MODULE- 1 [Nature, Historical Evolution and Development of Environmental Law]

Introduction
The environment is a global concern that transcends national boundaries.
Environmental issues such as climate change, biodiversity loss, and pollution have
far-reaching impacts that require cooperation and coordination among nations. This
realization has led to the emergence and evolution of international environmental
laws, which aim to address these global challenges collectively.
India, as a signatory to various international environmental agreements, has
witnessed significant developments in this field.

Nature of International Environmental Laws

 International environmental laws are a set of legally binding agreements,
protocols, and conventions that govern the interactions between nations
regarding environmental protection and sustainable development.

 These laws recognize that environmental challenges are not confined within
national boundaries and require cooperative efforts to achieve effective
solutions.

 The nature of international environmental laws is characterized by their global

applicability, the principle of common but differentiated responsibilities, and
the recognition of the shared interests of all nations in preserving the
environment for future generations.

Need for International Environmental Laws in India

India, with its vast and diverse natural resources, faces a multitude of
environmental challenges.
 These include air and water pollution, deforestation, soil erosion, and the
depletion of biodiversity. Recognizing the need for a comprehensive framework
to address these issues,
India has actively participated in international environmental lawmaking.
International environmental laws provide India with a platform to collaborate with
other nations, access technical and financial resources, and adopt best practices for
environmental protection. They also ensure that India's efforts are aligned with
global goals and standards, promoting a more sustainable and inclusive approach
to development.

Scope of International Environmental Laws in India

The scope of international environmental laws in India encompasses a wide range
of issues, including climate change, biodiversity conservation, marine pollution,
ozone depletion, and hazardous waste management.
Through its participation in international treaties such as
o the United Nations Framework Convention on Climate Change (UNFCCC),
o the Convention on Biological Diversity (CBD), and
o the Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal,
India has committed itself to addressing these challenges through legal
frameworks and policy measures. The scope also extends to the enforcement and
implementation of international environmental laws within the domestic legal
system of India.

Evolution of International Environmental Laws in India

Pre-Independence Development-
India's engagement with international environmental laws can be traced back to the
pre-independence era.
During this period, the focus was primarily on conservation and protection of
forests, wildlife, and water resources.
o The Indian Forest Act of 1927 was a significant legislative step in this direction,
aiming to regulate and preserve forests.
o The Wildlife Protection Act of 1972 (which was later amended) was another
crucial legislation enacted to safeguard wildlife and their habitats.
These early legal frameworks laid the foundation for India's commitment to
environmental conservation and set the stage for its future engagement in
international environmental lawmaking.

Post-Independence Development-
Following its independence in 1947, India embarked on a journey of socio-
economic development. Environmental concerns gradually gained prominence,
leading to the enactment of several laws and policies to address pollution and
ecological degradation.
o The Water (Prevention and Control of Pollution) Act of 1974 and
o the Air (Prevention and Control of Pollution) Act of 1981
were landmark legislations that aimed to regulate and manage water and air
pollution, ensuring a cleaner and healthier environment for the people. India's
commitment to international environmental laws further strengthened with its
ratification of key international agreements.
 One of the significant milestones in India's engagement with international
environmental laws was the signing and ratification of the United Nations
Framework Convention on Climate Change (UNFCCC) in 1992.

The UNFCCC aimed to stabilize greenhouse gas concentrations in the

atmosphere and prevent dangerous anthropogenic interference with the climate
system. India, as a developing country with a substantial carbon footprint,
recognized the importance of addressing climate change and became a party to
the convention. This commitment was further demonstrated through the
adoption of the Paris Agreement in 2015, where India pledged to reduce its
carbon intensity and increase its renewable energy capacity.

 India's engagement with international environmental laws also extends to

biodiversity conservation. The Convention on Biological Diversity (CBD),
signed by India in 1992, aims to conserve biodiversity, ensure sustainable use of
its components, and promote fair and equitable sharing of benefits arising from
genetic resources. In line with its commitments under the CBD, India has
implemented various measures to protect its rich biodiversity, including the
 establishment of protected areas, biodiversity hotspots, and the adoption of
sustainable resource management practices.

 Furthermore, India has actively participated in international efforts to combat

marine pollution. The country is a signatory to the International Convention for
the Prevention of Pollution from Ships (MARPOL), which sets standards for
the prevention of pollution from ships and regulates the discharge of pollutants
into the marine environment.

 India has also taken steps to address the issue of hazardous waste management
through its participation in the Basel Convention. This convention aims to
control the transboundary movement of hazardous wastes and ensure their
environmentally sound management.

 In recent years, India has placed a greater emphasis on sustainable development

and environmental governance. The country has formulated and implemented
policies and programs that integrate environmental considerations into various
sectors, such as energy, agriculture, and urban planning. India's commitment to
the Sustainable Development Goals (SDGs) further underscores its dedication
to environmental sustainability and inclusive development.

Understanding the Sources of International Environmental Law

International environmental law plays a vital role in addressing global
environmental challenges and promoting sustainable development. It encompasses
a set of rules, principles, and agreements that govern the interactions between
states and the environment. To establish a solid foundation for environmental
protection and conservation, it is crucial to identify and understand the sources of
international environmental law.
Article 38(1) of the Statute of International Court of Justice provides with the
list of sources to be referred by the Court while adjudicating.
These include
- international conventions,
- customs,
- a set of general principles followed by the civilised nations,
 - judicial opinions and precedents of experts and
- academicians for the ascertainment of laws.
Apart from the said sources, newer law-making processes can also be considered to
formulate an opinion of the law.
There are other sources which is unofficial but accepted.
- Decisions or determinations of the organs of international Institutions
- Resolutions of International Conferences
- Decisions of Municipal courts touching International Matters.
Etc.
[These sources are exhaustive so it will not be discussed in this Article.]

Major Sources of International Environmental Law

1. International Conventional Law-
International conventional law, also known as treaty law, is one of the most
important sources of international environmental law.
The term Convention in Article 38 implies any 'convention, treaty, protocol or agreement, etc.'
o Convention is a special type of treaty.
o Treaty is a written agreement between two or more countries.
o Protocol is a method for alteration of a treaty.
‘A treaty is an agreement whereby two or more states establish or seek to establish relationship
between them governed by international law.' -Art.2 of Vienna Convention, 1969
Other subjects of international law such as international organizations can also conclude treaties.
-Art. 3 of Vienna Convention, 1969

 Treaties are formal agreements entered into by states, which outline their rights
and obligations concerning specific environmental issues. The negotiation and
adoption of international environmental treaties involve extensive multilateral
discussions and diplomatic efforts.

 One significant example is the United Nations Framework Convention on

Climate Change (UNFCCC), which aims to combat climate change and its
adverse effects. The UNFCCC establishes the framework for international
 cooperation and sets the stage for subsequent agreements such as the Paris
Agreement.

 These conventions and protocols provide a legal framework for addressing

various environmental concerns, including biodiversity conservation, hazardous
waste management, and ozone layer protection.

2. International Customary Law-

International customary law refers to practices and norms that have been accepted
by states as legally binding over time.
As evidence of a general practice accepted as law;
Two conditions:
1. There should be sufficiently uniform state practice.
2. There should be a belief that such practice is obligatory (opinio Juris).

 Customary law arises from consistent state practice, coupled with a belief in its
legal obligation, known as opinio juris. In the context of international
environmental law, customary law plays a crucial role in filling gaps where
treaty provisions may be lacking or insufficient.
[Opinio juris is a shortened form of the Latin phrase “opinio juris sive necessitatis,” which
means "an opinion of law or necessity."
Opinio juris essentially means that states must act in compliance with the norm not merely
out of convenience, habit, coincidence, or political expediency, but rather out of a sense of
legal obligation.]

 For instance, the principle of "common but differentiated responsibilities" has

gained recognition as a customary norm in international environmental law.
This principle acknowledges that while all states share the responsibility for
environmental protection, developed countries have a greater obligation due to
their historical contributions to environmental degradation and their greater
capacity to address environmental challenges.

 As a member of the international community, India recognizes and adheres to

customary norms that have emerged over time and are widely accepted as
legally binding.
- One notable example of international customary law in the Indian scenario is
the principle of "common but differentiated responsibilities." This principle
acknowledges that states have different capacities and historical
responsibilities in addressing global environmental challenges. It recognizes
that developed countries, due to their historical contributions to
environmental degradation and their greater resources, have a greater
obligation to take action in environmental protection and sustainable
development.

- India has been an active proponent of this principle, emphasizing the need
for developed countries to take the lead in reducing greenhouse gas
emissions and providing financial and technological support to developing
countries. The principle of common but differentiated responsibilities has
been instrumental in shaping India's stance in international climate change
negotiations, where it seeks to ensure equity and fairness in global
environmental governance.

- Moreover, India's commitment to customary norms is evident in its domestic

environmental laws and policies. The Indian legal framework incorporates
international customary law principles, aligning them with national
objectives and priorities.

- For instance, the Environment (Protection) Act, 1986, which serves as a

cornerstone of environmental regulation in India, incorporates the principle
of sustainable development, which is rooted in customary law principles.

- In addition, India's judiciary has played a crucial role in the development of

international customary law through its interpretations and judgments. The
Indian courts often refer to international environmental law principles,
including customary norms, to ensure environmental protection and the
enforcement of environmental rights. These judgments reinforce India's
adherence to customary law and contribute to the evolution of domestic
environmental jurisprudence.

- Furthermore, India actively participates in international forums and

contributes to the development of customary law by engaging in diplomatic
efforts, negotiations, and consensus-building. Through its involvement in
 multilateral environmental agreements and international conferences, India
promotes the recognition and codification of customary norms that reflect its
interests and concerns.

3. Judicial Decisions-
Judicial decisions, particularly those rendered by international courts and tribunals,
contribute significantly to the development of international environmental law.
These decisions interpret and clarify existing legal principles and obligations,
establishing precedents that guide future legal arguments and actions.
 The International Court of Justice (ICJ) has played a vital role in shaping
international environmental law through its judgments and advisory opinions.
For example, in the landmark case of Corfu Channel (United Kingdom v.
Albania), the ICJ highlighted the duty of states to prevent harm to the
environment, emphasizing the importance of environmental protection in
international law.

 Additionally, regional courts and tribunals, such as the European Court of

Justice and the Inter-American Court of Human Rights, have made significant
contributions to environmental jurisprudence within their respective
jurisdictions. These judicial decisions not only help resolve disputes but also
influence the interpretation and application of international environmental law
principles.

4. Scholarly Writings-
Scholarly writings, including academic research, articles, and books, play a crucial
role in shaping and advancing international environmental law. Scholars and
experts in the field contribute to the development of legal principles, identify
emerging issues, and propose innovative solutions.
 Their research and analysis provide insights into the complex interplay between
environmental protection, sustainable development, and legal frameworks.

 Moreover, scholarly writings contribute to the evolution of legal thinking,

helping to bridge gaps in international environmental law and suggesting ways
to address new challenges such as the impacts of emerging technologies and the
protection of biodiversity in the digital age.