Law And Policy

This post consists of summary of-
1. Shyam Divan and Armin Rosencranz, Environmental Law and Policy in India, 3^rd Edition, 2022, Oxford University Press, Pg 882-917

2. Max Valverde Soto, General Principles of International Environmental Law, ILSA Journal International and  and Comparative Law, Vol 3, 913 

Summary: General Principles of International Environmental Law

Max Valverde Soto’s article provides a detailed exposition of the seven foundational principles of international environmental law (IEL) that have emerged from treaties, judicial decisions, and customary practice. These principles together frame the obligations of states in the protection of the global environment while balancing their sovereign rights.

1. Introduction: Sources and Scope

International environmental law, though relatively new, draws on the traditional sources of international law enumerated in Article 38(1) of the Statute of the International Court of Justice– international conventions, customs, general principles of law, and judicial decisions. Soto emphasizes that, unlike many areas of law, IEL lacks a single binding global instrument defining states’ environmental rights and duties. Instead, its rules have developed from UN resolutions, multilateral environmental agreements (MEAs), and decisions of international tribunals. From this evolving corpus, he distills seven overarching principles that have achieved varying degrees of consistency and acceptance.

2. Sovereignty and Responsibility

The principle of sovereignty over natural resources coexists with the duty not to cause environmental harm beyond national boundaries. Rooted in the 1962 UN General Assembly Resolution 1803 (Permanent Sovereignty over Natural Resources) and reaffirmed in Principle 2 of the 1992 Rio Declaration, this duality holds that while states may exploit their resources, they must ensure that activities within their jurisdiction do not harm other states or areas beyond national control.

This limitation derives from the broader legal maxim that “rights entail corresponding obligations.” Soto traces the responsibility principle to the Trail Smelter Arbitration (United States v. Canada, 1941), which held that no state may use its territory to cause serious injury in another. It was later reflected in nuclear and environmental conventions such as the UN Convention on the Law of the Sea (1982) and the Basel Convention (1989). In shared resources like transboundary rivers, the duty of equitable and reasonable utilization applies, while for global commons (the high seas, outer space, Antarctica), the concept of the common heritage of humankind imposes collective stewardship.

3. Good Neighborliness and International Cooperation

This principle enjoins states to act responsibly toward neighbors and to cooperate in preventing transboundary harm, reflecting the Roman-law maxim sic utere tuo ut alienum non laedas (“use your property so as not to injure another’s”). It has been reinforced by ICJ jurisprudence, notably in the Corfu Channel case (1949), and by environmental conventions mandating cooperation, data exchange, and joint research.

Key elements include:

• Prior notification and consultation for potentially harmful activities (e.g., as required by the Rio Declaration, Principle 19).
• Information exchange and transparency, seen in the Ozone Layer Convention (1985) and the Convention on Biological Diversity (1992).
• Prior informed consent, particularly for hazardous waste transfers (under the Basel Convention).

Soto notes that cooperation is not absolute; confidentiality and patent protection can justify limits. Nonetheless, cooperative information systems such as those under the UNFCCC (1992) are critical to global monitoring.

4. Principle of Preventive Action

Distinct from the duty to avoid harm, this principle requires anticipatory measures to prevent damage within a state’s own jurisdiction. It embodies the idea that prevention is better than remediation. Tools such as environmental impact assessments (EIAs), licensing procedures, and regulatory penalties operationalize this duty.

Preventive measures are reflected in multiple treaties, including the Stockholm Declaration (1972), Convention on the Prevention of Marine Pollution (1974), and Rio Declaration, Principle 17. Soto emphasizes that preventive duties are evolving from moral obligations into legal norms, as seen in the World Bank’s Operational Directive 4.01 and ICJ recognition in Certain Phosphate Lands in Nauru (1992).

5. Precautionary Principle

An outgrowth of prevention, the precautionary principle shifts the burden of proof: lack of full scientific certainty cannot justify inaction when serious or irreversible harm is possible. Codified in Principle 15 of the Rio Declaration, it compels states to adopt cost-effective measures despite scientific uncertainty.

The principle first appeared in the 1985 Vienna Convention for the Protection of the Ozone Layer and subsequent agreements such as the Bamako Convention (1991) and OSPAR Convention (1992). However, its threshold varies—some treaties require “reasonable grounds for concern,” others act upon mere possibility of risk leaving scope for interpretation.

6. Duty to Compensate for Environmental Harm

Soto next explores state responsibility for transboundary environmental damage. States must halt wrongful conduct and either restore or compensate for harm caused. Drawing on the Chorzów Factory case (1928), he notes that restitution should, as far as possible, “wipe out all consequences of the illegal act.”

While fault-based liability dominates, certain activities (nuclear or space-related) invoke strict or absolute liability. Yet, defining environmental damage and quantifying reparation remain difficult restoring ecosystems or extinct species is often impossible or economically prohibitive. Hence, compensation principles continue to evolve through treaties and ICJ jurisprudence.

7. Common but Differentiated Responsibilities (CBDR)

The CBDR principle recognizes that while environmental protection is a common goal, the burdens must be shared equitably according to states’ capacities and historical contributions to degradation. Articulated in Principles 4 and 7 of the Rio Declaration, it balances fairness and effectiveness.

Developed countries, having benefited from industrialization, bear greater obligations for mitigation and financial assistance, while developing countries are granted flexibility in implementation illustrated by the Montreal Protocol (1987) and UNFCCC (1992) provisions allowing phased commitments.

8. Sustainable Development

Derived from the Brundtland Report (1987), sustainable development integrates economic growth and environmental protection, ensuring that current needs do not compromise future generations. Its sub-principles include:

• Intergenerational Equity: Each generation must pass on natural wealth at least equal to what it inherited.
• Sustainable Use of Natural Resources: Rational, non-depletive use of resources, first reflected in the 1893 Fur Seal Arbitration and later in conservation conventions.
• Integration of Environment and Development: Environmental considerations must be embedded in economic and social decision-making.

Soto underscores that sustainable development has become the overarching framework uniting all other principles—linking sovereignty, cooperation, prevention, and equity.

Conclusion

Soto’s analysis illustrates that international environmental law has matured into a coherent body of principles balancing sovereign rights with global responsibilities. From Trail Smelter to Rio, the law has evolved toward preventive, precautionary, cooperative, and equitable norms, forming the backbone of contemporary environmental governance. These principles, though varying in legal force, collectively express the moral and legal consensus that no state may develop at the cost of the global environment.

Summary : Chapter: International Environmental Law and Policy – Evolution, Principles, and India’s Engagement

This chapter provides an extensive overview of the development of international environmental law (IEL), key global conferences and treaties, and their influence on India’s domestic environmental policy. The authors trace the movement from early post-war environmental concerns to the present era of global sustainability and climate justice, emphasizing how principles of equity, precaution, and cooperation have shaped both international norms and India’s environmental governance.

1. Evolution of International Environmental Law

International environmental law began as a fragmented set of bilateral agreements dealing with specific transboundary issues such as wildlife protection, marine pollution, and freshwater conservation. The 20th century, however, saw an evolution from sectoral management to a comprehensive, global framework addressing interconnected issues like pollution, deforestation, and biodiversity loss.

The chapter identifies four major phases:

1. Pre-1972 Era – Characterized by limited conventions such as the 1900 London Convention on Wildlife and 1946 Whaling Convention, focusing narrowly on species conservation and pollution control.
2. 1972 Stockholm Conference – The United Nations Conference on the Human Environment (UNCHE) was a turning point. The Stockholm Declaration introduced 26 principles emphasizing human responsibility, pollution prevention, and the balance between economic growth and environmental protection. It also created the UNEP (United Nations Environment Programme), institutionalizing global environmental cooperation.
3. 1980s–1992: The Sustainable Development Phase – Growing ecological crises and North-South debates led to the Brundtland Report (1987), coining the term sustainable development—development that meets present needs without compromising future generations. The 1992 Rio Earth Summit consolidated this with the Rio Declaration, Agenda 21, and three critical conventions: UNFCCC, CBD, and UNCCD.
4. Post-2000 Period – The focus shifted to climate change, biodiversity, and corporate environmental responsibility, culminating in the Kyoto Protocol (1997) and the Paris Agreement (2015), where nations committed to net-zero carbon trajectories.

2. Core Principles of International Environmental Law

Divan and Rosencranz elaborate on 13 established principles that define the normative framework of IEL and influence Indian environmental jurisprudence.

(i) Principle of Sovereignty and Responsibility

States have sovereign rights to exploit their natural resources but also an obligation not to cause transboundary harm. This dual responsibility reflects Principle 21 of Stockholm and Principle 2 of Rio, reinforced through cases like Trail Smelter (1941).

(ii) Polluter Pays Principle

First articulated in OECD Guidelines (1972) and recognized in Indian jurisprudence (Vellore Citizens’ Forum v. Union of India, 1996), it mandates that polluters bear remediation costs, integrating environmental economics with law.

(iii) Precautionary Principle

Articulated in Principle 15 of the Rio Declaration, it requires action in the face of scientific uncertainty. India has incorporated it via decisions such as A.P. Pollution Control Board v. M.V. Nayudu (1999), establishing anticipatory state responsibility.

(iv) Sustainable Development

A synthesis of environmental protection and economic growth, it underpins Rio Principle 4 and has become India’s constitutional environmental ethos through Article 21 (Right to Life) jurisprudence.

(v) Intergenerational Equity

Drawn from the Brundtland Report, it holds that each generation acts as a trustee of the environment. The Supreme Court in State of Himachal Pradesh v. Ganesh Wood Products (1995) reaffirmed this principle.

(vi) Common Heritage of Mankind

Applied to shared global commons (oceans, Antarctica, outer space), this principle requires collective management and benefit-sharing.

(vii) Common but Differentiated Responsibilities (CBDR)

From Rio Principle 7, CBDR recognizes that developed and developing countries share environmental goals but differ in capacity and responsibility—central to the UNFCCC and Kyoto Protocol frameworks.

(viii) Principle of Prevention and Notification

Prevention is better than cure; states must conduct Environmental Impact Assessments (EIA) and notify potentially affected states.
India operationalizes this via the EIA Notification, 2006 under the Environment (Protection) Act, 1986.

(ix) Principle of Good Faith and Cooperation

Derived from UN Charter Article 2, this principle underlines the duty to collaborate on shared ecological concerns, as reflected in treaties on biodiversity and climate change.

(x) Right to a Healthy Environment

Now seen as an emerging human right, this concept integrates environmental protection with dignity and life, influencing the UN Human Rights Council (2021) resolution and India’s Article 21-based jurisprudence.

(xi) Environmental Impact Assessment (EIA)

A procedural right embedded in Principle 17 of the Rio Declaration; it ensures that development projects account for environmental consequences.
The authors highlight its procedural deficiencies in India—limited public participation and weak enforcement—but affirm its normative value.

(xii) Duty to Monitor and Report

States must collect data, report to international secretariats, and disclose environmental risks. Mechanisms under the Montreal Protocol and UNFCCC operationalize this.

(xiii) Principle of Transparency and Public Participation

Linked to the Aarhus Convention (1998), it mandates citizen access to information and participation in environmental decision-making—essential for democratic environmental governance.

3. Environmental Law and Free Trad

The authors explore the intersection between environment and trade, focusing on WTO jurisprudence:

• Shrimp-Turtle (1998) and Dolphin-Tuna cases illustrate the tension between free trade and ecological protection.
• The WTO’s Article XX (b) & (g) exceptions recognize environmental measures if non-discriminatory.
• The concept of “eco-protectionism” arises when environmental norms become disguised trade barriers, prompting debates on fair transition periods and technology transfer.

4. Climate Change and Corporate Accountability

Divan and Rosencranz analyze climate change governance as the defining challenge of the 21st century:

• The Paris Agreement (2015) moves from top-down emission targets to nationally determined contributions (NDCs).
• It calls for education, transparency, and public access to climate information (Article 12).
• The rise of corporate climate litigation (e.g., Milieudefensie v. Shell, 2021, Netherlands) signals growing accountability of multinational enterprises.
• Emerging concepts like mandatory disclosure of emissions, ESG reporting, and director’s duties in climate governance represent the next evolution of environmental corporate law.

5. Ecocide: Towards a Fifth International Crime

A recent global movement seeks to recognize ecocide– the destruction of ecosystems as an international crime.
The Independent Expert Panel on the Legal Definition of Ecocide (2021) defines it as:

“Unlawful or wanton acts committed with knowledge that there is substantial likelihood of severe and long-term environmental damage.”

India, though supportive in principle, has yet to advocate for ecocide in the Rome Statute framework. Still, its inclusion could bridge environmental law and human rights law, expanding global accountability.

6. Conclusion

The chapter concludes that international environmental law has evolved from soft law declarations to hard law regimes balancing ecological preservation with developmental justice.
For India, these principles have profoundly shaped domestic law—from constitutional interpretations of Article 21 to statutory frameworks under the EPA, Water Act, and Air Act.

Divan and Rosencranz argue that India’s leadership in climate negotiations, its progressive judiciary, and its reliance on principles like polluter pays, precaution, and intergenerational equity make it a laboratory for environmental jurisprudence. Yet, persistent challenges implementation gaps, weak institutional capacity, and growing corporate environmental risks—highlight the urgent need for stronger governance and international cooperation.