guarantee the renewal and thus the sustainability of the stock. A relatively recent concept which is increasingly used in this field is the favorable state of conservation, based not on the idea of exploitation and of yield but on that of ensuring conservation of living resources. 3.5. Prevention

Experience as well as scientific expertise demonstrates that prevention must be the Golden Rule for the environment, both for ecological and economic reasons. It is frequently impossible to remedy environmental injury: the extinction of a species of flora or fauna, erosion, or even the dumping of long-life pollutants into the sea create irreversible situations. Even if the damage is reparable, the costs of rehabilitation are often prohibitive. The objective of almost all international environmental law instruments is to prevent environmental deterioration, whether they concern pollution of the sea, of inland waters, of the atmosphere or the protection of living resourcesThe preventive approach requires each state to exercise due diligence, which means to act reasonably and in good faith and to regulate public and private activities subject to its jurisdiction or control that are possibly harmful to any part of the environment. The principle does not impose an absolute duty to prevent all harm, but rather an obligation on each state to prohibit activities that could cause significant harm to the environment.

3.6. Precaution

While prevention still remains the general basis for environmental protection measures, the precautionary principle can be considered as its most developed form. Like prevention, precaution seeks to avoid environmental harm, but it is to be applied when the consequences of non-action can be particularly serious or irreversible, such as large-scale degradation of the environment or the extinction of a species. However, such concepts are difficult to define and so is scientific uncertainty, which means that the majority for adopting certain conclusions. Thus, the policymakers must consider the circumstances of a given situation and decide which scientific approach is based upon the most credible evidence and most reliable scientific methodology. Such development could be seen as a challenge to the important role of scientists in the protection of the environment. In reality, it is an expansion of the role: decision-makers must adopt measures based upon a general knowledge of the

environment and the problems its protection raises. As in all environmental matters, the public must support the decision makers on a particular problem, but also a general environmental education of the public and of those who take the formal decision. 3.7. The Polluter Pays Principle

The polluter pays principle holds the polluter who creates an environmental harm liable to pay compensation and the costs to remedy that harm. This principle was set out by the OECD as an economic principle and as the most efficient way of allocating costs of pollution prevention and control measures introduced by the public authorities in member countries to encourage rational use of scarce environmental resources and to avoid distortions in international trade and investment. The principle obliges the polluter to incorporate the costs of pollution control in its own costs to internalise then. However, in most cases the polluter will not pay such costs from its own pocket, he will incorporate them in the price of his products. This can raise problems in the international trade, since the producers of countries which have no effective legislation in order to control pollution have a competitive advantage. Thus the polluter pays principle can be really applied in a geographic area where the constraints imposed on the economic actors by environmental legislation-for instance standards limiting polluting discharges into the water or into the atmosphere-are the same for everybody, whether there are political frontiers inside the area or not. Unless the globalisation of free trade leads to the approximation of national environmental legislation, it is doubtful whether the polluter pays principle can be considered as a rule of international environmental law and not an economic objective, the more so, since financial assistance to developing countries in order to help them to control pollution could also be considered contrary to this principle.

3.8. Information and Assistance on Environmental Emergencies

The customary duty to notify the environmental crises has developed in a general fashion as is spelled out more concretely in numerous international treaties. This obligation derives from certain general and well-known principles, including elementary considerations of humanity.17 On the basis of analogous considerations, a duty is imposed to alert states which could be affected of any risk to their environment.

17 International Court of Justice, Reports, 1949, at. 22.

The duty to give relevant information is particularly important in the case of nuclear accidents. The Chernobyl catastrophe of April 26, 1986 underlined the importance of such notification. Each state on whose territory a nuclear accident occurs must notify other states which are or could be physically affected, of the accident, its nature, the moment when it occurred and its exact location. The response to environmental emergencies must be organised to ensure prompt and effective action, in which notification is only the first step. 3.9. The Rights of Individuals: Equality of Access to Procedures and Non

discrimination in Environmental Matters

States are not only entities to be informed of environmental emergencies and of planned activities which may have adverse transfrontier effects. In general framework of the rights of individuals in the field of environmental protection, rules admitting public participation have developed. The principle of equality of access contains four elements: informing non-residents, allowing their participation in decision-making procedures, permitting the possibility of appeal in case of inadequate application of relevant rules during the procedures, and providing remedies in case of damage. One of the main problems of public participation is the definition of those who should receive information. A distinction should be made between two aspects of this problem. On the other hand, the question arises which is geographical area in which residents should be informed, on the other, who should be informed, on the other, who should be informed in that area. The general rule in this field is that all those whose interests might be affected should be informed.

4. Environmental Impact Assessment 4.1. Introduction Environmental Impact Assessment (EIA) is a process that seeks to assess the environmental consequences of a development project even prior to the setting up of such a project. EIA is conducted before the practical implementation of a proposed project. The International Association for Impact Assesment defines EIA as, it is the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken or commitments made.

The purpose of the assessment is to ensure that decision-makers consider environmental impacts before deciding whether to proceed with new projects. EIA procedure requires that a developer or a business owner to submit a written document to a designated agency or a decision making body, describing the probable future environmental impact of the intended project. The procedure is normally integrated into the lisencing schemes or land use planning. Impact implies to the effects caused by a proposed activity on the environment. The environment here includes flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction between these factors. It also includes the assessment of the impact of the proposed project on the human health and safety, as well as the effects on the socio-economic conditions and the cultural heritage resulting from the alterations of these factors. The process of EIA involves an analysis of the likely effects on the environment, recording those effects in a report, undertaking a public consultation exercise on the report, taking into account the comments and the report when making the final decision and informing the public about that decision afterwards. In principle, environmental assessment can be undertaken for individual projects such as a dam, motorway, airport or factory ('Environmental Impact Assessment') or for plans, programmes and policies ('Strategic Environmental Assessment'). This website provides information on the European Community's laws on Environmental Impact Assessment of projects and the Environmental Assessment of certain plans and programmes together with other related information.

4.2. Purpose of EIA EIA serves several purposes. Apart from assessment of the impact of the proposed project on the environment, the process of EIA also serves certain other purposes, a few of which are stated below:

1. It informs the decision makers of the environmental consequences of their decisions

2. It provides information and possibility of participation for the interested public

3. It serves to integrate environmental matters into other spheres of decision making

4. It forms a part of States obligation not to knowingly cause damage to the environment.

The EIA predicts what a specific action can do to the environment. After an EIA analysis, the Precautionary Principle and polluter Pays Principle may be applied to prevent, limit, or require strict liability or insurance coverage to a project, based on its likely harms.

4.3. EIA in Transboundary Context

The Convention on Environmental Impact Assessmant in a Transboundry Context

Environmental threats do not respect national borders. Governments having realized this danger have made several attempts to avert this danger. The primary step towards achieving this goal is that the governments must notify and consult each other on all major projects under consideration that might have adverse environmental impact across borders. The Convention on Environmental Impact Assessmant in a Transboundry Context also known as the Espoo Convention is a key step to bringing together all stakeholders to prevent environmental damage before it occurs. The Convention was adopted in 1991 and entered into force on 10 September 1997.

The Espoo Convention sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries.

The Espoo Convention has till date had three Conference of Parties (COPs).

1. COP 1 Oslo, March 18 to 20, 1998 2. COP 2 Sofia, February 26 to 27, 2001 3. Ex COP (Extraordinary meeting) Kiev, May 21, 2003. - This meeting led

to adoption of the Protocol on Strategic Environmental Assessment. 4. COP 3 Cavtat (Croatia), June 1 to 4, 2004 5. COP 4 Bucharest, from May 19 to 21, 2008

(Refer to the text of the Convention and Protocol annexed to the end.)

EIA in other Conventions

Many provisions of EIA were written into various conventions. Some such Conventions are listed below:

1. Many provisions of EIA were incorporated in the regional seas agreement, beginning with the Kuwait Regional Convention for Cooperation on Protection of Marine Environment from Pollution.

2. United Nations Convention on Law of Seas (UNCLOS) contains an

obligation to assess activities risking significant harm in case of any marine environment, including marine waters under national jurisdiction under Article 206.( Annexure 1)

3. Chapter 22 of Agenda 21 provides for conducting EIA in case of

certain planned activity. (Annexure 2)

4. Article 8 (h) of the Statement on Forests proclaims the necessity to assess environmental impact. (Annexure 3)

5. Article 14 (1) (a) of the Convention on Biological Diversity provides for

EIA in case of both national and international activities. (Annexure 4)

Annexure 1

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

SECTION 4 MONITORING AND ENVIRONMENTAL ASSESSMENT (Article 204 -206)

Article 204 - Monitoring of the risks or effects of pollution

1. States shall, consistent with the rights of other States, endeavor, as far as practicable, directly or through the competent international organizations, to observe, measure, evaluate and analyze, by recognized scientific methods, the risks or effects of pollution of the marine environment.

2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment.

Article 205 - Publication of reports

States shall publish reports of the results obtained pursuant to article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States.

Article 206 - Assessment of potential effects of activities

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potenti