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Foundations of International Environmental Law

Historical Development

Early Environmental Concerns

The origins of environmental awareness can be traced to the 19th century, with local laws addressing pollution and conservation of resources. Industrial revolution and increasing urbanization led to widespread environmental degradation, drawing attention toward the need for protection and regulation.

Events like the 1930s Dust Bowl in the USA, marine oil spills, and nuclear testing in the mid-20th century heightened global environmental consciousness. However, formal international cooperation was limited until the 1970s.

Post-Stockholm Conference Developments

The 1972 United Nations Conference on the Human Environment, held in Stockholm, marked the formal beginning of modern International Environmental Law (IEL). It adopted the Stockholm Declaration with 26 principles outlining states’ responsibilities regarding the environment.

Key milestones post-Stockholm include:

Stockholm to Paris Environmental Evolution

Sources of IEL

Treaties (Conventions)

Treaties are the primary source of International Environmental Law. They bind signatory states to comply with specific environmental obligations. Examples include:

Customary International Law

These are unwritten rules derived from consistent state practice and legal obligations (opinio juris). Examples include:

These norms apply even to non-party states and are enforceable through international adjudicatory mechanisms.

Soft Law Instruments

Soft laws are non-binding instruments that influence international conduct and often evolve into binding norms. Examples:

Though non-binding, they guide state practice, shape public expectations, and inform the development of customary international law.


Key Principles of IEL

Sustainable Development

This principle seeks to balance environmental protection with economic development. Defined in the Brundtland Report as:

"Development that meets the needs of the present without compromising the ability of future generations to meet their own needs."

It integrates environmental concerns into planning, policymaking, and trade.

Precautionary Principle

This principle states that lack of scientific certainty should not be used as a reason to postpone measures to prevent environmental harm. It shifts the burden of proof to the polluter or decision-maker to demonstrate safety.

Example: Banning certain chemicals suspected to be carcinogenic even if conclusive proof is lacking.

Polluter Pays Principle

This principle affirms that the party responsible for causing pollution must bear the cost of managing it. It internalizes environmental costs into economic decisions.

In India, this is recognized under Article 21 of the Constitution through Supreme Court judgments like the Vellore Citizens’ Welfare Forum case.

Common but Differentiated Responsibilities (CBDR)

This principle recognizes that while all states are responsible for environmental protection, developed countries bear greater historical responsibility for environmental degradation and must take the lead in mitigation and financial support.

CBDR is central to climate negotiations under the UNFCCC and Paris Agreement.

No Harm Rule

This customary principle requires that states ensure activities within their jurisdiction do not cause environmental damage to other states or global commons (like oceans or atmosphere).

It was recognized in the Trail Smelter Arbitration (Canada vs. US), and reaffirmed in the Stockholm and Rio Declarations.

Major Environmental Treaties and Regimes

Climate Change Law

UNFCCC, Kyoto Protocol, Paris Agreement

1. UNFCCC (United Nations Framework Convention on Climate Change) - 1992: This is a foundational international treaty aimed at addressing climate change by stabilising greenhouse gas concentrations. It sets a framework for future negotiations and commitments but does not impose binding limits.

2. Kyoto Protocol - 1997: This protocol to the UNFCCC imposed binding emission reduction targets on developed countries. The principle of "common but differentiated responsibilities" was central. It introduced mechanisms like:

3. Paris Agreement - 2015: This landmark agreement aims to keep global temperature rise well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C. It requires countries to submit Nationally Determined Contributions (NDCs) every 5 years and promotes climate finance and adaptation measures.


Biodiversity Law

Convention on Biological Diversity (CBD)

The CBD, adopted at the 1992 Rio Earth Summit, is a comprehensive treaty for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of benefits arising from genetic resources.

Key Objectives:

Notable Protocol: The Cartagena Protocol on Biosafety (2000) under CBD deals with the safe transfer and handling of Living Modified Organisms (LMOs).


Ozone Layer Protection

Vienna Convention and Montreal Protocol

1. Vienna Convention - 1985: A framework convention for protecting the ozone layer. It does not include binding reduction targets but establishes obligations for international cooperation and data sharing.

2. Montreal Protocol - 1987: A legally binding protocol under the Vienna Convention that aims to phase out ozone-depleting substances (ODS) like CFCs, halons, etc.

Success: This is one of the most successful environmental treaties and has resulted in significant healing of the ozone layer. The Kigali Amendment (2016) added hydrofluorocarbons (HFCs) to the list of substances to be phased down.


Hazardous Wastes

Basel Convention

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal was adopted in 1989 and came into force in 1992.

Objectives:

The Ban Amendment (2019) prohibits all exports of hazardous wastes from OECD countries to non-OECD countries.


Marine Environmental Protection

MARPOL

MARPOL (The International Convention for the Prevention of Pollution from Ships) was adopted in 1973 and modified by the 1978 Protocol.

Annexes:

MARPOL is administered by the International Maritime Organization (IMO) and plays a crucial role in preventing marine pollution through strict ship-based regulations.

Major Environmental Treaties and Regimes

Climate Change Law

UNFCCC, Kyoto Protocol, Paris Agreement

Climate Change Law addresses global efforts to combat the adverse impacts of climate change through multilateral environmental agreements.

UNFCCC (United Nations Framework Convention on Climate Change)

Established in 1992 at the Rio Earth Summit, the UNFCCC aims to stabilize greenhouse gas concentrations to prevent dangerous interference with the climate system.

Key Features: Non-binding, framework-based, supports information exchange and annual COP meetings.

Kyoto Protocol (1997)

Legally binding instrument under UNFCCC, setting emission reduction targets for developed countries (Annex I parties).

Key Mechanisms:

Paris Agreement (2015)

Universal agreement applicable to all countries aiming to limit global warming to well below 2°C above pre-industrial levels, preferably 1.5°C.

Key Features: Nationally Determined Contributions (NDCs), 5-year review cycle, climate finance commitment of $100 billion annually by developed countries.


Biodiversity Law

Convention on Biological Diversity (CBD)

The CBD, signed at the Earth Summit in 1992, promotes conservation, sustainable use, and equitable sharing of benefits arising from genetic resources.

Three Pillars:

Protocols:


Ozone Layer Protection

Vienna Convention and Montreal Protocol

The Vienna Convention (1985) was the first international treaty to address ozone depletion, followed by the more specific Montreal Protocol (1987).

Montreal Protocol:

Legally binding treaty to phase out ozone-depleting substances (ODS), such as CFCs, halons, etc.

Achievements: Universally ratified, led to recovery of the ozone layer, widely considered the most successful environmental treaty.


Hazardous Wastes

Basel Convention

Basel Convention (1989) aims to control transboundary movement and disposal of hazardous wastes.

Key Features:

India is a party and has implemented rules to manage hazardous and other wastes domestically.


Marine Environmental Protection

MARPOL

MARPOL (International Convention for the Prevention of Pollution from Ships), 1973/78, regulates pollution of the marine environment by ships.

Annexes:

MARPOL is enforced by flag states and port states. India has incorporated it under the Merchant Shipping Act, 1958.