Please note that the contents are from original prescribed books and case

material and authentic sources as cited. Happy reading!

Unit:1: International Environmental Law: Cases

1.USA v.Canada (1941) (The Trail smelter case)

International law, and air and atmospheric pollution

The influence of international law on the regulation of air and atmospheric

pollution has been significant. Perhaps in recognition of the fact that many of
the problems caused by air pollution can have impacts across a large
geographical area and, in certain circumstances, cause truly global effects, there
have been a number of areas in which international law has helped to shape
policies and rules on both continental and domestic levels. In addition, the level
of cooperation on such issues is sometimes higher than in other areas, because
there is a general acceptance that there is a mutual responsibility among the
nation states of the world.1

Transboundary pollution

As the description of the development of the controls over air pollution

demonstrates, addressing local problems can often lead to a translocation of the
impacts of pollutants over large distances. The problem of transboundary harm
is not a recent phenomenon: air pollution from a Canadian smelter that
destroyed crops and forest over the border in the USA, for example, led to the
creation of a significant principle of customary international law.

Transboundar pollution and customary international law-USA v.Canada

(1941) (The Trail smelter case)

A Canadian mining company operated a large zinc and lead smelter along the
Columbia river at Trail, British Columbia. Sulphur dioxide emissions from two
large 400-foor chimneys at the smelter had damaged crops (wheat and oats),
trees used for logging, and pastures in the US state of Washington about ten
miles south of the smelter. The US government objected to the Canadian
government and the dispute went to arbitration on two occasions. The
International joint commission by the USA and Canada awarded the US

1
Stuart Bell and Donald McGillivray, Environmental Law, page n.516
government some $428,000 to compensate for damage caused to forests and
pastures, and imposed emission limits and monitoring requirements on the
smelter. In doing so it concluded that:

“…….no state has the right to use or permit the use of its territory in
such a manner as to cause injury by fumes in or to the territory of
another of the properties or persons therein, when the case is of
serious consequence and the injury is established by clear and
convincing evidence.”

 As Professor Eagleton puts while referring to Responsibility of

States in International Law, "A State owes at all times a
duty to protect other States against injurious acts by individuals
from within its jurisdiction."

2. Case Concerning the Gabcíkovo-Nagymaros Project

(Hungary/Slovakia), International Court of Justice,
Judgment of 25 September 1997 (separate opinion of
Vice-President Weeramantry) ..

The idea of nations owing obligations to all members of the

international community-that is obligations said to be owed
erga omnes ought to be especially relevant to international
environmental law. In practice, it has not been much relied
upon( although in the Gabcikovo case-Judge Weeramantry,
in a separate opinion, argued that sustainable development
and taking a precautious approach should have the same
status erga omnes, as international human rights).2

The Gabcikovo-Nagymaros case (1998) (The Danube

Dam case)3

The principle of sustainable development is an integral part

of modern international law.

(b) Environmental Protection as a Principle of

International Law

2
Stuart bell.
3
Case material.
The protection of the environment is likewise a vital part of
contemporary human rights doctrine, for it is a sine qua non
for numerous human rights such as the right to health and
the right to life itself. It is scarcely necessary to elaborate on
this, as damage to the environment can impair and
undermine al1 the human rights spoken of in the
Universal Declaration and other human rights instruments.
While, therefore, al1 peoples have the right to initiate
development projects and enjoy their benefits, there is
likewise a duty to ensure that those projects do not
significantly damage the environment.

 After the early formulations of the concept of

development, it has been recognized that
development cannot be pursued to such a point as
to result in substantial damage to the
environment within which it is to occur. Therefore,
development can only be prosecuted in harmony
with the reasonable demands of environmental
protection.
 It is thus the correct formulation of the right to
development that that right does not exist in the
absolute sense, but is relative always to its
tolerance by the environment. The right to
development as thus refined is clearly part of
modern international law. It is compendiously
referred to as sustainable development.

 The principle of sustainable development is thus a

part of modern international law by reason not
only of its inescapable logical necessity, but also
by reason of its wide and general acceptance by
the global community.
 The concept has a significant role to play in the
resolution of environmentally related disputes. The
components of the principle come from well-
established areas of international law - human
 rights, State responsibility, environmental law,
economic and industrial law, equity, territorial
sovereignty, abuse of rights, good
neighbourliness - to mention a few. It has also
been expressly incorporated into a number of
binding and far-reaching international agreements,
thus giving it binding force in the context of those
agreements. It offers an important principle for the
resolution of tensions between two established
rights. It reaffirms in the arena of international
law that there must be both development and
environmental protection, and that neither of
these rights can be neglected.

3. Case Concerning Pulp Mills on the River Uruguay

(Argentina/Uruguay), International Court of Justice,
Judgment of 20
April 2010

This judgment is a significant step forward in the ICJ’s jurisprudence on

environmental law and on shared watercourses. The Court recognized
environmental impact assessment as a practice that has become an obligation
of general international law in these situations. It further found that general
international law does not prescribe the scope or content of such
assessments. The Court has also fleshed out the definitions of a sustainable
development and an equitable and reasonable use of shared transboundary
watercourses by interpreting those terms in light of the facts of this case.4

***

Best regards, Dr.Stanzin Chostak, New Delhi, Dated:20.April

2020.

4
Available at https://www.asil.org/insights/volume/14/issue/9/pulp-mills-river-uruguay-international-court-
justice-recognizes, last visited on 20th April 2020.
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Please note that the contents are typed from original books as prescribed
except where otherwise cited. It is not a copy and paste work.Happy
reading!

UNIT 7: PROTECTION AND CONSERVATION OF FORESTS,

BIOLDIVERSITY AND WILDLIFE

According to India State of Forest Report (ISFR)”, 2019, the total forest and
tree cover of the country is 80.73 million hectare which is 24.56 percent of the
geographical area of the country.1

FOREST LAWS AND POLICY

When India gained Independence, forests were placed on the State List of the
Constitution. Forest departments of individual states continued to regulate
forests in accordance with the Indian forest Act of 1927, as implemented by
state regulations. The Indian Forest Act gives the state jurisdiction over both
public and private forests and facilitates the extraction of timber for profit.

 Public forests, those in which state governments have a proprietary

interest are divided into three categories:
(1) Reserve forests
(2) Village forests
(3) Protected forests
 Reserve forest: Forest land or wasteland may be notified as a reserve
forest by a state government’s declaration in the official gazette
(S.4.Indian Forest Act).
 Previously recognised individual and community rights over the forest
are extinguished upon such a notification and access to the forest and
forest products becomes a matter of privilege, subject to permission of
forest officials acting under governing laws and regulations.
 The Indian Forest Act includes procedures for making claims against the
government for the loss of legal rights over the forest.
 Village Forests: Village forests are established when a state assigns to a
village-community the rights over any land which has been constituted a

1
Available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1597987, last visited on 16thapril 2020.
 reserve forest, as per Sec.28. State governments make rules for managing
the village forest and prescribe conditions under which the village
community is provided with timber, other forest products or pasture. The
rules may also assign duties to the village for the protection and
improvement of the forest.
 Protected Forest: State governments may designate as a protected any
forest or wasteland in which the government has a proprietary right or
rights to any part of the forest’s products.
 Use of forest Land for non-forest purposes: Under the forest
Conservation Act, 1980, .S.2, explanation “non-forest purpose” means
the breaking up or clearing of any forest land or portion thereof for any
purpose other than reafforestation.
 The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants,
horticultural crops or medicinal plants are also non-forest purpose for the
purpose of the FC Act; However, any work relating or ancillary to
conservation, development and management of forests and wildlife,
namely, the establishment of checkposts, fire lines, wireless
communications and construction of fencing, bridges and culverts, dams,
waterholes, trench marks, boundary marks, pipelines or other like
purposes, are not considered as non-forest purpose.

Rights of Tribals and Forest Dwellers—The Scheduled Tribes and Other

Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of

Forest Rights) Act, 2006,(also called as Forest Rights Act(FRA), recognises the
rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers
over the forest areas inhabited by them and provides a framework for according
the same.2

 The legislation was promulgated to “recognise and vest forest rights and
occupation in forest land and in forest dwelling” to tribals and other
traditional forest dwellers ‘who have been residing in forests for
generations but whose rights could not be recorded.” 3
 The enacted Act aims not only to undo historical injustice to the above
two categories of people but also mandates that security of tenure is key
to integrating the forest dwelling Scheduled Tribes and other traditional
2
Gurdip Singh, Environmental Law, page 448.
3
Ibid
 forest dwellers who are dependent on the forest for their livelihoods and
for strengthening of the conservation regime.4

 Endowing the tribal people and other forest dwellers5 with certain rights6
and duties7, the law makes an attempt to recognise the symbiotic
relationship of the tribal people and the forest. The gram sabhas are
empowered to make decisions to regulate access to community resources
and stop any activity which adversely affects the wild animals, the forest
and the biodiversity.8
 It has become a duty of all holders of forests rights, gram sabha and
village institutions that these decisions are complied with.
 The forest dwellers in the Sixth Schedule areas have a form of self
government. The forest dwelling people in the Fifth schedule areas do not
have such a democratic system.9
 Empowering gram sabhas to take important eco-decisions is a step
forward in this direction. They make decisions involving a meaningful
forest management in their respective localities.

Salient features of the Forest Rights Act10

The Forest Rights Act recognises and vests secure community tenure on
“community forest resources”, which are defined as common forest land within
the traditional or customary boundaries of the village or seasonal use of land
scape in case of pastoral communities, including reserved forests, protected
forests and protected areas such as sanctuaries and national parks to which the
community had traditional access.

4
Ibid.
5
Forest Act, section.2(o).Member or community who has for at least three generations prior to the 13 th day of
December 2005, primarily resided in and who depend on the forest or forest land for bonafide livelihood
needs.
6
Sec.3. Forest rights include the right to hold and live in forests, to have title over lands, community rights over
nistar,( concessional supply of forest produce )entitlement to water bodies, grazing lands and
traditional resource access, biodiversity access and community right to intellectual property and traditional
knowledge related to forest diversity and cultural diversity.
7
S.5. The duties include protection of wildlife, forest and diversity and other ecologically sensitive areas and
ensuring that the habitat is preserved and the decisions by gram sabha to regulate activities affecting forest
and biodiversity are complied with.
8
S.3 (2)(ii) :role in the clearance of development projects; sec.4(2)(e) free and informed consent for
modification of forest rights in critical wildlife habitat; S.5:duty to protect forest habitats; sec.6: authority to
determine forest rights.
9
P.LEELAKRISHNANAN, ENVIRONMENTAL LAW BOOK, PAGE no.42.
10
GURDIP SINGH, page no.450.
The salient provisions related to community rights, listed in chapter 2 of the
Act, cover the following rights over all forest lands that forest dwelling
scheduled tribes and other traditional forest dwellers are entitled to:

I.Section 2(i)

2. Section 3(I)(b)

3. Section 3(I) (c)

4.Section 3(I) (d)

5.Sec.3(I)(e)

6.Sec.3(I) (f)

7.Se.3(I) g,

8.Section.3(I) (i), 3(I) (k), 3(I)(l)

CASE LAW:

Orissa Mining Corp Ltd v MOEF, (2013) 6SCC 476 (Niyamgiri Hills case)11

The supreme court in this case disallowed diversion of forest land for mining of
bauxite as it affects the customary and cultural rights of indigenous people, the
court had no hesitation to recognise the need to protect ancient monuments
while development activities were carried out.

 In the present case the Supreme Court found that MOEF rejection of
environmental clearance is reasonable and legal as the clearance affects
the community rights of tribal groups in Niyamgiri Hills. The local
people do have the rights to practice and propagate faith or belief. All
their rituals and observation are regarded as integral part of their religion.
These rights are to be protected12. In this respect, the court pointed Forest
Rights Act coupled with the provisions of Panchayat (Extension to the
Scheduled Areas) Act 1996(‘PESA Act’), where Gram Sabha has a role

11
P.LEELA KRISHNAN, ENVIRONMENTAL LAW, PAGE NO.144.
12
The Apex court went through the provision relating to scheduled areas and tribal areas, PESA Act,
Convention of Biodiversity, the Rio Declaration, UN Declaration on the Rights of the Indigenous people, the
Forest Rights Act, etc and emphasised the authority of the gram sabha to settle their religious claims of the
tribal people before a final decision was made to grant clearance for a mining project.
 in determining the nature and extent of the individual or community
rights as well as any religious rights.
 The court held that if the bauxite mining affects their religious rights,
especially their right to worship their deity known as Niyam-Raja in the
hill-top of Niyamgiri range of hills, that right has to be preserved and
protected.
 The court directed the Gram Sabha to consider this aspect besides all the
community, individual as well as cultural and religious claims in certain
specified regions.
 It was made clear that the proceedings of the Gram Sabha should be
attended as an observer by a judicial officer of the rank of the District
Judge.
 The court also dealt with the objects and reasons enshrined in the Act and
called it a social welfare or a remedial statute.

2. Biological Diversity Act 2002

The idea of conservation of biodiversity has been developed over wide-

ranging efforts at the international level. The world conservation strategy
gave a major policy guidance. However it was the coming into force of the
UN Convention on Biological Diversity (CBD) with more concrete
objectives and greater consensus, which brought about a breakthrough.13

India is a party to the UN Convention on Biological Diversity signed at Rio

de Janeiro on the 5th of June 1992.14

 The Convention on Biological Diversity (CBD) entered into force on

29 December 1993. It has three main objectives:
(1) The conservation of biological diversity.
(2) The sustainable use of the components of biological diversity
(3) The fair and equitable sharing of the benefits arising out of the
utilisation of genetic resources.
 ‘Biological diversity’ was defined as the variability among living
organisms from all sources including, inter alia, terrestrial, marine and
other aquatic ecosystem and the ecological complexes of which they
13
Leelakrishanan , environmental law book, page 108.
14
GURDIP SINGH, ENVIRONMENTAL LAW, PAGE 542.
 are part; this includes diversity within species, between species and of
ecosystem.(Article 2).
 Stressing that all states have the sovereign right to exploit their own
resources, the CBD laid down that all contracting parties should
cooperate for the conservation and sustainable use of biodiversity,
develop national strategies, plan and programmes, identify and
monitor components of biological diversity, and make endeavours for
in-situ and ex-situ conservation.
 Sustainable use was defined as the use of components of biological
diversity in a way and at a rate that did not lead to the long-term
decline of biological diversity, thereby maintaining its potential to
meet the needs and aspirations of present and future generations.
 Although CBD envisages sharing and equitable access to genetic
resources from technologies based upon genetic resources, this is to be
done on mutually agreed terms’. Since there exists huge disparity
between the developed nations and the developing nations, it is
questionable whether the mutually agreed terms can lead to a fair and
equitable access.

Indian legislation on Biodiversity15

India is a party to the CBD and has enacted the Biological Diversity Act
2002(BDA). The following are the thrust areas of the BDA:

(1) Access to biological resources and information

(2) Benefit sharing with conservers of biological resources/creators and
holders of knowledge and information relating to use of biological
resources
(3) Notification of areas important from the stand point of biological
diversity as biological heritage sites.
(4) Protection of threatened species
(5) Involvement of local bodies in sustainable management of biodiversity
and the preparation of biodiversity registers.
(6) Establishment of biodiversity authority, state biodiversity boards and
biodiversity committees at block/village level to implement the
legislation.

15
P.LEELAKRISHNAN, ENV.LAW BOOK, PAGE 111.
 CASE LAW:
Divya Pharmacy v Union of India, High Court of
Uttarakhand, WP 3437/2016, Decided on 21
December 2018.16

 A Single Judge Bench comprising of Sudhanshu Dhulia, J. stated

that Fair and Equitable Benefit Sharing (FEBS) under the
Biodiversity Act, 2002, was welfare legislation that was made
to cater the needs of the local and indigenous communities.
 Divya Pharmacy (of Swami Ramdev), an Ayurveda pharmacy
has challenged an order which calls to share profits with local
and indigenous communities as part of FEBS objectives of the
Biodiversity Act, 2002. It was submitted that the Sections 2(g)
and 3 of the Biodiversity Act states that only foreign entities
using biological resources can be made to share profits/pay
fees under the head of FEBS and only a foreign element
requires permission from the National Biodiversity Authority
before they undertake any activity using biological resources.
Now the question that came before the Court was
whether the State Biodiversity Board could impose
FEBS obligations on the company as part of their
regulatory powers over Indian companies and persons
using such resources. The respondents argued that FEBS
obligations create no distinction between a foreign or an Indian
entity and the equitable sharing of benefits with the local and
indigenous communities was one of its objectives
 The Court considering India’s international commitments took
a broad and purposive interpretation by interpreting the FEBS
definition broadly so that both Indian and foreign entities were
obligated to share benefits with the local and indigenous
communities when a biological resource was exploited. It
pressed upon the fact that when the plain reading defeats the
very purpose of the Act then it is the duty of the Court to
assign a proper meaning to it. The Court also placed its
reliance on Nagoya Protocol which introduced the
concept of FEBS wherein no distinction between foreign
and national entities was made. Accordingly, the petitioner
was bound to comply with the SBB’s direction to share profits
with the local and indigenous communities and consequently,
the petition was dismissed.

16
Available at https://www.scconline.com/blog/post/2018/12/29/biological-resources-are-property-of-nation-
divya-pharmacys-challenge-to-fair-and-equitable-benefit-sharing-dismissed/ last visited on 16 April 2020.
Case law:
T.N.Godavarman Thirumulpad v UOI,(2002)
The SC. Held that the CBD has been acceded to by our country and therefore, it
has to implement the same.

In Centre for Environmental Law, WWF-India v UOI,2013, the supreme

court said:

“ The Parliament enacted the Biological Diversity Act in the year 2002 followed
by National Biodiversity rules in the year 2004. The main objective of the Act is
the conservation of biological diversity, sustainable use of its components and
fair and equitable sharing of the benefits arising out of the utilisation of genetic
resources……”

*******

Best regards, Dr. Stanzin Chostak,dated, 17th April 2020. New Delhi
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