Environment and the law

Countries are now serious about environmental degradation and are using international environmental law to tackle this crisis, say JOYEETA BANERJEE and RAJDEEP BANERJEE.

Environment and the law

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“The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.” Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion, I.C.J., 1996)

In the last fifty years international environmental law has evolved at a brisk speed. Recent years have witnessed a heightened awareness about serious environmental problems. The international community is now much concerned about rapid environmental degradation. Such environmental concerns have an international dimension in many aspects. Pollution generated from a particular site within a country can have direct deleterious effects on adjoining countries. Also, it is clear that various environmental problems cannot be solved unilaterally by countries and cooperation among them is a must for successfully tackling many environmental challenges like emission of green-house gases, climate change, ozone depletion etc.

During the early years in international environmental law, there were very few transboundary cases dealing with environmental issues. Trail Smelter Arbitration between Canada and the United States (1941) and the Lac Lanoux Arbitration between France and Spain (1957) are two wellknown arbitrations. Trail Smelter Arbitration was primarily regarding the obligation not to cause transboundary harm whereas the latter dealt with prior notification, consultation, and negotiation.


In 1972 the first major United Nations Conference for protecting the earth was held in Stockholm. This UN Conference on human environment marked a watershed in international relations and for the first time placed the issue of environmental protection on the official agenda of international policy and law. Later, in 1992, the United Nations Conference on Environment and Development (UNCED) was held in Rio de Janerio. This Earth Summit led to an agreement on Climate Change Convention as well as the Convention on Biological Diversity. Agenda 21 was also adopted in this conference. It is a non-binding action plan of the United Nations with regard to sustainable development. It is a historic document which envisages a vast work programme for the 21st century and aims to achieve global sustainable development.

Twenty years later, in 2012, United Nations Conference was again held in Rio, known as Rio +20, which sought to establish an institutional framework for sustainable development.

Reduction of green-house gases and prevention of global warming are key challenges faced by the international community. Kyoto protocol is an international agreement linked to the UNFCCC which commits its parties by setting internationally binding emission targets. It puts a heavier burden on developed nations under the principle of ‘common but differentiated responsibilities’. In 2012, the Doha amendment to the Kyoto protocol was adopted which included new commitments for the state parties. Under the Kyoto protocol, targets have been set to reduce green-house gas emissions by at least 18 per cent below 1990 levels in the eight-year period from 2013 to 2020. The recent Paris Agreement, another landmark agreement, with its emphasis on consensus-building, allows for voluntary and nationally determined targets. This agreement envisages emission cuts for a cleaner world. But the recent withdrawal of United States of America from the agreement will have far-reaching implications.

The need to reconcile economic development with protection of the environment is now aptly expressed in the concept of sustainable development. As per the famous Brundtland Report, sustainable development is development that meets the need of the present without compromising the ability of future generations to meet their own needs.

The International Court of Justice in various cases has considered environmental degradation while interpreting international law provisions. These cases include the Nuclear Test cases (Australia/New Zealand v. France, ICJ, 1974) which dealt with the anguish of the Australian and New Zealand governments over the pollution caused by the atmospheric nuclear tests carried out by the French Government. The French Government had carried out atmospheric tests of nuclear devices in the territory of French Polynesia, in the years 1966- 1972. The main firing site used was Mururoa atoll some 6,000 kilometres to the east of the Australia.

Radio-active explosions release radio-active debris which are initially airborne, usually in the form of small particles. This airborne radio-activity is then deposited on the earth’s surface which is then referred to as radioactive fall-out. The amount of radio-activity deposited at a given location can depend on multitude of factors like the nature and characteristics of the nuclear weapon and the explosion, distance from the site of the explosion and weather conditions. Testing of nuclear devices in the atmosphere entails the release into the atmosphere, and the consequent dissipation in varying degrees throughout the world, of measurable quantities of radioactive matter.

Australia complained to the World Court that such nuclear testing in the atmosphere had resulted in the release of radioactive nuclear waste into the atmosphere which could lead to serious health hazards. But the World Court instead of giving a definitive pronouncement on the legality of such nuclear tests, placed reliance on France’s public declaration that it would no longer conduct atmospheric nuclear tests, refused to pronounce on legality.

After almost two decades, in 1995, when the President of the French Republic declared that it would conduct a series of underground nuclear weapons test, New Zealand again approached the World Court with a request for an examination of the situation as there was a specific holding in the 1974 judgment that “once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute …”.

But the Court again refused to give a judgment on the legality of the nuclear tests as it reasoned that the 1974 judgment dealt solely with atmospheric nuclear tests whereas the present dispute was regarding underground nuclear tests.(Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests, New Zealand v. France, 1995)

In 1996, the World Court was again seized of a similar issue wherein the General Assembly of the United Nations by its resolution asked for an advisory opinion regarding the permissibility of the use of nuclear weapons under international law. The Court observed that the use of nuclear weapons could not be considered illegal as per customary international law and further noted that the international community was profoundly divided on the matter of whether nonrecourse to nuclear weapons over the last half century in itself constituted an expression of an opinio juris. The court lamented that the nonuse of nuclear weapons during the last fifty years did not constitute an opinio juris so as to make the use of nuclear weapons incompatible with international law (Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion, I.C.J., 1996).

Again, ICJ in Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (ICJ, 1997) observed that newly developed norms of environmental law are relevant for the implementation of the Treaty in question and that the parties could, by agreement, suitably incorporate them. Briefly, the facts were that Czechoslovakia and Hungary entered into an agreement in 1977 agreeing to build a barrage complex on the Danube River with large dams at Gabcikovo (Czechoslovakia) and Nagymaros (Hungary). The project was primarily for hydroelectric generation. According to the treaty, the jointly-owned and operated system would strengthen the fraternal relations of the two states.

But public opposition started mounting in Hungary in the 1980s on both economic and environmental grounds which finally culminated in Hungary unilaterally terminating the agreement in 1992. This forced Slovakia to continue with a different version of the project in its own territory. The dispute finally reached the World Court which while referring to the rival contentions of the parties commented that both sides need to take environmental concerns seriously and to take the required precautionary measures, but as the parties could not agree on the consequences of noncompliance for the joint Project, the Court remarked that in such cases third-party involvement might be helpful and instrumental in finding a solution. One of the parties (Hungary) argued that any obligation arising out of contract should avoid damage, including especially damage to biodiversity prohibited by the Rio Convention on Biological Diversity. Hungary also asked for a joint environmental impact assessment of the region in the context of the sustainable development of the region. Putting the importance of protection of environment on the top agenda, the Court observed that the Treaty in question was not only a joint investment project for the production of energy, but it was designed to serve other objectives including the protection of the natural environment. It further observed that in the field of environmental protection, vigilance and prevention are required on account of often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage

Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed and set forth in a great number of instruments during the last decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. ICJ observed that it is for the Parties themselves to find an agreed solution that takes account of the objectives of the Treaty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses.

Even in a WTO case (United States-Import prohibition of certain shrimp and shrimp products, DS58, 1998), the Appellate Body observed that countries have the right to take trade action to protect the environment including endangered species and exhaustible resources. It observed that protection and preservation of the environment is of great significance to WTO Members and the sovereign nations can adopt effective measures to protect endangered species, such as sea turtles. Sovereign states should act together bilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment.

International environmental law is now evolving rapidly and the growing number of multilateral environmental agreements clearly indicate that countries are now serious about environmental degradation and are using the international environmental law to tackle this crisis.

The writers are Mumbai-based advocates and legal consultants.