Objective

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ru65etrgdhyjtu7857 environmental law, which
have been incorporated into India’s domestic
environmental jurisprudence:
– Sustainable
Developmentdadawadwadasadtgyhkuugjyhfcbnvh
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 – Precautionary Principle or Approach
– Polluter Pays Principle
SUSTAINABLE DEVELOPMENT
Background
• UN GA Resolution 1831 (1962)
– Encouraged governments to pay attention to natural resource
management early into a phase of economic development
• Fournex Report (1971)
• Stockholm Declaration (1972): Principle 13
– Called on states to adopt ‘an integrated and co-ordinated
approach to their development planning so as to ensure that
 their development is compatible with the need to protect and
improve the human environment’
• World Conservation Strategy (1980)
– Integration of conservation and development to ensure that
modifications to the planet do indeed secure the survival and
well-being of all people
Brundtland Report (1987)

• ...development that meets the needs of the

present without compromising the ability of
future generations to meet their own needs
 – needs – essential need of the world’s poor –
overriding priority
– limits – not absolute; interaction of ‘present state
of technology and social organisation on natural
resources’ and ‘the ability of the biosphere to
absorb the effects of human activities’
Rio Declaration (1992)
• Principle 1: Human beings are at the centre of
concerns for SD. They are entitled to a healthy
and productive life in harmony with nature.
• Principle 4: In order to achieve SD, environmental
protection shall constitute an integral part of the
development process and cannot be considered
in isolation from it.
• Principle 3: The right to development must be
fulfilled so as to equitably meet developmental
and environmental needs of present and future
generations.
Johannesburg Declaration on Sustainable
Development (2002)
• …we assume a collective responsibility to
advance and strengthen the interdependent
and mutually reinforcing pillars of sustainable
development — economic development,
social development and environmental
protection — at the local, national, regional
and global levels
 Case Concerning the
GabcikovoNagymaros Project (1997, ICJ)
• Parties - Hungary and Slovakia
• Treaty to build a series of hydroelectric dams on the Danube
• Both parties referred to SD
• “…This need to reconcile economic development with protection of
the environment is aptly expressed in the concept of SD. For the
purposes of the present case, this means that the Parties together
should look afresh at the effects on the environment of the
operation of the Gabcikovo power plant…”
• Separate Opinion of Vice-President Weeramantry
– Right to development does not exist in the absolute sense; it is relative
always to its tolerance by the environment
 – Right to development is clearly part of modern international law
compendiously referred to as SD

Pulp Mills Case (Provisional Measures)

(2006, ICJ)
• Parties – Argentina and Uruguay
• Case highlights the importance of the need to ensure
environmental protection of shared natural resources
while allowing for sustainable economic development
• Necessary to bear in mind the reliance of the Parties
on the quality of the water of the River Uruguay for
their livelihood and economic development
• Account must be taken of the need to safeguard the
continued conservation of the river environment and
the rights of economic development of the riparian
States

SD in the Supreme Court of India

• Compromise approach in disputes concerning
termination of mining leases (late 1980s)
• More environmental focus (1990s)
• Anthropocentric or eco-centric basis of SD
(recent)
• Article 21 - Right to life includes right to
environment & right to development
• Rural Litigation and Entitlement Kendra v.
State of Uttar Pradesh (1991, SC)
– If a just balance is not struck between
development and environment by proper tapping
of natural resources, there will be violation of
articles 14, 21, 48-A and 51(g) of the Constitution.
 Vellore Citizens’ Welfare Forum v. UoI &
Others (1996, SC)
• Suit in response to reports that tanneries were discharging
effluents into the river Palar, the source of drinking water
• ‘the traditional concept that development and ecology are
opposed to each other, is no longer acceptable’
• SD ‘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’
• SC identified ‘salient principles’ and ‘essential features’ of
SD
• Notwithstanding the economic benefits of leather industry,
economic interests cannot be allowed to ‘destroy the
ecology, degrade the environment and pose a health
hazard’ to the public at large
–
POLLUTER PAYS PRINCIPLE
PPP as an Economic Principle

• Producer should bear the cost of externalities

(eg environmental pollution) resulting from
production/consumption of good/service
 OECD: Partial cost internalization
approach
• 1972 & 1974 Recommendations
• Cost allocation principle
– To improve efficiency and encourage rational use of scarce natural
resources
– Governments decide pollution prevention & control measures to
ensure that environment is in acceptable state
– Polluter must internalize/bear full cost of carrying out these measures
– Cost should be reflected in cost of goods and services which cause
pollution
– Nothing has to be paid to anyone
• Non-subsidization principle
 – To avoid distortions in international trade and investment arising from
adoption of differential pollution abatement mechanisms/methods
– No to government subsidies
– Exceptions/special arrangements possible

OECD: Full cost internalization approach

• Wider scope of PPP

• Costs of accidental pollution caused by
hazardous installations + control, clean-up and
rehabilitation costs
– 1989 Recommendation
• Internalization of damage costs
– 1991 Recommendation
Rio Declaration: P-16
• National authorities should – at the inter-national level
• endeavor to promote – not absolute or obligatory
• the internalization of environmental costs and the use
of economic instruments - beyond OECD definition
• taking into account that – non-binding language
• the polluter should, in principle,
• bear the cost of pollution - wide meaning of ‘cost’
• with due regard to the public interest and without
distorting international trade and investment – scope
for exceptions
Application of P-16: International &
Regional
• Unclear content and legal status
• Not an absolute principle
– Exceptions permitted
• Marine agreements – international and regional – Parties
are required to apply the PPP
• Operative provision - binding
 – Softer language of guidance • Environmental liability
agreements
• General principle?
– Preambles to some conventions
• Limited role
– North Sea Continental Shelf Case, ICJ Reports (1969) 3, para
72.
PPP in Domestic Environmental Law

• Implicit or explicit
• Judicial Decisions
– Indian Council for Enviro-Legal Action v. UoI (1996,
 SC) [Bicchri case]
– Vellore Citizens’ Welfare Forum v. UoI and Others
(1996, SC) [Vellore case]
• Legislation
Bicchri case
• PPP has ‘now come to be accepted universally as a
sound principle’ and ‘has gained almost universal
recognition’
– Based on a journal article discussing PPP in the context of
the OECD and the EC
 – General principle of law prevalent in other systems
– No reference to international environmental law
– No reference to the Constitution of India and/or domestic
legislation
• Offending industry is responsible for repairing the
damage
• Referred to in a number of subsequent decisions
Vellore case

• Two sources of PPP

– Implicit inclusion in the constitutional provisions
relating to environmental protection as well as
 environmental legislation, such as Water
(Prevention and Control of Pollution) Act, 1974
and Environment (Protection) Act, 1986
– Its status as a principle of customary international
law
• No reference to Rio Declaration
PPP in Domestic Legislation

• National Green Tribunal Act, 2010

– NGT is required to apply PPP in all its orders etc.
• Hazardous Wastes (Management, Handling
and Transboundary Movement) Rules, 2008 &
E-Waste (Management and Handling) Rules,
2011
– Certain entities are responsible for preventing
environmental damage and liable in case of their
failure to do this
Issues
• Who is a polluter? Industry, government or members of the public
• What does the polluter have to pay for? Past, present or future
pollution
• When is the obligation to pay triggered? Violation of an
environmental standard and occurrence of actual harm, violation of
an environmental standard without occurrence of actual harm
(potential to harm); occurrence of actual harm without violation of
an environmental standard
• How to determine payment? Percentage of annual turnover
formula or absolute liability principle etc.
• What is to be paid? Monetary compensation to victims, costs for
environmental damage to affected persons or into a
governmentmanaged fund or punitive/exemplary costs
• Who has to actually pay? Polluter, government or members of the
public
 PRECAUTIONARY PRINCIPLE OR
APPROACH
Background

• Swedish and German environmental law &

policy (national)
• 1982: World Charter for Nature
• 1984: North Sea Conference (international)
• 1990: Bergen Ministerial Declaration on SD
 (regional - EC)
• 1991: EU proposed a text
• 1992: UNCED
Rio Declaration: Principle 15

In order to protect the environment, the

precautionary approach shall be widely applied
by states according to their capabilities. Where
there are threats of serious or irreversible
damage, lack of full scientific certainty shall not
be used as a reason for postponing costeffective
measures to prevent environmental
degradation.
P-15 (contd)
• Does not have normative character of rule of law • Phrased
in very general terms
• What it does?
– Helps identify whether a legally significant risk exists by
addressing the role of scientific uncertainty
• What it does not do?
– What should the ‘measures’ be?
 – How to control the ‘risk’?
– What level of ‘risk’ is socially acceptable?

• Questions best answered by politicians and society; rather

than courts or scientists
Approach, not Principle
• US insistence
• Offers greater flexibility + less potentially restrictive
• Is the difference significant?
– High uncertainty and costs - risk of irreversible harm
– Significant level of uncertainty and potential costs – harm
is less irreversible
• European treaties and EC law
– Precautionary principle
• Global agreements
– Precautionary approach or measures
Strong v. Weak version
• Strong version
– Potentially risky activity is banned
– Burden of proof on proponent to demonstrate that
the activity is benign and that it poses no (or
acceptable) risk
 – Can stifle innovation and creativity, hamper scientific
and technological advancement and result in
regulatory paralysis (Sunstein)
– Not supported in IL
– Adopted by SC of India (Vellore case)
• Weak version
Application of P-15: International

• Widely endorsed by states • Agenda 21

• Applied/endorsed by a growing number of IOs and
treaty bodies
 • Matter of policy
• Legally binding treaty articles and subsidiary rules

• Different thresholds of harm

• UNFCCC: risk of ‘serious or irreversible harm’
• Burden of proof
• Reversal
• Lower standard of proof
Application of P-15: ICJ

• Gabcikovo-Nagymaros Case
• Relied on by Hungary
 • Referred to with approval by Judge Weeramantry in his
dissent
• No reference by ICJ although willing to apply new norms of
IEL
– Environmental risks were sufficiently certain
– ICJ did not regard the principle as having any legal status

• Pulp Mills Case (2006)

• Referred to in the dissent of ad hoc Judge Vinuesa
Application of P-15: WTO

• Beef Hormones Case (1998)

• EC: principle of customary law or general principle of law
 • Canada: emerging principle of IL
• US: denied that it had any legal status
• WTO AB
– Applicable agreement incorporated precautionary elements
– Uncertain legal status of principle in general IL

Application of P-15: ITLOS

• Southern Bluefin Tuna Case (Provisional Measures) Cases
(1999)
• Conservation of tuna stocks
• ITLOS took no view on precautionary principle/approach in general
IL
• ITLOS relied on scientific uncertainty to justify grant of provisional
measures to protect the stock from further depletion pending
dispute resolution

• Precautionary approach is inherent in award of

provisional measures
• UNCLOS 1982 in effect requires a precautionary
approach to fisheries conservation
Is it Customary International Law?
• WTO Asbestos Case
• EC argued that principle is customary IL
– Not accepted by Appellate Body
• Advisory Opinion on Responsibilities and Obligations of
States Sponsoring Persons and Entities w.r.t. Activities in
the Area (2011)
– Seabed Disputes Chamber
– The incorporation of the precautionary approach into a
growing number of international treaties and other
instruments, many of which reflect the formulation of P15,
has initiated a trend towards making the approach part of
customary IL.
Issues
• Changes the role of scientific data in environmental cases
• Not applied universally
• Uncertainties in meaning, application & implications
• Concept of precaution means different things in different
contexts
– Identification of risk
– How to respond to that risk
• Customary obligation of due diligence

• What do the States have to do?

– Are they required to act?
– Are they empowered to act?
– Are they encouraged to be more cautious?
 Vellore case
• The principle requires the state to take environmental
measures ‘to anticipate, prevent and attack’ the causes
of environmental degradation. [Prevention]
• 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. [Precautionary principle]
• The onus of proof is on the actor or the
developer/industrialist to demonstrate that the
 proposed action is ‘environmentally benign’. [Burden
of proof]
Precaution in Other SC Decisions
• AP PCB v. MV Nayudu (1999)
– Principle used to emphasize the need for scientific inputs
before adjudicating complicated issues of environmental
pollution
• TN Godavarman Thirumalpad v. UoI & Others (2002)
– Principle of proportionality – balance priorities of
development and environmental protection
• TN Godavarman Thirumalpad v. UoI & Others (2006)
Principle used to advocate general ‘precautionary measures’