International

Developments
NIKITA SAMDARIYA
B.A. LL.B., SLS-H; LL.M., NLU-DELHI
ASSISTANT PROFESSOR
P.S.: PPTs are only teaching aids, indicative of what all has been broadly covered in class. Students are
advised to exhaustively read from authoritative sources, including those provided in the OBE.
 Stockholm Bruntland
Rio Declaration
Conference Commission
Syllabus to
Cover Earth Summit
Plus Five
Kyoto Protocol
Copenhagen
Conference

Further
Cancun Durban
Developments:
Conference Conference
Climate Change

Established India’s
Norms of Int International
Law Obligations
 neither environment
as an integrative
At the beginning ecological concept nor
of the twentieth the biosphere as the
century planetary life-support
system was an object
of public international
concern.
Stages of International EL Development

Stockholm Rio
Pre- 1972 Conference 1972-1992 Declaration Post- 1992
Pre- 1972
20 Century Development
Before 1950s:
Local and regional (trans boundary disputes)

Continuous population growth, over exploitation, better lifestyle:

Newer Scientific Innovations

serious environmental risks w/o any boundary barriers=

matter of international concern
th
Amongst Others:
1900: London Convention: 1933: London Convention:
Convention on Preservation of Convention on Preservation of Flora
Flora and Fauna in Their Natural and Fauna in Their Natural State:
State: Implemented through creating nature
failed parks and species protection
Drawback: no institutional arrangement for administering/
compliance check

WWII (1945) : industrial revolution: advancement of science and technology, unscientific

exploitation of resources
 OTHER
INTERESTING
1962: book Silent Spring by Rachel Carson EVENTS
Negative effects of pesticides on birds and
animals

1968: image called “Earthrise”:

by astronaut William Anders during the
Apollo 8 mission
 Prominent Judicial Decisions
UK v. Albania 1949
(Corfu Channel Case)
US v. Canada 1941
(Trail Smelter’s Case)
Facts: explosion of mines- Corfu
Channel- British warships damaged+
Principle:
killed crew
States: duty to prevent trans-
boundary harm
Principle:
Duty to pay compensation for harm
trans- boundary injuries from
caused
mines in territorial waters: shouldn’t
endanger international navigation.
 France v. Spain 1957
(Lake Lanoux Case)

Facts: Lake Lanoux: Treaty for regulation of water for

Legality of the Threat or Use of Nuclear
common use.
Weapons: Advisory Opinion (1996)
France: diverting water for hydroelectricity project+
w/o prior agreement b/w 2 govts+ doesn’t alter
Recognized:
volume of water entering Spain
 common heritage of mankind
Spain: violates water right u/ Treaty
 intergenerational equity
 precautionary principle
Held: rejected Spain’s plea: no damage to Spain’s
 trusteeship of the earth resources
interest since no breach of Treaty+ even w/o prior
 polluter pays principle etc.
agreement b/w govts

Principle: standing and flowing waters are subject to

the sovereignty of the State where they are located
Legality of the “These principles of
Threat or Use of environmental law thus do
Nuclear Weapons,
Advisory Opinion not depend for their validity
(1996) on treaty provisions. They
are part of customary
international law. They are
part of the sine qua non for
human survival.”
Stockholm Conference
1972
aka UN Conference on Human Environment

1st international
Adopted:
intergovernmental
Stockholm Declaration
conference on environment
Aim: address conflict b/w 26 principles
issues
development and environment Magna Carta on Human
protection Environment
Nature: non- binding:
UNGA created: UNEP no obligations on States to fulfil duties:
UN Environment Programme, only aspiration for a better environment
Nairobi, Kenya central body in charge
1st international intergovernmental of environmental affairs
organization: today
S
T
O
C
K
H Human Centric Sustainable
O
L • P 1: rights and Development
responsibilities to protect • P 5: preserve non-
M • P 2: protect natural renewable resources
environment resources
D • P 15: Human Settlement • P 13: rational
E • P 3: preserve renewable management of
C and Urbanization resources resources
L • P 4: wildlife conservation
A • P 14: rational planning
R
A
T
I
O
N
 Preventive
• P 6: Assimilative Capacity
• P 7: Management of Sea
Pollution
• P 8: Social and Economic
Development
• P 18: Application of
Science
Compensation Rights and
• P 22: Compensation to Responsibilities of
Victims
States
• P 21: exploit own
resources+ don’t cause
damage to environment
of other nations
 Proliferation of int legal instruments: around 1100 by
Effects of 1992
Stockholm Change in focus:
Conference: from trans- boundary pollution to global pollution
problems;
from protecting certain kinds of wildlife to conserving
ecosystems;
from controlling trade across borders to controlling
activities within national borders that threatened the
environment
1972-1992
 Early Pillars of Int Environmental Law
I. 1972 Convention for the Prevention of IV. 1977 Convention on the Prohibition of Military or
Marine Pollution by Dumping of Wastes and any Hostile Use of Environmental Modification
Other Matter, Techniques:
II. 1972 Convention for the Protection of World prohibits use of techniques having severe effects as the means
Cultural and Natural Heritage, of destruction, damage or injury to any other State Party

III. 1973 Convention on International Trade in IV. UNCLOS 1982:

Endangered Species of Wild Fauna and Flora Article 192: states to protect , preserve the marine environment
(CITES):
IV. Ramsar Convention 1971 (wetlands), Nairobi
int cooperation to protect certain species of wild flora Convention 1985 (coastal and marine
and fauna a/ over exploitation through int trade environment) etc.
 Bruntland Commission 1987 (WCED)
Report: Our Common Future
3 parts: (i) common concern (ii) common challenges
(iii) common endeavours
22 principles. Vienna Convention on Protection of Ozone Layer 1985:
Aim: further develop scientific knowledge of ozone layer+
states to provide measures to limit human activities:
adversely affect the ozone layer
Montreal Protocol 1987:
combat the depletion of the ozone layer.
example of successful international cooperation: now believed
that the ozone layer could recover by 2050.
Basel Convention 1989:
control of transboundary movements of hazardous wastes:
reduce generation+ regulate proper disposal
Research Foundation for Science v UOI (2005): directed Union
Govt to bring Hazardous Waste Rules in line w/ Basel Convention.
Rio Declaration
1992
 aka UN Conference on Environment and Development

Earth Summit
(I) Rio Declaration
(II) Agenda 21

Imp Documents
Commemorate; 20th (III) UNFCCC
anniversary of Stockholm
(IV) CBD
Basis: Our Common
Future (V) UNCCD
Thus, Aim= SD
(VI) Forest Principles
 (I) RIO DECLARATION 1992

 Reaffirmed Stockholm
 Proclaimed 27 principles
 (II) AGENDA 21
Adopted at: UNCED Strategies: contain
environment
Non- binding degradation

Action Plan for SD Provides Promote SD

Local Govt: make action

plan Global partnership
Attain SD by 2000 (govts+ NGOs)
(21st Century)
 (III) UNFCCC
UN Framework
Convention on Climate Aim: “stabilise the greenhouse
Change concentration in the atmosphere at a
level that would prevent dangerous
1st int instrument to anthropogenic interference with
address climate change climate system”
 Onus on:
Developed Duties:
Countries
National policies+
 Based on CBDR: Article 3, paragraph 1 Human safety>
corresponding
 Industrialized nations= Source of most past and scientific uncertainty
current GHG: do most to cut emissions
measures= limit
 Annex I countries: OECD nations+ economies in
transition (changing from centrally planned to
market economy: Eg: Russia) Scientific, technological, Educational+ public
 Aim: by 2000, reduce emission to 1990 levels socio- economic awareness
 Support climate change activities in developing research+ cooperation programmes+ training
countries: funding+ technology
 Imp Documents
u/ UNFCCC

Paris
Kyoto Protocol
Agreement
 Kyoto Protocol:
Flows from UNFCCC (Article 17) Obligations on Annex I parties:
Only binds Annex I countries protect and enhance the sinks and reservoirs of
GHGs;
Emission aim: members to reduce GHG emission by 5%,
below 1990 levels promote afforestation and reforestation;
Commitment period: 2008-2012 promotion, research, development and increased
use of new and renewable forms of energy;
Doha Amendment 2012 (COP18)
limit or reduce emission of GHGs including
emission aim: reduce atleast 18% below 1990 levels; methane;
Commitment period: 2013-2020. monitor emissions and keep precise records
 New commitments for Annex I parties; revised list of GHGs
 Establishes flexible market based
mechanism:

International Emission Clean Development

Joint Implementation
Trading/ Carbon Trading Mechanism
(Article 6)
(Article 17) (Article 12)
Thereafter:
Copenhagen Conference (COP 15)
Main Debate:
Developed
Cancun Conference (COP 16)
vs
Developing
Durban Conference (COP 17)

Explained hereafter
 Paris Agreement 2015
Result of COP21 (Paris, 2015)
Legally binding int treaty
Aim: limit global warming to well below 2 degrees
celsius above pre- industrial levels and limit the
temperature to 1.5 degrees Celsius.
Finances : developing countries wrt climate
impacts
Nationally Determined Contributions (NDCs): every cover : created by 2030.
5 years+ updated national plans: reflect highest
possible ambition
India
GHGs emission intensity of its Gross Domestic
Product: be reduced by 33-35% below 2005 levels by
2030;
 40% of India’s power capacity: based on non-fossil
fuel sources;
Additional ‘carbon sink’ of 2.5 to 3 billion tonnes of
CO2 equivalent through additional forest and tree
APDR v SoWB: (2021 order) committed u/ Paris
Agreement to create NDC+ NAPCC follow Paris idea.
 Latest:
COP 26
5 years post Paris
Glasgow, 2021
Observation: not even close to reaching 1.5 degrees
Glasgow Climate Pact:
realized urgency of reducing emissions+ accelerated
actions: nations asked to present stronger national
plans by next year and not 2025;
phase down/ move away from fossil fuels;
better role of developed in helping developing
COP 27
Egypt
Fund addressing “loss and damage” established:
developing countries facing severe damage due to
climate change [details not discussed though: who
will pay the Fund etc.]
Progress made on “Santiago Network on Loss
and Damage”: aim: technical assistance to
developing countries: become fully operational by
COP 28.
US and Paris 2020 EXIT
Agreement

2021 RE-ENTRY
 “differentiated”= problematic. Every agreement
differentiates: thus, don’t group: base it on countries
Criticism of responsibilities, capabilities etc.

CBDR Equal sharing of burden in current times needed

Developing countries: unfair economic advantage+ not
doing enough
Rebuttal:

Developing:
Developed:
Emission ESSENTIAL
Luxury Emission
to survival
 (IV) CBD 1992
Convention on Biological Diversity
AIM
protect biological diversity: common concern
of mankind + important for evolution + for
maintaining the life-sustaining system of the
biosphere
legitimacy to cultural rights of indigenous
people
necessity to preserve TK
OBLIGATIONS:
national strategies and plans for biodiversity
conservation and sustainable use
establish protected areas: spl measures to
conserve biodiversity
develop laws to protect and regulate
threatened species+ their trade
obligation on developed: provide financial
resources to enable developing countries fulfil
obligations
TN CBD and CITES:
Godavarman
v UOI (2012)
shift of emphasis to ecological
rights from environmental rights:

shift from anthro to eco!

 (V) UNCCD 1994
UN Convention to Combat Desertification

Result of direct recommendation only legally binding framework :

in Agenda 21 desertification and the effects of drought.

Aim: protect and restore land:

no degradation to ensure no drought so as to
sustain life
 No other global event ever
About Earth generated such high
Summit
expectations. Certainly, no group
of governments ever made such
a singular commitment to
improving the quality of life of
their citizenry,
POST- 1992
 Earth Summit Plus Five (Rio+5) 1997
Aim: to review global compliance with Summit UNFCCC obligations: CO2 emissions: rising
pledges Witnessed hottest year
Theme: 'From Agenda to Action', CBD obligations: 1,00,000 species
Observation: relatively little has changed for extinguished in 5 years
the better: since 1992 Developed Country Assistance less than
obligations: 1992
Reasons for Failure of Rio:
Slow decision making process:
No democratic accountability+ cant
Agreement of 200 nations for any No financial priority to solve
generate effective public pressure
action
 “Our words have not been matched by deeds”
- Razali Ismail (Malaysia), UNGA President

The Earth Summit+5 objectives: Conclusions:

To revitalize and energize commitments to sustainable
development
To frankly recognize failures and identify reasons why
To recognize achievements and identify actions that will
boost them
To define priorities for the post-97 period
To raise the profile of issues addressed insufficiently by
Rio
governments failed to reach agreement on a joint
political statement about overall direction for
action in the future
However: committed to Rio goals
Frank realizations about failure of Rio+5= new
level of maturity in int system
Will lead to newer, genuine int cooperation
 Copenhagen Conference (COP 15) 2009
UNFCCC: COP15: Copenhagen
Conference: 2009
Sentiments= of extreme prominence: “Hope-
nhagen”
Gathering= 115 world leaders+ over 40k NGOs etc
applied for accreditation= biggest gathering
outside NY HQ
Aims:
ambitious mid-term emission
reductions by developed countries;
clarity on mitigation actions by
major developing countries;
short- and longterm finance; and
governance structures
 Adoption: Copenhagen Accord
Rise in global temperature below 2 degrees above pre- industrial level
Developed vs. Developing (1750)
No consensus= no legally binding treaty Developed: to reduce GHG emissions by 2020
Copenhagen Accord Developing: mitigation measures be taken: based on MRV of developing
 Agreement b/w US and BASIC countries country actions : international finance, technological transfer and
 Non- binding: mere political declaration capacity building will be subjected
 Lots of procedural issues: adoption of Long term and short term financing:
Accord not transparent, not adequately Short: developed- US$30 billion for 2010-12
represented etc.
Long: developed: US$100 billion a year, by 2020= from various sources
 Established: 4
bodies

High Level Panel Copenhagen Green Technology

REDD+ Mechanism
(financing) Climate Fund Mechanism
 Limitations of Copenhagen:
No legally binding instrument
Hopes
Developed: have legally binding agreement:
verifiable wrt developing efforts

No clear objectives to bring below 2 degrees/

stabilizie temperature

Developed: need int rev of industrializing nations

carbon emissions (Eg: China, India)
 Cancun Conference (COP16) 2010
“a failure to come to No legally binding treaty
any agreement in
Cancun would Cancun Agreements
probably spell the end Cancun Adaptation Framework
of the UN as a
negotiating forum for
climate change”
 Highlights:

Guidelines for REDD+ Adaptation

New Green Climate Technology Global temp: below 2
activities: developing Committee and
Fund Mechanism degrees
nations Adaptation Fund

Develop domestic
competences

Adopt clean
technologies
Investment in
Technology
Development
 Commitments be in
India’s Surprising “appropriate legal form”
View Point: and not legally binding
Jairam Ramesh, commitments
MoEF [surprising because flexible in
comparison to our previous
stringent stance]
 Durban Conference (COP 17) 2011
1. Need of legally binding
agreement? Covering all parties!
 India: will undermine equity and
differentiation
 Outcome: launch "a process to develop a
protocol, another legal instrument or an
agreed outcome with legal force“
 No consensus: legally binding treaty
2. Second Commitment Period of
Kyoto
 Kyoto= only legally binding instrument
 2nd phase: laid down emission levels,
commitment period
Comments:
 Victory for developing nations!
 BUT: US refused to ratify, Canada’s blatant
violations, Japan Russia Aus: disinclined; only
EU committed
 3. Setting Green Climate Fund

 Fund: 24 members: developed awa

developing nations
 No clarity: shallow victory:
Who’ll govern (WB, pvt sector: rejected),
who’ll it be accountable to?
 ESTABLISHED
INTERNATIONAL NORMS AND
ENVIRONMENT
 Premptory norm of general int law
 “norms accepted and recognized by int community of States”
Reflect fundamental values of int community

Jus Cogens Jus Cogens No derogation permitted

(ius cogens) Modifiable: subsequent norm

Other rules Erga Omnes Effect

Accepted and Basis: CIL Basis: Treaty

Recognized (most common) provision/ Applicable:
by large general principles
of law/ int non- consenting
majority of nations also!
States decisions/ jurists
 VCLT 1969

Section 53 Section 64 No list/

guidelines on
what constitutes
New peremptory jus cogens!
Defines peremptory
norm vs. existing
norm
treaty= Treaty VOID

Treaty conflicting w/
existing
peremptory= VOID
 Environment and Jus Cogens
No norm of IEL recognized Jutta Brunnée: 4 binding rules of IEL
Reasons: i. prohibition of transfrontier pollution causing serious
damage;
Envi as global issue= Recent phenomena: Sufficient
time= not passed to elevate IEL ii. equitable utilization;
Anthro focus of jus cogens= humanitarian matters iii. duty to provide another state with early information in
emergency situations
Continuous conflict b/w dev vs envi
iv. duty to consult with another state if the conduct of the
Effect: acting state creates a serious risk of damage.
Paucity of literature= court’s also reluctant
Hungary v. Slovakia (1997) :(Hungary's reliance
on envi norms= NOT peremptory norms)
Intertwined w/ “common interest of int community”=
attained peremptory status
 Rely on existing jus cogens and extend to environment.
Eg:

Hope: Prohibition of Prohibition a/

Integrated Human
aggressive use of genocide
Rights Approach
force (ECOCIDE)

Widely accepted CIL:

Principle 21 of Rio:
potential to become/
no harm rule
risen to jus cogens
Sic utero tuo et alienum non laedas
Other Accepted Norms:

RT decent and healthy PPP

Domestic Duty: monitor+ environment
assess domestic conditions+ Precautionary
report internationally (Subash Kumar v. SoBihar,
1991) EIA

SD
Inviting inputs of NGOs CBDR
InterG Equity
(recent addition) (climate change)
Common heritage of Mankind
ECOCIDE or GEOCIDE
 Concept:
Consequences of destroying ecosystems= Ecocide/ Geocide:
apocalyptic: threatening existence of human
civilization+ extinguishing species ‘the commission of a significant act or
series of acts, or omission to act in a
significant instance or series of instances,
which causes or permits ecological
Thus: crime a/ environment= most serious
concern
damage’ that is ‘serious’, ‘threaten[s]
significant interests and values of the
global community, including life, health and
Geocide=
resources vital to both’, and is ‘wasteful’
environmental counterpart of Genocide but
PERMITTED BY LAW
 National Approaches:
Russia: Georgia
Article 358- "Massive destruction of the animal or plant Article 409-"1.Ecocide i.e. contamination of the
kingdoms, contamination of the atmosphere or water atmosphere, soil, water resources, mass destruction of
resources, and also commission of other actions capable fauna or flora, or any other act that could have led to
of causing an ecological catastrophe, shall be punishable an ecological disaster, shall be punished by
by deprivation of liberty for a term of 12 to 20 years.“ imprisonment for a term of twelve to twenty years.
Tajikistan:
Article 400- "Mass destruction of flora and fauna,
poisoning the atmosphere or water resources, as well as
commitment of other actions which may cause ecological
disasters is punishable by imprisonment for a period of
15 to 20 years."
 Criminalization of Ecocide: As 5th Int
Crime u/ Rome Statute
During early stages: lack of clarity on scope of definition of “Ecocide”
June 2021: Stop Ecocide Foundation: definition:
“Ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial
likelihood of severe and either widespread or long-term damage to the environment being caused by
those acts.
Liability proposed: individuals, corporations awa states.

Loopholes in the proposal: many major polluters (US, China, India) not signatories of Rome
Statute
  IPC: water pollution, air pollution, nuisance etc.
 EPA

Ratheesh v. SoKerala (Ker HC, 2011):

India’s POV took note of ecocide+ defined: "the destruction of the aspects of
the environment which enables it to support life".

Chandra CFS and Terminal Operators Pvt. Ltd. v.

Commissioner of Customs (Mad HC, 2015):
Acknowledged ill effects of ecocide in India

Immediate Need: (Vizak gas leak, Oil Spills)

 Conduct JIA
 Accordingly: concrete law criminalizing Ecocide: w/ serious implementation
 Fulfils SD, PPP, PTD, Precautionary, interG Equity, absolute etc.
 INTERNATIONAL
ENVIRONMENTAL LAW AND
GLOBAL ISSUES
 Issue w/ who can be sued:
Int Law as “soft law”:
Consent to being sued in int courts
Issues of non- enforceability in court
(ICJ)
Unenforceability: sovereignty
Only recourse: some form of int
sanction

Non- mention of subject matter

jurisdiction/ int forum:
Recourse: domestic courts
Issues:
 Issue of forum
 Potential conflict/ bias: judges
Issues w/ who can sue: New Int Institutions created:
Only states. Individuals/ NGOs/IOs lack of power to bring enforcement
cannot actions
Issue: causes complexity to sue Eg: CBD- CSD (Committee on SD)

Poverty, Eco- Imperialism, Air Pollution, Ozone Endangered Species,

Global Commons
North South Tensions Depletion, Climate Change Forests
INDIA’S INTERNATIONAL
OBLIGATION