In the last forty years, International Environmental law has rapidly evolved simultaneously with the increase in environmental risks. Before the late 19th Century, there was no appreciation for the idea that ecosystems and other important natural resources should be made the subject of legal protection. Before the 1960s, environmental law had no discrete domestic and international statute of its own. Even in the 1970s, there were only a few multilateral agreements related to environmental law, and most countries lacked a law dedicated to the environment.
But with the advent of the 21st-century environment preservation became integrated with a nation’s overall development and therefore with major thrust in fields of public health, resources conservation and legal actions against pollution damage Environmental Law got the initial push. As of now, there are hundreds of environmental agreements and conventions and every country now have its environmental statutes. Here in this article, we would be analyzing the evolution of international environmental law and how it came into its present form, but first, it is important to know why a law dedicated to the environment is important.
Purpose of Environment Law
Environmental law is a new concept which is completely distinct from past ideas and seeks to redefine the relationship between humans and nature by making a heterogeneous system where both the natural ecosystem and material developments sustain itself without deterring one another.
Environmental Law is the product of a value system that seeks to redefine mankind’s relationship to nature. The essential idea behind it is to induce humans to act for the service of the environment they live in, and thus pay their homage to the Mother Nature. The basic purpose of environmental law is to change the outlook of people and induce in them a mindset for sustainable development.
Environmental Laws seeks to build up a relationship between humans and the natural system they live in. It seeks to reverse a long run disregard of our natural resources which has led to serious degradation and exploitation of the same. It was always in our human history that we have exploited our Mother Nature and its resources and have never given a thought to mitigate this exploitation.
Therefore, Environmental Law is an answer to these environmental degradations and adverse exploitation. In a nutshell, it could be concurred that environmental law is necessary because it is only through statutes dedicated to environmental law that we can reverse the long history of unrestrained material development that has led to environmental degradation.
Evolution of Environmental Law
The evolution of international environmental law can be studied in three distinct periods: Traditional Period (1900-1972), Modern Period (1972-1992) and Post-Modern Period (1992-2012). These periods correspond to the early glimmers of international environmental law when the basic framework of international environmental law developed and matured. Legal work done during these periods laid the basis for developing and implementing international environmental law.
Traditional Period (1900-1972)
History of conservation can be traced back to 1669 when Jean-Baptiste Colbert passed the Ordonnance et forest which can be seen as precursors of environmental law today. Natural resource management, therefore, has been a subject of international law for over five hundred years starting with the advent of the Traditional Period which gave to us the early glimmers of Environmental Law. During this period, it started as a basic element of International Law when bilateral agreements were entered into between various states to settle matters over shared natural resources. All of what that has happened during this period was under the ‘principle of reciprocity’ between states and no specific legislation for environmental law were developed. All of the agreements that were entered into for resolving environmental problems were dealt with under the concept of territorial sovereignty. Most frequently used examples of this period are the arbitration cases of the Bering Sea Fur Seals case, 1893[i] and the 1957 Lake Lanoux case of 1957[ii]. It was during this period that Green Policies for the conservation of the natural environment began to make their appearance as treaties between various regimes. Examples of such policies are, Article 22 of the 1856 Bayonne Boundary Treaty between France and Spain for preventing the destruction of the fisheries in the Bidassoa River[iii] which led to a transition in domestic laws in the regulation of watercourses.
The initial motive for these laws was for utilitarian and self-serving purposes and therefore nothing much legal character could be given to the laws back then. Some examples of such laws are the 1900 London Convention Designed to Ensure the Conservation of Various Species of Wild Animals in Africa That Are Useful to Man or Inoffensive and the 1902 Paris Convention to Protect Birds Useful to Agriculture. It was only in the twentieth century that marked the entry of international environmental law into conservation ethics for the prevention of global environmental risks. It all started with President Theodore Roosevelt’s first attempt (although it was later aborted) for holding the International Conservation Conference at The Hague in 1909. Later the London Convention Relative to the Preservation of Fauna and Flora in their Natural State of 1933 and the Washington Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere in 1940 were breakthroughs for environmental law. The non-governmental International Union for the Protection of Nature established in 1948 (later known as the International Union for Protection of Nature and Natural Resources) became an important source for subsequent developments in the field of International Environmental Law. Later joint initiatives of the United Nations Educational, Scientific and Cultural Organization (UNESCO), led to the adoption of the 1971 Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat and the 1972 Paris Convention for the Protection of the World Cultural and Natural Heritage. All of these events ultimately led to the establishment of Environmental Law which was sure-footed and was ready to be developed and crystallised.
Modern Period (1972-1992)
The beginning of ‘modern’ international environmental law is dated to 5 June 1972 which marks the beginning of the United Nations Conference on the Human Environment in Stockholm. This period includes many developments that took place up until the 1992 United Nations Conference on Environment and Development.
It was in 1972 when for the first-time countries across the world came together to identify and address environmental problems at the United Nations Conference on the Human Environment in Stockholm. This event has had a lasting impression on the development of international environmental law. This conference was based upon the central issue of conflict between economic development and environmental protection and it was this conference where the concept of Sustainable Development was shaped. The conference was preceded by the Founex Meet in Switzerland where it was recognized that environmental protection and economic development should go hand in hand thus laying a foundation for the concept of sustainable development, which governments confirmed later at the Rio Conference on Environment and Development. At the Stockholm Conference, the Stockholm Declaration on the Human Environment was adopted which led to further development of international environmental law. As a result of the Stockholm Conference, countries established the United Nations Environment Programme (UNEP) in Nairobi, Kenya which was not established as a United Nations specialized agency.
Some important multilateral agreements associated with the Stockholm Conference, are the Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matters and the Convention for the Protection of World Cultural and Natural Heritage, in 1972 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) in 1973. These agreements were the early pillars of international environmental law and together with the UN Conference, set the stage for the developments in international environmental law.
In the next two decades, international environmental agreements proliferated and more than 1100 international legal instruments that were in one way or the other dedicated to the environment. In this period, countries became adept at negotiating new agreements in short periods which did not exceeded 2 months.
The international environmental agreements entered into during this period started a system of monitoring and reporting specific environmental threats and had its own, separate facility to assist countries in implementing the agreement with separate protocols for the negotiation of international agreements, including trans-boundary air pollution ozone climate, etc. The period between 1972-1992 witnessed changes in the themes and the focus of international environmental agreements. The scope of agreements also expanded from controlling trans-boundary pollution to global pollution problems, such as the depletion of the ozone layer, conserving ecosystems etc.
Post Modern Period (1992-2012)
This period begins with the United Nations Conference on Environment and Development and continues for the next two decades. It begins in June 1992 when countries met in Rio de Janeiro, Brazil, on the twentieth anniversary of the 1972 Stockholm Conference. The location sent an important message that environment and development were the concerns of all countries, regardless of their economic development. It became an important event which lasted deep impact on future international environmental law and policies. The World Commission on Environment and Development (Brundtland Commission) created by the United Nations General Assembly, prepared a report for the Rio Conference, Our Common Future, which made the concept of sustainable development the basic principle of international environmental law. While every nation accepted the concept, not all agreed upon the definition of sustainable development. The Rio Conference produced four important documents for international environmental law: the Rio Declaration on Environment and Development, which laid the basis for development of new principles of international environmental law; the U.N. Framework Convention on Climate Change; the Convention on Biodiversity; and the Agenda 21, which stated a comprehensive list of actions that States were to take in cases on environmental deterioration. It resulted in the establishment of the Commission on Sustainable Development, to review progress in implementing Agenda 21.
The years since the Rio Conference have witnessed major developments in international environmental law and policy. It has become more robust and more comprehensive. It has developed close links to trade, human rights, and national security. New principles and rules have emerged and old ones have been redefined. The focus has shifted from exclusive concerns to international concerns. The developments since the Rio Conference can be grouped as follows:
- Linkage of international environmental law with other areas of laws such as economic law, human rights law, and national security laws.
- Rise of actors other than States in shaping international environmental law, like development banks, private sector actors, public-private partnerships, NGOs etc.
- Development of new international principles with an increase in their severity.
- Emphasis on implementation of international environmental agreements.
All these developments in different periods reflect a new type of accountability owed by all states for proper management of environmental resources for the benefit of all people, present and future.
History and Evolution of Environmental Law in India
In India, the concept of Environment Preservation is as old as the nation itself. Since the beginning of our civilization men and women have constantly strived to protect and preserve the Mother Earth. This ancient tradition of environment preservation even reflects in our modern-day India. India is the member of almost all the conventions, declarations, Conferences and Protocols dedicated to the protection of Environment Law. Some of them are the Stockholm Declaration, United Nation Environment Program, Rio Declaration, Kyoto Protocol etc. Indian Judiciary and Legislation is striving to build good legislations backed up by judicial precedent so that a strong foundation for Environmental Law Jurisprudence could be construed.
The jurisprudence for Indian Environmental Law was first laid down in the case of M.C. Mehta v. Union of India[iv], wherein the Apex Court held that there needs to be a synthesis of environment and economic imperative for the greater good of the people. Industrialisation should not mean genocide but human good. Then, time and again our Indian Judiciary has been implementing the principles of Environment Law in such a manner that an Indian Jurisprudence could be devised for aiding the legislators to enact statutes dedicated to Environmental Law as per Indian conditions.
Calcutta High Court in the case of People United for Better Living in Calcutta v. State of West Bengal[v], observed that in a developing country there shall have to be developments in harmony with the environment. An equilibrium must be maintained between the economic growth and environment such that none of them deters the other. This ruling was in relation to the principle Sustainable Development which is a part of International Environment Development.
Hon’ble Supreme Court in Narmada Bachao Andolan v. Union of India[vi], discussed the precautionary principle and held that the principle is to be employed only in cases of pollution when its impact is uncertain and non-negligible.
In M.C. Mehta v. Union of India &Ors (Calcutta Tanneries Case)[vii], the Polluter Pays principle was used and relocation of industries was ordered followed by compensation of 25% of the cost of land. Those who did not pay for the cost of land were directed to be closed.
The Apex Court in T.N. GodavarmanThirumalpad (through K.M. Chinnapa) v. Union of India and Others[viii] observed that where a commercial enterprise would be of greater use for the people, the difficulty of a small number of people has to be bypassed and thus laid down another principle termed as Doctrine of Proportionality of Risk.
The Apex Court then in M.C. Mehta v. Kamal Nath[ix] while considering the public trust doctrine held that certain common properties are held by the Government in trusteeship for the use of the general public. These resources being a gift of nature should be made freely available to everyone and should not be made private property.
All of these regulations aided to the establishment and development of Indian Environmental Law and established a jurisprudence dedicated to Indian Environmental issues.
Future Prospects for Environmental Laws
Although numerous international environmental laws have been enacted to date, their effective application is still difficult to achieve. There are many inconsistencies which make its application impossible in cases of transnational pollution. A major problem with such laws is that it results in social and economic hardships which make developing nations reluctant to implement them and therefore international environmental law remains underdeveloped. All these issues can be addressed through the cooperation of governments with similar environmental policy, through provisions designed to encourage the adoption of environmental laws by aiding developing nations financially and technologically.
Despite all these difficulties, international environmental law never stagnated and kept on growing. Even as of now and for the future there is a great aspiration for this law with the growing field of environment usage which has expanded even to space.
The environment has now has become an important component of international as well as domestic laws. Every country now has one or more legislation dedicated to the environment. There are now hundreds of environmental agreements, which show how our understanding of the environment and its relation with development has changed. The environment has now received a centre stage in global politics which is indeed the need of this hour. With this International environmental law will be oriented for long-term risks and their mitigation through inter-generational and intra-generational equity. With the coming decade, there will surely be changes and then it would be on us how to deal with those changes to ensure sustainable development for us and our future generations.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i]USA v Great Britain, IELR 1:43.
[ii]Spain v France, IELR 1:332.
[iv]M.C. Mehta v. Union of India, AIR 1987 SC 965.
[v]People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal 215.
[vi]Narmada BachaoAndolan v. Union of India, (2000) 10 SCC 664.
[vii]M.C. Mehta v. Union of India &Ors, (2004) PL WebJour 7.
[viii]T.N. GodavarmanThirumalpad (through K.M. Chinnapa) v. Union of India and Others, (2002) 10 SCC 142.
[ix]M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.