Development of Environmental Laws and Role of International Convention

 

Author: Anshu Bansal, Research Associate

International conventions are one of the prime sources that proved to be one of the most important reasons for development of environmental laws and its policies. Scientific evidences show that if the international agreements are adhered to in its true sense, the ozone layer is expected to recover by 2050 ((Speth, J. G. ,Red Sky at Morning: America and the Crisis of the Global Environment 95 (2004).)). In the present scenario, there are ample numbers of instances where national laws of the countries are being framed in order to make it in compliance with international commitments.

Journey From Stockholm To Rio declaration

The development of international environmental law has its beginning from the Declaration of the United Nations Conference on the Human Environment which was unanimously adopted by the U N Conference in Stockholm in June 1972. The general principle of international law that there should be healthy relation with the neighbour is also recognised in the Stockholm declaration. It is stated  that “States have, in accordance with the Charter of the  United Nations and the principles of international law, the  sovereign right to exploit their resources pursuant to their  own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment beyond the limits of national jurisdiction ((UN Document A/CONF 48/14.)).”

Before the Stockholm declaration, most of the environmental protection measures were used for conservation of wildlife protection like 1902 Convention for the Protection of Birds Useful to Agriculture etc. The gap of 20 years between Stockholm conference on the Human environment and UN Conference on Environment and Development led to the formation and astonishing increase in many legal instruments governing environmental issues. It also led to increase in the awareness of the people regarding potential threat to environment from human activities ((Available at http://www.ilo.org/oshenc/part-vii/environmental-policy/item/744-international-environmental-conventions)).

The convention on biological diversity was also approved in 1992 UNCED in Rio de Janeiro. The convention had three main objective i.e. conservation of biological diversity, sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources ((Article 1, Convention on Biological diversity.)). This convention is also supported by many protocols like Cartagena protocol, Nagoya protocol etc.  India’s Biological diversity Act, 2002 is the aftermath of convention on biological diversity. In order to fulfil the objective of CBD, biological diversity act was passed which created separate autonomous body in 2003 for fulfilling the objective of biological diversity Act, 2002. There are also general provisions relating to access to genetic resources and access to, and transfer of, relevant technology, including biotechnology, as well as international exchange of information and cooperation.

CBD urges parties to consider the need for and modalities of a protocol setting out appropriate procedures for the safe transfer, handling and use of LMOs that may have an adverse effect on the conservation and sustainable use of biodiversity ((Convention on Biological Diversity,1992, Art. 19(3).)). Its approach is based on the fundamental premise that nation states have sovereign rights over the biological diversity within their territory ((Id., Preamble and Art.15(1).)). It also recognises that national government have the authority to determine access to these resources in accordance with national requirement ((Id.)). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it ((Rio Declaration on Environment and Development, 1992, Principal 4.)).

The initial motivation for drafting the CBD was to alleviate the global interest biodiversity conservation burden placed on the biodiversity reached developing country. During the drafting process negotiation embraced all the aspects related to biodiversity conservation, including such issues as the inequity in international policies regarding flows of genetic resources, basic legal guidelines for the regulation of access to biodiversity, access to biotechnology and sharing of benefits derived from the use of genetic material ((Carmen Richerzhagen, Protecting Biological Diversity: The Effectiveness of Access and BENEFIT (2010).)).

Montreal and Kyoto protocol

 “Perhaps the single most successful international agreement to date has been the Montreal Protocol ((The Ozone Hole-The Montreal Protocol on Substances that Deplete the Ozone Layer available at Theozonehole.com. (16 September 1987).)).

The Montreal protocol is different in the sense that it is recognised with the maximum number of countries ratifying the protocol. Interestingly this made it the most widely ratified treaties in United Nations history ((UNEP press release: “South Sudan Joins Montreal Protocol and Commits to Phasing Out Ozone-Damaging Substances.)).

There are some important facts about this protocol which is often overlooked. These are ((Canan, Penelope and Nancy Reichman (2013, forthcoming), “The Montreal Protocol” in J. Britt Holbrook (Chief Editor) Ethics, Science, Technology, and Engineering: An International Resource, 2nd Edition, Thompson Learning)):

  • The Montreal Protocol was the first international treaty to address a global environmental regulatory challenge.
  • It was the first to embrace the “precautionary principle” in its design for science-based policymaking.
  • The first treaty where independent experts are there for atmospheric science, environmental impacts, chemical technology, and economics.

It is commendable that Montreal Protocol is still working and there are evidence which shows that the atmospheric burden of ozone-depleting substances is decreased and also showed some early signs of stratospheric ozone recovery ((The most recent (2006) scientific evaluation of the effects of the Montreal Protocol states Scientific Assessment of Ozone Depletion ( 2006), available at http://www.esrl.noaa.gov/csd/assessments/2006/report.html.)). Hence, the year 2012 which marked the 25th anniversary of the signing of the Montreal Protocol is a historic year.

On the other hand, Kyoto protocol to the United Nations Framework Convention on Climate Change (UNFCCC) is an international treaty that sets binding obligations on industrialised countries to reduce emissions of greenhouse gases. Unfortunately, developed countries are reluctant to ratify this protocol out of the fear that their development might get hampered by ratifying it. Recently, United States signed this treaty but till now it has not ratified the protocol. In the year 2011, Canada withdrew from the protocol saying that the accord won’t help solve the climate crisis ((StarTribune – Canada formally pulls out of Kyoto Protocol on climate change (May 2012).)).

It was also said that, “The Kyoto Protocol does not cover the world’s largest two emitters, United States and China, and therefore cannot work,” Kent said. “It’s now clear that Kyoto is not the path forward to a global solution to climate change. If anything it’s an impediment ((Id.)).” The only legally binding plan for combating global warming is the summit in Doha which established for the first time that rich nations should move towards compensating poor nations for losses due to climate change. Developing nations hailed it as a breakthrough, but condemned the gulf between the science of climate change and political attempts to tackle it. The deal, agreed by nearly 200 nations, extends to 2020 the Kyoto Protocol ((Available at http://www.bbc.co.uk/news/science-environment-20653018)). It is pertinent to mention here that the first commitment period ended in 2012 (2008-2012) and second period is expected to end in 2020 ((Harrabin, R. (8 December 2012), “UN climate talks extend Kyoto Protocol, promise compensation, BBC News)).

In addition to all this, the Earth Summit Bulletin described Earth summit as ‘the creation of an elaborate programming tool that could set the planet on a new course to global sustainable development ((Earth Summit Bulletin, 16 June, 1992.)). Some characterized earth summit as the world’s largest cocktail party ((Remark attributed to the former EC Environment Commissioner Carlo Ripa di Meana who refused to attend.))or simply a ‘gold-pen-photo-opportunity ((David Freestone , THE ROAD FROM RIO: INTERNATIONAL ENVIRONMENTAL LAW AFTER THE EARTH SUMMIT ,6 J. Envtl. L. 193 1994.)).

Hence, it can be concluded that international conventions has indeed played a very important role in the development of environmental laws and many new perspective and interpretations of international conventions is yet to come.

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