Author: Akshay Shandilya, Research Associate
The Statute of ICJ has not laid down any order in which the Court is expected to apply various sources of international law. Still, placing an international convention at the top of the list of sources available to the court is a testament to the value and emergence of treaties as the most important source ((Bharat h. Desai, Multilateral Environmental Agreements 19 (2010).)). These caucuses have contributed majorly towards the codification of International Environmental Law which links individuals and their local governments into a worldwide network. This system is not often perceived locally, because each country’s own legislation and institutions are assigned the job of applying the shared environmental rules ((See Nicholas A. Robinson, Agenda 21: Earth’s Action Plan, IUCN Environmental Policy & Law Paper No. 27, p. xiv.)). Therefore, one would not be wrong if one says that the remarkable growth of international environmental law is attributed to multilateral treaties whose subject matters are mega-diverse. This article concentrates on such global engagements aiming for a cleaner future. It is however interesting to note that there is an increasing tendency, especially among industrialized states, to push for a global framework addressing environmental issues.
Role of International Conventions in Environment Protection
It is now well understood that many environmental challenges are global in nature. This recognition has led to a proliferation of international legal instruments directed at environmental conservation and protection, such as multilateral environmental agreements (MEAs) ((Louise Kathleen Camenzuli, The development of international environmental law at the Multilateral Environmental Agreements’ Conference of the Parties and its validity, 2007, http://cmsdata.iucn.org/downloads/cel10_camenzuli.pdf.)). As the environment does not respect national borders its protection, as well as to some extent sustainable development have become from the outset highly international issues ((See U.S. v. Canada, Vol. 35 A.J.I.L. (1941), p. 684, more popularly known as “Trail Smelter Arbitration Case.”)). Especially, formal international cooperation for the environment requires a firm agreement between the states concerned with t objectives of this cooperation and on the ways and means to achieve them. Such agreements take the form of law, which prescribes the behavior of the respective states and their agents, be it in the field of sustainable development or the protection of the environment ((Winfried Lang, Treaties as a Source of International Environmental Law, EOLSS, http://www.eolss.net/Sample-Chapters/C14/E1-36-05.pdf.)). An important aspect of international environmental regulation is the development of “soft law”: non-binding instruments which lay down guidelines or desiderata for future action, or through which states commit themselves politically to meeting certain objectives. These soft law instruments sometimes develop into formal legal instruments or become linked to binding instruments as, for example, through decisions of the parties to a Convention ((David Freestone, International Environmental Conventions, ILO Environment Policy, http://www.ilo.org/oshenc/part-vii/environmental-policy/item/744-international-environmental-conventions.)).
The Historic Meet at Stockholm (1972)
The year 1972 has been a landmark in the history of environmental management. It was the year in which the United Nations Conference on Human Environment was held at Stockholm. The views expressed at the Stockholm Conference formed a core part of the basic environmental philosophy of many States and found expression in various governmental policy pronouncements in subsequent years. The conference, convened by the UN General Assembly, launched a formal process of institutionalization of international environmental cooperation by providing a sound trajectory for formulation of environmental principles ((Bharat, Supra note 1, at 27.)).
The Conference issued the Declaration on the Human Environment ((The Declaration was passed under the head “The Magna Carta of our Environment”.)), a statement containing 26 principles and 109 recommendations. The creation of an environmental agency was also approved, now known as UNEP (United Nations Environment Programme). In addition to the foregoing establishment, there was the adoption of ‘Stockholm Action Program’. Though there were no legally binding outcomes resulting from the Stockholm Conference it facilitated the enactment of the 42nd Constitutional Amendment, 1976, in India. This amendment has introduced certain environmental duties both on the part of the citizens [Article 51A (g)] and on the state (Article 48-A). Principle 21 of the Declaration was a restatement of law already in existence since Roman times, namely that of ‘good neighbourliness’. The Action Plan was also never successfully followed by any country. But, the Stockholm Declaration necessarily had an impact on the Indian Judiciary. The Courts in India also have given new interpretation to constitutional provisions relating to environmental protection and delivered landmark judgments ((In Vellore Citizen’s welfare Forum v. Union of India AIR 1996 SC 2715, the Supreme Court gave its approval to the “sustainable development” doctrine; in M.C. Mehta v. Union of India 1991 (4) SCC 584 the Court evolved the principle of ‘absolute liability’, in Kamalnath v. Union of India 1997 (1) SCC 388 the Court evolved the “Public Trust Doctrine”; The “polluter pays’ principle” was held to be a sound principle by the apex court in Indian Council for Enviro-Legal Action v. Union of India (The Bichhri Case), 1996 (3) SCC 212.)).
Hague Declaration (1989)
The Hague Declaration, signed by the heads of states of 24 countries, recognized “the right to live in dignity in a viable global environment, and the consequent duty of the community of nations vis-à-vis present and future generations to do all that can be done to preserve the quality of the atmosphere ((Hague Declaration on the Environment, International Legal Materials, Vol. 28, No. 5 (SEPTEMBER 1989), pp. 1308-1310.)).” So the Declaration expressly recognized that “environmental harm threatens the right to live in dignity”. The view of artificially induced environmental degradation has graduated from recognizing the harm done to natural resources, to the recognition that the harmful disturbance of our planet’s biodiversity directly and negatively impacts human life ((Romina Picolotti, Proposal for the adoption of Inter American Legislation on Human Rights and the Environment, Center for Human Rights and Environment, 3, http://wp.cedha.net/wp-content/uploads/2011/05/Center-for-Human-Rights-and-Environment.pdf.)). The Hague Declaration was monumental in furthering that.
Montreal Protocol: The Ozone Protector (1989)
The Montreal Protocol on Substances that Deplete the Ozone Layer was designed to reduce the production and consumption of ozone depleting substances in order to reduce their abundance in the atmosphere, and thereby protect the earth’s fragile ozone Layer ((The Montreal Protocol on Substances that Deplete the Ozone Layer, UNEP Ozone Secretariat, http://ozone.unep.org/new_site/en/montreal_protocol.php.)). The treaty is structured around several groups of halogenated hydrocarbons that have been shown to play a role in ozone depletion. All of these ozone depleting substances contain either chlorine or bromine (substances containing fluorine-only do not harm the ozone layer). The treaty was opened for signature in 1987 and entered into force in 1989 ((The full terms are available at http://ozone.unep.org/Publications/MP_Handbook/Section_1.1_The_Montreal_Protocol.)). The Montreal Protocol was one of the first environmental agreements to formally recognize the precautionary principle ((Brief Primer on the Montreal Protocol, UNEP Ozone Secretariat, http://ozone.unep.org/Publications/MP_Brief_Primer_on_MP-E.pdf.)). The Protocol also established a Multilateral Fund with the goal of enabling developing countries’ compliance with specific time-bound reduction targets for the chemicals controlled by the Protocol. Contributions to the Fund come from developed countries.
Rio’s Contribution (1992)
The UN General Assembly decided to convene ((The General Assembly resolution 44/228 of December 22, 1989; UN GAOR Supp. 49, p. 151; UN Doc. A/44/49, 1989 (hereinafter UNCED).))the UN Conference on Environment and Development (UNCED) in Brazil. It was expected to be of the highest possible of participation, which earned the UNCED the nomenclature of Earth Summit and it actually culminated in being the largest convention in the history of international relations. Maurice Strong, the Chief of the Conference, described it as the “Parliament of the Planet”. The Summit led to the adoption of several important legally binding environmental treaties, being the 1992 United Nations Framework Convention on Climate Change and the 1992 Convention on Biological Diversity. In addition to these, the parties adopted a ‘soft law’ or non-binding agreement in the form of Declaration on Environment and Development which reaffirmed the Stockholm Declaration and provided 27 principles guiding environment and development. Another influential soft law document that the parties adopted was Agenda 21, a guide to implementation of the treaties agreed to at the Summit and a guide as to the principles of sustainable development. Agenda 21 also established the United Nations Commission on Sustainable Development (CSD) and the Global Environment Facility (GEF). Finally, the non-legal, non-binding Forest Principles were formed at the Earth Summit.
In a way, the Rio Earth Summit provided a somber reminder of the apocalyptic predictions about the future of our fragile planet, which propelled the coming together of more than 100 heads of States or governments and representatives of 176 countries, in addition to thousands of non-governmental organizations and environmental activists on the global level ((Bharat, Supra note 1, at 31.)).
The Emergence of Kyoto Protocol (1997)
The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005 ((The full terms are available at: unfccc.int/resource/docs/convkp/kpeng.pdf.)). It is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its Parties by setting internationally binding emission reduction targets ((Kyoto Protocol, UNFCC, http://unfccc.int/kyoto_protocol/items/2830.php.)). Recognizing that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity, the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities ((Id.)).” The ultimate objective of the UNFCCC is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would stop dangerous anthropogenic interference with the climate system ((Article 2, The United Nations Framework Convention on Climate Change: “Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”.)).” The non-binding protocol broke new ground with three innovative mechanisms—Joint Implementation, the Clean Development Mechanism, and emissions trading a – designed to boost the cost-effectiveness of climate-change mitigation by opening ways for parties to cut emissions.
Effect of Multilateral Environmental Agreements
The global concerns for environmental crisis have led the evolution and remarkable growth of international environmental law ((See, Philippe Sands, Principles of International Environmental Law (2d ed. 2003). See also Pat Birnie and Alan Boyle, International Law and the Environment, (2d ed., 2002).)). Like international human rights law, discipline of international environmental law is one of the most important phenomena in post Stockholm Conference (1972) period. The growth of international environmental law has compelled us to revisit to our existing political, economic and social values and structure both at national and international levels. The most recent scientific evaluation of the effects of the Montreal Protocol states, “The Montreal Protocol is working: There is clear evidence of a decrease in the atmospheric burden of ozone-depleting substances and some early signs of stratospheric ozone recovery ((Scientific Assessment of Ozone Depletion, Earth System Research Laboratory, 2006, http://www.esrl.noaa.gov/csd/assessments/ozone/2006/report.html.)).” The Montreal Protocol became the first treaty in history to achieve universal ratification with 197 governments (Parties). As a consequence, it can now be said that the entire global community has legally committed itself to meeting specific time-bound targets for the virtual phase-out of nearly 100 chemicals that have ozone depleting properties ((Primer, Supra note 14.)). On the other hand Kyoto Protocol had only had a slight effect on curbing global emissions growth ((Integrating development into a global climate regime 233, World Bank, 2010, http://siteresources.worldbank.org/INTWDRS/Resources/477365-1327504426766/8389626-1327510418796/Chapter-5.pdf;)). According to a report released by the Dutch Environmental Assessment Agency this year ((Oliver, Janssens-Maenhout, & Peters, Trends in Global CO2 Emissions, PBL Netherlands Environmental Assessment Agency, 2012, http://edgar.jrc.ec.europa.eu/CO2REPORT2012.pdf.)), global CO2 emissions reached a peak of 34 billion tones in 2011 with China (29% share) and India (6%) among the top 5 emitters. It is not surprising to note that both the countries do not have commitment targets within the Kyoto protocol.
The quest of the effect of these conventions would inevitably lead one to the never-ending debate of the tussle between first and third world countries which is an utterly a different issue.