Environmental Law and Policy

ADNAN KHAN
Advocate High Court
Lecturer in Law, Bahria Uinversity
 History and Development of Environmental Law

• The History and Development of Environmental

law can be grouped into four phases.
▫ Phase-I: Development of Environmental law principle.

▫ Environmental law principle have been developed in the 20th

century.

▫ A basic principle to environmental controversies and disputes.

That nations should NOT permit action within its territorial
jurisdiction to harm the interest of other states.
 L. Oppenheim said;
“ A state is, in spite of its territorial supremacy, not
allowed to alter the natural conditions of its own
territory to the disadvantage of the natural conditions
of the territory of the neighbor state……..”

In the incident of “Corfu Channel” in Adriatic Sea, in which

ALBANIA was held responsible for environmental pollution
in neighbouring countries… Held by ICJ.
 Trail Smelter Case, 1937
• The Consolidated Mining and Smelting company of
CANADA operated Zinc and lead Smelter along with 10
miles, north of International boundary from US.
• In period from 1925-1935 US government complained
CANADA of SO2 emission in Columbia river in 30 miles
stretch from international boundary to Kettle Falls.
• The two governments resorted twice to legal arbitration from
1928-1931 and 1935-41. Damages were paid to state of
Washington twicely. Last decision to conclude its operation for
at least 18 months.
• US concerned about SO2 emission for harming three main
industries in area of LOGGING, FARMING and CATTLE
GRAZING.
• Some species were affected like Yellow pines, Douglas firs,
larch and Cedar. Wheat and Oats were also affected.
 Background
• In 1896, Smelter plant located in Trial in American
Ownership.

• In 1906 Consolidated Mining and Smelting Company of

CANADA bought this plant and expanded plant to Zinc
Smelt Zinc and Lead Ores.

• In 1925 and 1927, two larges, 400 foot smoke Stacks were
built which resulting increase in SULFUR emission. The
emission was doubled from 1924.

• In 1924, 4700 Ton per month… 1927, 9000 ton.

• Harm noticed from Washington. One Ton Sulfur= 2 ton SO2

which is detected through rain.
 Background
• In 1928-1935 US lodged Complaints to Canada of SO2
emission in Trail. In 1928, issue referred to IJC-UC for
settlement. (Decision: Should limit emission and should pay
compensation of 350,000 US $)
• Despite IJC-UC decision, the Trail Smelter did not improve.
Re-filed complaint in 1933 which led to emission convention
by two in 1935. Tribunal called for 4 questions.
• 1. Had damage been done to Washington state by the smelter since
January 1, 1932?
• 2. If the smelter was found to have done damage, should it be made refrain
from doing so in the future?
• 3. Should the smelter operates under any restrictions?
• 4. Should any compensation be paid in light of the answers to
questions 2 and 3?
• Tribunal informed both govts. Final decision on Q.1 and
acquire more time to answer the 3 questions. Restriction
placed to STUDY the effects of SO2 emissions till 1938-40.
• Q.1 decided that CANADA should pay US, 78,000 $ for
damages of Trail Smelter. Damage to LAND.

• Tribunal decided that US not displayed enough evidences for

damage to livestock or business related.

• Final 3 questions on 1941. Trial Smelter SHOULD REFRAIN

from causing any future damage to USA.
• Tribunal Declared:
• “Under the principle of international law, as well as of the law of the US,
no state has the right to use or permit the use of its territory on such a
manner as to cause injury by FUMES in or to the territory of another or the
properties of persons therein, when the case is of serious consequences and
the injury is established by clear and convincing evidence.”

• It mandated that Smelter maintain equipment to measure wind

velocity, direction, turbulence, atmospheric pressure, SO2
concentration at trial.
• Reading of equipments to keep SO2 low or below level
determined by Tribunal. Copies of reading will be supplied to
both governments MONTHLY. Violation will lead to
compensation would by CANADA.
 Phase II: Recognition of EL liability principle as the
principle of International law by UN
• IEL liability principle was established in 1941 in “Trial
Smelter Case”.
• Emerged awareness about rapidly damage environment.
• UN in 1945. Pay no attention to Environment.
• Then awareness and led to creation of new laws,
regulation and even government agencies on various
levels.
• Stockholm Declaration 1972 started practices of IEL
declarations and Action plans.
 Phase II: Recognition of EL liability principle as the principle
of International law by UN
• The conference is major landmark in efforts of nations to
protect life and support base on earth. Stockholm agenda
was divided in six main areas:

1. Planning and management of human settlement for

environmental quality.
2. Environmental aspects of natural resources management.
3. Identification and control of pollutants and nuisance of broad
international significance.
4. Educational, informational, social and cultural aspects of
environmental issues
5. Development and Environment
6. International organizational implications of actions
proposals.
 Conference focus on 4 main issues in addition to
Educational and Organizational matter.
• Human Settlement
• Natural Resources
• Pollution
• The conflict or balance between development and
environment.
 Principles of Stockholm Declaration.
• Man has fundamental rights to freedom, equality and adequate
condition of life. Quality environment which permit dignified
life.

• Principle 6
▫ “The discharge of toxic substances, or other substances and the
release of heat, in such quantities and concentrations as to exceed
the capacity of environment to render them harmless, must be
bring to an end in order to ensure that serious or irreversible
damage is not inflicted upon ecosystem.”

▫ The principles create new relationship of rights and

responsibilities among developed and developing states.
Such principles are useful for controlling problem of global
environmental damage.
 Principles of Stockholm Declaration.

• Principle 7: State shall take all possible steps to prevent pollution.

• Principle 21: State have sovereign rights to exploit their own
resources and responsibility to control environmental damage.
• Principle 22: State to develop international standards regarding
liability and compensation for victims. Other ecological damage.
• Principle 103 and 107 address compensation.

States were reluctant to incorporate principles of

Stockholm Declaration, 1972 as part of their laws. But
after series of environmental damage incidents during
70 and 80s;
 Principles of Stockholm Declaration.
• Love Canal Incident (Which led to the creation of the US
Superfund regime).
• Nuclear Canal accident at Three Mile Island (Pennsylvania,
USA)
• Chernobyl (Ukraine)
• Union Carbide’s Bhopal Plant accident (India)
• Exxon Valdez Oil Spill (Alaska), and
• Piper Alpha Platform accident (North Sea, UK)
Forced national leaders to take real action.

After Stockholm, different nations adopted various declaration

etc that seek to build a global partnership that protect the
environment and integrates conservation and development.
 Phase III:1992 Earth Summit and its Follow-up

• The phase is awakening of CONSCIOUSNESS of national

leaders, politicians and policy-makers that environmentalism
is force to consider.
• Having significant effect upon public concern about
government policies.
• National laws were globalised by adoption of various
international treaties signed as a follow-up the Earth summit in
Rio de Janerio, Brazil, 1992
 The Rio Declaration on Environment and Development

• Declaration an attempt to set out fundamental principles

concerning environmental issues and economic development
in coming decades.
• All states want to co-operate to conserve and protect Earth’s
ecosystem, but developed world were forced to accept
responsibility on account of its pollution record and advanced
technology.
• Governments adopted Agenda 21: A global action plan for
Sustainable development. Over 50,000 delegates from 179
countries attended this conference.
• Agenda 21 broke new ground in integrating environmental,
economic and social concerns into a single policy framework.
 The Rio Declaration on Environment and Development
• Contained 2,500 recommendations for action and certain
proposals on how to reduce wasteful consumption patterns,
protect atmosphere, ocean and biodiversity. This action has
TEST OF TIME.
Some Treaties after eve of Earth Summit:
• UN framework Convention on Climate Change.
• Convention on Biological Diversity.
• UN Framework Convention on Desertification.
• Convention on Long Range Trans-boundary Pollution.
• Convention on Prevention of Marine Pollution by Dumping of
Wastes and Other Matters.
• Convention on International Trade in Endangered Species.
• UN Convention on the Law of Sea.
• Basel Convention on the Control of Trans-boundary
Movements of Hazardous Wastes and Their Disposal.
Kyoto Protocol to the United Nations Framework Convention on
Climate Change, 1997

• Kyoto Conference in 1997 to further implement Agenda 21.

Salient features of Kyoto Protocol were:
1. Developing States would face certain emission limits as
compared to developed states.
2. Some developed countries could increase emission, e.g.
Australia.
3. USA succeeded in writing a trade clause allowing countries
under their limits for greenhouse gas emissions to sell extra
capacity to the countries, which have reached the limit.
4. EU bowed to US pressure and agreed to lower limits than
proposed.
 The Environment and WTO

• Emphasis was increased in trade policies in the environmental

perspectives. After URUGUAY round in 1994 trade ministers
of WTO begin work in the trade and environment.
• Established committee– environment and sustainable
development issues in mainstream of WTO.
• Environmental provisions in the WTO:
1. GATT article 20: Policies affecting trade in goods for
protecting human, animal or plant life or health are exempt
from normal GATT disciplines under certain conditions.
2. explicit recognition of environmental objectives.
3. Agriculture: Environmental programs are exempt from cuts
in subsidies.
 The Environment and WTO
• Environment in Intellectual property: Government can
refuse to issue patents that threaten human, animal or
plant life or health. (TRIPS art 27)
 WTO and Environmental Agreements
• More than 200 MEAs (outside of WTO)
• About 20 MEAs which can ban trade of certain countries in
certain circumstances. These are;

• Montreal Protocol for the Protection of Ozone layer.

• Basel Convention on the Trade or Transportation of hazardous waste across
international border.
• Convention on International Trade in Endangered Species (CITES).
 Phase IV: 2002 Johannesburg Summit and its Implications
To develop EL’s the business community and
Environmental NGO’s realized that PARTNERSHIP and
DIALOGUE is main solution of environmental issues.
Industry must improve.

World Summit on Sustainable Development in 2002

• Theme of Summit to promote action to address some of
most pressing concerns of poverty and Environment.
Some commitments were made for better Environment.
• To halve proportion of people who are facing
environmental issues like clean water, sanitation,
phasing out of toxic chemicals.
 Water and Sanitation issue
• COMMITMENT:
• To match the proportion of people having less access to
SAFE DRINKING WATER and SANITATION.

• INITIATIVES:
• US announced $970 millions investment in three years
on Water and Sanitation.
• EU announced Water for life primarily in Africa and
Central Asia. ADB $ 5 million grant to UN habitat.
• UN has received 21 other water and sanitation initiatives
with at least $20 million in extra resources.
 Energy issue
COMMITMENTS:

INITIATIVES:
 Health and Agriculture
COMMITMENTS:

INITIATIVES:
 Biodiversity and Ecosystem Management

COMMITMENTS:

INITIATIVES:
IEL Regulations Applicable to the Petroleum Industry
Key International Treaties
▫ Geneva Convention, 1958(details)
▫ 1972 London Dumping Convention
▫ 1973/78 MARPOL
▫ 1982 Law of the Sea Convention.
▫ 1992 Climate Change Convention. (details)
▫ 1992 Biodiversity Convention (details)
Major Regional Agreements
▫ 1972 Oslo Convention and the 1992 OSPAR Convention
▫ 1994 Energy Charter Treaty (ECT)
▫ UNEP Regional Seas Program
▫ Stockholm Declaration 1972 and Principle 21 of this.
▫ Rio Declaration
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