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Published : May 14, 2010 | Author : dhruvesh1989
Category : Environmental Law | Total Views : 4936 | Unrated

  
dhruvesh1989
Dhruvesh Singh Yadav Dr. RML National Law University, Lucknow 3rd Year Student
 

Changing Dimension of Environmental Law

The path of environmental law has come to a cliff called climate change, and there is no turning around. As climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this “adaptation deficit” become a concern now actively included in climate change policy debate. Previously treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success.

Global change is altering this vision by causing states to realize that they are locked together in sharing the use of a common global environment. While human activities have always contributed to environmental change, it is only within the last half of this century that their effects have become global and serious, and in many cases irreversible. This has led to a growing awareness that the interests of humankind must constrain the interests of individual states. Moreover, actors other than states have become essential to managing global environmental change. These developments are leading to a fundamental shift in the paradigm of international law that is evolving in the international environmental field. This book examines some of the ways in which international environmental law is responding to global environmental change and suggests new directions for the field.

Conditions favoring "transparency," "glasnost," and public access to information have greatly improved since 1972, both nationally and internationally, and the end of the Cold War removes social constraints from broad application of new technologies that can improve availability of information useful for reducing global risk and putting development on a sustainable basis. However, the kinds of information sought for the goals to be set in 1992 will be challenging, especially since the parallel issues of environment and development are now formally joined for the first time, and we are forced to recognize links between local development action and global environmental change; even national or local actions taken in the name of "development" - to improve the quality of life for present generations or to satisfy consumption demands of the affluent3 - can pose risks of global as well as local impacts.

Emerging Issue On Prevention And Mitigation For Environmental Harm:-
Traditional norms, principles, and rules of international environmental law, as typically shown in the Tran frontier pollution context, centre mainly on how to reconcile the conflicting interests of the concerned states in order to reach an equitable solution. Presumptions inherent in traditional international environmental law are that the concerned states are identifiable and geographically adjacent (i.e., "acting" and "affected" states, upstream and downstream states, etc.); that the effect of pollution is of limited geographical expansion; that it is relatively easy to identify causation between polluting states and victim states; and that damage can be calculated and compensated.

Prevention and mitigation are two tools used for the protection of the environment. The principle of prevention purports to prevent specific harms from arising, e.g., alteration of the environment, damage to people or the environment, interference with legitimate and legal uses of the environment, and overload of the assimilative capacity of the environment.1 The principle of mitigation, on the other hand, purports to minimize the occurrence of such specific harms. Principles of prevention and mitigation work together in the international regulation of pollution or environmental harm. Prevention is less costly than reparation both in economic and social terms because of the intrinsic nature of pollution or environmental harm - i.e., their long-lasting and irreversible detrimental effects upon people and the environment. Consequently, more importance has been given in international environmental law to the principles of prevention and mitigation than to reparation. While the principle of liability does have a deterrent effect on environmental harm, preventive and mitigate measures have an even more direct and effective deterrent effect.

Substantive principles and rules have been developed in the process of treaty-making on marine pollution, pollution of international rivers and lakes, atmospheric pollution, and the protection and conservation of fauna and flora. The international regulation of these problems has placed emphasis upon prevention rather than upon ex post facto remedies. Common legal techniques that are used include the identification of regulated activities and pollutants, the demarcation of the extent of jurisdiction, and the establishment of a regulating method, e.g., total prohibitions or restrictions on the production, trade, consumption, disposal, or emission of certain substances or pollutants, and standard-setting for those purposes.[1]

State Responsibility, Liability, Remedial Measure Under International Law: New Criteria For Environmental Protection:-
In this context it is hardly surprising that the remedies attached to the operation of responsibility were equally of a limited value. In essence, remedies purported to lead to restitutio in integrum where at all possible through compensation or other forms of reparation. Unilateral or anticipatory remedial action has never been favored in international law in view of the risk of abuse involved, which has meant an even more limited availability of remedies. Needless to say, procedural arrangements have in general been slow and drawn out. This chapter examines specifically the changing conditions arising from the need to ensure adequate environmental protection in the international domain, and the impact this has had on the Law of State Responsibility. It is through this perspective that one can best realize to what extent there has been an evolution in this body of law and to what extent some of its prevailing shortcomings still remain. This distinction has not passed unchallenged. Brown lie has made the argument that the normal principles of state responsibility can well sustain liability, particularly as it concerns extra-hazardous operations. In this context the critical issue is the content of the rules and not the distinction between lawful and unlawful activities, especially since either way leads to reparation and compensation. In practice, however, this distinction is gaining ground in several treaty regimes, although it is also true that a number of legal consequences are attached to given activities resulting in damage irrespective of their lawful or unlawful character. A second conceptual development serves as a useful analytical tool: the distinction between "primary" and "secondary" rules. The former relate to obligations, the breach of which may lead to responsibility, while the latter relate to the legal consequences of failure to comply with the obligations arising from the primary rules. Secondary rules are those specifically dealing with the issue of responsibility and liability, although these issues cannot always actually be separated from the operation of the primary rules. the important document prepared by the Italian government on the international law of the environment indicates that in practice one can observe significant developments in the treaty rules dealing with the environment (the primary rules), but not a parallel evolution in the rules on responsibility, which are either non-existent or overly general in those regimes. the result is that the secondary rules lag behind those developed in the primary level. in spite of these shortcomings, practice shows the acceptance of a general principle of responsibility for environmental damage caused by activities within state jurisdiction or control.

Law And Global Environmental: Some Open Issue:
The emergence of these new environmental risks had profound implications for the legal system in the sphere of both public and private law. It entailed new demands on the state, its administrative apparatus and civil society, and a new set of duties and rights governing relations between states. Most importantly, it called for a fundamental reassessment of tort law and, ultimately, the shift of emphasis from traditional compensatory remedies to a system of preventive norms coupled with more purposeful enforcement measures. At a national level statutory changes occurred quite rapidly, essentially in the course of the past four decades.[2] public opinion and pressures from a structured civil society obviously accelerated the legislative process. At the international level, positive law developed more slowly, but the same pressures of public opinion generated an impressive body of "soft law" that may not be executor per se, but clearly points the way to the new norms and processes expected to govern the international community and, in some instances, were recognized as customary law[3] or translated into binding bilateral or multilateral compacts in a process much more dynamic and purposeful than the traditional meandering from doctrine to ad hoc conflict resolution to commissions of learned jurists and eventually treaty law. Indeed, the importance of "soft law" - Stockholm, Brundtland, OECD declarations and resolutions, and directives such as those of the European Economic Community - cannot be underrated in the genesis of a new international law of the environment.While the preventive schemes emerging at multilateral levels whether regional, subregional, or global - are still to a large extent in the nature of "soft" law, their basic concept follows the approach of national legislation: generically formulated obligations ("framework" norms); absolute or conditional prohibitions; requirement of prior authorization and creation of the corresponding regulatory and supervisory mechanisms, as well as technical norms setting qualitative and quantitative standards; special organs charged with environmental policy formulation or coordination, monitoring, and control; statutory provisions calling for the prior assessment of environmental impact, the notification of risks, as well as emergency plans and damage-containment schemes for high-risk activities; direct community involvement in policy formulation and environmental management, information of the public, etc.

The difference between national and multilateral schemes is, of course, that the international community and its organs have no power of coercion other than through public opinion, boycotts, or retaliation and the very limited scope of compulsory international jurisdiction; nor are there at that level -except in limited regional contexts - any standing legislative bodies, budget authorities, and, consequently, budgetary allocations sufficient to implement and enforce serious environmental policy. It follows from this that unlike their counterparts in domestic law (or in EEC decisions), preventive treaty-norms cannot be executory, but take the form of explicit duties of the contracting states to regulate, supervise, monitor, legislate on matters such as liability for damage, provide access to courts, etc. Implementation and enforcement remain the responsibility of each state concerned. There are nevertheless some basic issues common to both national and international law. One of them has become particularly visible in the current global-warming debate - as it was, in the 1960s, with regard to nuclear hazards, and in particular the disposal of radioactive waste: should the legislator, when facing substantial uncertainties with regard to the potential hazard of particular activities, assume the worst and prohibit an activity (or regulate it, setting rigorous safety standards for it) unless its harmlessness has been proved, or should prohibitions and strict standards be adopted only when the hazard has been clearly demonstrated, at least in terms of probabilities? While the standards of care implicit in strict tort liability, and, in international law, the Ozone Layer Convention and Montreal Protocol8 denote a cautious, pessimistic approach, there continue to be strong pressures in the opposite direction in current international negotiations. In connection with international technical norms, the question has been raised as to whether more lenient standards (or more gradual timetables for their adoption) should apply to developing countries. While such double standards may be an attractive political expedient, one wonders whether it would not be preferable for the international community to provide direct financial support for the introduction of environment-friendly technologies in such countries, the more so as the adoption of double standards might, in the long run, condemn developing countries to chronic technological obsolescence. many treaties and draft treaties dealing with the environment stipulate a general obligation of states to collaborate (whether or not in the context of a particular intergovernmental organization or programme) with regard to research, monitoring, supervision, and the development of international law. In some instances, this is reflected in the "plans of action" appended to hortatory instruments such as the Stockholm Declaration and its subsequent endorsement by the UN General Assembly."[4] These clauses or plans of action do not, by themselves, entail very concrete obligations, but would evidently gain in significance in the perspective of a future strengthening of intergovernmental institutions - sectoral or general charged with environmental matters

Some Important Conferences:
1. Stockholm 1972 - United Nations Environment Programme (Unep):
The meeting agreed upon a Declaration containing 26 principles concerning the environment and development; an Action Plan with 109 recommendations, and a Resolution. One of the key issues addressed was the use of CFCs (haloalkanes), which seemed to be responsible for the depletion of the ozone layer. Global warming was mentioned, but in this matter nothing of substance was achieved at this Conference. Apart from increasing awareness of environmental issues among public and governments (for example, many governments subsequently created Ministries for the Environment and/or national agencies for environmental monitoring and regulation), the Stockholm Conference laid framework for future environmental cooperation; led to the creation of global and regional environmental monitoring networks and the creation of the United Nations Environment Programme.[5]

At its 20th plenary meeting, held on 16 June 1972, the President of the Conference proposed that the Conference, having accepted the framework for environmental action and having adopted recommendations for action at the international level, entrust the Secretary-General of the Conference with the task of fitting the recommendations which the Conference had adopted into the framework,' and that, on that understanding, the Action Plan for the Human Environment be approved for inclusion in the report of the Conference. The President's proposal was adopted by the Conference.

2. Europa - Environment - World Summit On Sustainable Development In 2002
he European Union will continue to promote a positive agenda for globalisation, finance and trade. Important steps to ensure that globalisation benefit all have recently been taken through the Doha Development Agenda and the Monterrey Consensus. The achievements of these conferences should not be put into question in Johannesburg but ways and means to build upon them should be identified. As an example in Johannesburg, the EU is putting forward a number of positive and supportive measures on trade and investment, outside the scope of Doha Development Agenda and the Monterrey Consensus, which specifically would contribute to sustainable development in developing countries. These measures include the creation of conditions to promote investment flows to developing countries, corporate responsibility and accountability and promotion of investments in support of sustainable development through export credits and investment guarantee schemes.

3. Copenhagen Climate Conference 2009:
The outcome of the copenhegan climate conference are:
1. To reduce global emissions and bring global temperature below 2* C
2. A proposal attached to the accord calls for a legally binding treaty by next year.
3. The deal promises short-term financing pledge from developed countries for 2010-2012 EU$ 10.6 bn.[6]
4. Details of mitigation plans are included in separate annexes, one for developed country targets and one for the voluntary pledge of developing countries.[7]

Conclusion:
The environmental consciousness of the world community is growing at a rate unprecedented for the spread of any intellectual concept or the acceptance of new ways of defining the interaction of humanity and nature. Almost surely the result of this growth will be an early (i.e., at or soon after the 1992 Conference on Environment and Development) need to restructure the current international institutional arrangements for dealing with environmental protection, so as to achieve greater prominence, power, and coherence. As this study seeks to show, there is no lack of institutional models, for most of which there are precedents, though some reflect designs yet to be implemented, for accomplishing whatever the world community is prepared for at this juncture, when outmoded military preoccupations are suddenly though belatedly yielding to more urgent economic and scientific imperatives.

Bibliography
1. Environmental Law (6th Edition) by Nancy K. Kubasek and Gary S. Silverman
2. Environmental Protection, Law and Policy in India by Kailash Tha
3. Environmental Legislation in India (Encyclopaedia of Environment), Vol. 4 by R.K. Gupta
4. http://www.unu.edu/unupress/unupbooks/uu25ee/uu25ee0i.htm
--------------------------------------------------------------------------------
[1] the scenario of possible flooding of part of the territory of Bangladesh resulting from sea-level rise in World Resources 1988-89, 173-174 (Basic Books, 1988). & Pravda, 18 July 1989.
[2] The advent of the nuclear age, and the awareness of new, man-made risks of a magnitude never before experienced had a determinant effect on the speed with which this change occurred.
[3] For example, although completed in 1982 after eight years of negotiations and signed by over 150 states, the United Nations Convention on the Law of the Sea has not yet entered into force. However, "by express or tacit agreement accompanied by consistent practice, the United States, and States generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary international law binding upon them apart from the Convention." Introductory Note to Part V: The Law of the Sea, 2 Restatement Third of the Foreign Relations Law of the United States, 5 (1987)
[4] The consolidated claims were dismissed on the grounds of forum non convenience, thereby sending the litigation back to Indian courts. V. Nanda, "For Whom the Bell Tolls in the Aftermath of the Bhopal Tragedy: Reflections on Forum non Convenience and Alternative Methods of Resolving the Bhopal Dispute," 15 Denver Journal of International Law and Policy, 235, 236-240 (1987). See, Indian Law Institute, Inconvenient Forum and Convenient Catastrophe: The Bhopal Case (1986) (for a critical look at the US Court's decision not to hear the case and many of the documents relevant to the litigation).
[5] John Baylis, Steve Smith. 2005. The Globalization of World Politics (3rd ed). Oxford. Oxford University Press. P.454-455
[6] Papanicolaou, Chris; Lauren Fendick (2010-01-25). "Copenhagen summit fails to produce new global climate change treaty". Jones Day. http://www.lexology.com/library/detail.aspx?g=456748b1-18cc-47c9-a3c7-71004b1f0f69 Retrieved 2010-02-07
[7] Vidal, John; Allegra Stratton and Suzanne Goldenberg (19 December 2009). "Low targets, goals dropped: Copenhagen ends in failure

Authors contact info - articles The  author can be reached at: dhruvesh1989@legalserviceindia.com




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Article Comments

Posted by Smithd539 on April 01, 2014
Very nice!

Posted by siva.jurist on October 23, 2010
hello dhruvesh . article is very nice keep it up

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