National Law Schoool of India [Printer-friendly version] July 12, 2002 PRECAUTION IN INTERNATIONAL ENVIRONMENTAL LAW: A VIEW FROM INDIA [Rachel's introduction: "Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks."] By Shyam Divan A. INTRODUCTION In international law, a distinction is often made between hard and soft law. Hard international law generally refers to agreements or principles that are directly enforceable by a national or international body. Soft international law refers to agreements or principles that are meant to influence individual nations to respect certain norms or incorporate them into national law. Although these agreements sometimes oblige countries to adopt implementing legislation, they are not usually enforceable on their own in a court. If a treaty or convention does not specify an international forum that has subject matter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member state's domestic court system. This presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation provides for such suits, since the judges who decide the case are residents of the country against which it is brought, potential conflicts of interest arise. Only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice (ICJ), countries must consent to being sued. Thus, it is often impossible to sue a country. The final question in the jurisdictional arena is who may bring a suit. Often, only countries may sue countries. Individual citizens and non-governmental organisations (NGOs) cannot. This has huge repercussions. First, the environmental harm must be large and notorious for a country to notice. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if transboundary harm does exist, the issue of causation, especially in the environmental field, is often impossible to prove with any certainty. The enforcement issue is one where advocates for a safer environment often find themselves stymied. Even if a treaty or convention provides for specific substantive measures to be taken by a country (many treaties merely provide 'frameworks'), specifies a forum for dispute resolution and authorizes sanctions for non-compliance, international law remains largely unenforceable. A country cannot be forced to do what it is not willing to do. One can sanction the country, order damages, restrict trade, or, most frequently, publicize non- compliance. But beyond that, if a country will not comply, there is very little to be done. International institutions are generally not responsible for directly implementing and enforcing international environmental law, but they often play important monitoring, informational and diplomatic roles. For example, the 1992 Convention on the Conservation of Biological Diversity (Biodiversity Convention)(1) created a new international body, the Committee on Sustainable Development (CSD). The CSD lacks the power to bring enforcement actions against either governments or private parties, but it plays a role in implementing the Biodiversity Convention. The CSD helps monitor national compliance efforts by requiring member nations to submit annual reports. Through its meetings and publications, the CSD also provides a forum to discuss and debate issues associated with global protection of biological diversity and forests. B. SOME CORE ISSUES RELATING TO INTERNATIONAL ENVIRONMENTAL LAW Consider for a moment why any law is enacted -- domestically or internationally. Some would maintain that it is a moral statement about behaviour that a society cannot tolerate. Some would argue that certain conduct is outlawed to deter that conduct, which is why we also attach a penalty. Some would argue, especially in light of the inefficiencies in enforcement, that laws socialize society's members to behave in a certain way by defining a code. What is the purpose of international environmental law -- is it a moral statement, a deterrence, or a socializing tool? If it is a moral statement, which many of the framework conventions seem to be, is it merely aspirational? Do we honestly believe that all nations will achieve all the ideals expressed in all the agreements? Or do we, as a global community, simply like to think of ourselves as the kind of people who believe in these things? If it is intended as deterrence, why are there not more international forums for dispute resolution, more international bodies empowered to enforce agreements, more substantive requirements, and more 'hard law' self-executing agreements? If there were, would any nation sign them? If it is intended as a socialization technique, is it working? Are nations more environmentally aware? If ultimately all international environmental law is unenforceable, what good is it? Does it accomplish anything to find a country out of compliance with a treaty? What about publicity? What if the economic benefits of a project such as the Narmada Valley Project, are believed by government officials to outweigh the negative effects of the publicity? The practice of relying on domestic implementing legislation to enforce international environmental agreements leave state parties in the position of having different obligations under the same treaty, depending on how their legislative, executive and judicial bodies interpret and implement the treaty. Is this fair? What about the costs and administrative burdens that are associated with creating and enforcing legislation? Does this put richer countries in a better position to comply with treaties? What is the purpose of the informational roles of international institutions? Will more knowledge about the global environment and our impacts on it lead to better compliance? Or will so many new issues lead to non-compliance due to uncertainty? If it appears to the average citizen that virtually everything she does has a negative environmental impact, will she not cease to try to change any behaviour? C. INDIA'S INTERNATIONAL OBLIGATIONS India has obligations under numerous international treaties and agreements that relate to environmental issues. As a contracting party, India must have ratified a treaty, that is, by adopting it as national law before it came into force, or by acceding to it after it has come into force. For a treaty to enter into force, the requisite number of countries must ratify the treaty, which then has the force of international law. Specific obligations under any treaty vary, depending on the treaty itself. The nature and degree of compliance and implementation depend on a number of factors, among them: (1) the capabilities and staff of an international institution charged with coordinating national compliance efforts, if there is one; (2) the willingness of other state parties to enforce or comply with the treaty; (3) the political agenda of the government and popular support; (4) trade and diplomatic pressures brought to bear by other countries; and (5) sometimes, judicial or NGO involvement through court cases and publicity. INDIA'S TREATY OBLIGATIONS 1. The Antarctic Treaty (Washington, 1959) 402 UNTS 71. Entered into force 23 June 1961. India ratified with qualifications, 19 August 1983. 2. Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar, 1971). 11 I.L.M. 963 (1972). Entered into force 21 December 1975. India acceeded, October 1, 1981. 3. Convention Concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972). 11 I.L.M. 1358 (1972). Entered into force 17 December 1975. India signed, 16 November 1972. 4. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973) 12 I.L.M. 1055 (1973). Entered into force 1 July 1975. India signed, 9 July 9 1974; ratified 20 July 1976. 5. Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL) (London, 1978). Entered into force 2 October 1983. India ratified with qualifications, 24 September 1986. 6. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979) 19 I.L.M. 15 (1980). Entered into force 1 November 1983. India signed, 23 June 1979; ratified 4 May 1982. 7. Convention on the Conservation of Antarctic Marine Living Resources (Canberra, 1980). 19 I.L.M. 841 (1980). Entered into force 7 April 1982. India ratified, 17 June 1985. 8. United Nations Convention on the Law of the Sea (Montego Bay, 1982). 21 I.L.M. 1261 (1982). Entered into force 16 November 1994. India signed, 10 December 1982. 9. Convention for the Protection of the Ozone Layer (Vienna, 1985). 26 I.L.M. 1529 (1987). Entered into force 22 September 1988. India ratified, 18 March 1991. 10. Protocol on Substances That Deplete the Ozone Layer (Montreal, 1987). 26 I.L.M. 1550 (1987). Entered into force 1 January 1989. India acceded, 19 June 1992. 11. Amendments to the Montreal Protocol on Substances That Deplete the Ozone Layer (London, 1990). 30 I.L.M. 541 (1991). Entered into force 10 August 1992. India acceded, 19 June 1992. 12. Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 1989). 28 I.L.M. 657 (1989). Entered into force 5 May 1992. India signed, 5 March 1990; ratified 24 June 1992. 13. United Nations Framework Convention on Climate Change (Rio de Janeiro, 1992). 31 I.L.M. 849 (1992). Entered into force 21 March 1994. India signed, 10 June 1992; ratified 1 November 1993. 14. Convention on Biological Diversity (Rio de Janeiro, 1992). 31 I.L.M. 818 (1992). Entered into force 29 December 1993. India signed, 5 June 1992; ratified 18 February 1994. 15. Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (Paris, 1994). 33 I.L.M 1332 (1994). Entered into force, 26 December 1995; India signed, 14 October 1994; ratified 17 December 1996. 16. International Tropical Timber Agreement (Geneva, 1994). 33 I.L.M. 1016 (1994). Entered into force 1 January 1997. India signed, 17 September 1996. India ratified 17 October 1996. 17. Protocol on Environmental Protection to the Antarctica Treaty (Madrid, 1991). Entered into force 15 January 1998. D. ESTABLISHED NORMS OF INTERNATIONAL ENVIRONMENTAL LAW Norms are general legal principles that are widely accepted. This acceptance is evidenced in a number of ways, such as international agreements, national legislation, domestic and international judicial decisions, and scholarly writings. The leading norms in the field of international environmental law are addressed below: (1) Foremost among these norms is Principle 21 of the 1972 Stockholm Declaration on the Human Environment. Principle 21 maintains that 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".(2) (2) Another widely shared norm is the duty of a state to notify and consult with other states when it undertakes an operation that is likely to harm neighbouring countries' environments, such as the construction of a power plant, which may impair air or water quality in downwind or downstream states. (3) Over and above the duty to notify and consult, a relatively new norm has emerged whereby states are expected to monitor and assess specific environmental conditions domestically, and disclose these conditions in a report to an international agency or international executive body created by an international agreement, and authorised by the parties to the agreement to collect and publicize such information. (4) Another emerging norm is the guarantee in the domestic constitutions, laws or executive pronouncements of several states, including India,(3) Malaysia, Thailand, Indonesia, Singapore and the Philippines, that all citizens have a right to a decent and healthful environment. In the United States, this fundamental right has been guaranteed by a handful of states but not by the federal government. (5) Most industrialized countries subscribe to the polluter pays principle. This means polluters should internalise the costs of their pollution, control it at its source, and pay for its effects, including remedial or cleanup costs, rather than forcing other states or future generations to bear such costs. This principle has been recognized by the Indian Supreme Court as a 'universal' rule to be applied to domestic polluters as well.(4) Moreover, it has been accepted as a fundamental objective of government policy to abate pollution.(5) (6) Another new norm of international environment law is the precautionary principle. This is basically a duty to foresee and assess environmental risks, to warn potential victims of such risks and to behave in ways that prevent or mitigate such risks. In the context of municipal law, Justice Kuldip Singh of the Supreme Court has explained the meaning of this principle in the Vellore Citizens' Welfare Forum Case,(6) which is excerpted later in this section. (7) Environmental impact assessment is another widely accepted norm of international environmental law. Typically, such an assessment balances economic benefits with environmental costs. The logic of such an assessment dictates that before a project is undertaken, its economic benefits must substantially exceed its environmental costs. India has adopted this norm for select projects which are covered under the Environmental Impact Assessment (EIA) regulations introduced in January, 1994.(7) (8) Another recent norm is to invite the input of non-governmental organizations (NGOs), especially those representing community-based grassroots environmental activists. This NGOs participation ensures that the people who are likely to be most directly affected by environmental accords will have a major role in monitoring and otherwise implementing the accord. This principle is mirrored in the Indian government's domestic pollution control policy(8) and the national conservation policy,(9) and is given statutory recognition in the EIA regulations of 1994. The Supreme Court has urged the government to draw upon the resources of NGOs to prevent environmental degradation.(10) (9) In October 1982, the United Nations General Assembly adopted the World Charter for Nature and Principles of Sustainable Development. The agreement expressly recognised the principle of sustainable development, defined as using living resources in a manner that 'does not exceed their natural capacity for regeneration' and using 'natural resources in a manner which ensures the preservation of the species and ecosystems for the benefit of future generations.' The principle of sustainable development was also acknowledged in the 1987 report Our Common Future, published by the United Nations World Commission on Environment and Development. This report defined sustainable development as 'humanity's ability... to ensure that [development] meets the need of the present generation without compromising the ability of future generations to meet their needs.' The Supreme Court(11) as well as the Indian government have recognised the principle of sustainable development as a basis for balancing ecological imperatives with developmental goals.(12) (10) Intergenerational equity is among the newest norms of international environmental law. It can best be understood not so much as a principle, but rather as an argument in favour of sustainable economic development and natural resource use. If present generations continue to consume and deplete resources at unsustainable rates, future generations will suffer the environmental (and economic) consequences. It is our children and grandchildren who will be left without forests (and their carbon retention capacities), without vital and productive agricultural land and without water suitable for drinking or sustaining cultivation or aquatic life. Therefore, we must all undertake to pass on to future generations an environment as intact as the one we inherited from the previous generation. Proponents of intergenerational equity maintain that the present generation has a moral obligation to manage the earth in a manner that will not jeopardize the aesthetic and economic welfare of the generations that follow. From this moral premise flow certain ecological commandments: 'Do not cut down trees faster than they grow back. Do not farm land at levels, or in a manner, that reduce the land's regenerative capacity. Do not pollute water at levels that exceed its natural purification capacity.' In State of Himachal Pradesh v. Ganesh Wood Products(13) the Supreme Court recognized the significance of inter-generational equity and held a government department's approval to establish forest-based industry to be invalid because 'it is contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter- generational equity. After all, the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations.'(14) (11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS),(15) developing countries, led by India, articulated the norm that certain resources, such as the deep seabed, are part of the common heritage of mankind and must be shared by all nations. (12) The 1992 Rio de Janeiro Earth Summit articulated the norm of common but different responsibilities. With regard to global environmental concerns such as global climate change or stratospheric ozone layer depletion, all nations have a shared responsibility, but richer nations are better able than poorer nations to take the financial and technological measures necessary to shoulder the responsibility. E.JUS COGENS, HEALTHFUL ENVIRONMENT, SUSTAINABLE DEVELOPMENT As mentioned, norms of customary international law evolve through custom and usage. Not all norms are of equal importance however, some being accorded the status of fundamental norms. The category of fundamental norms comes under the doctrine of jus cogens, or the doctrine of peremptory norms. The 1969 Vienna Convention on the Law of Treaties(16) serves to clarify the concept in Article 53 as follows: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The doctrine of jus cogens is extremely limited and extends to only a handful of norms, the most long-standing of which are the prohibitions against the slave trade, piracy and genocide. Many scholars also believe that the norm expressed in Principle 21 of the Stockholm Convention has risen to jus cogens status. Principle 21 is based on the Roman maxim, sic utero tuo et alienum non laedas, which roughly means 'do not behave in a way that hurts your neighbour.' However, again the question arises, what good does an international peremptory norm, like an international agreement, achieve? Consider some of the other norms addressed above, such as the right to a healthful environment. Is there to be one standard by which all environments are judged, or is it a relative concept? If cutting down trees for firewood destroys the environment, but provides life- sustaining fuel, which right will prevail? Which right should prevail? How much weight does each of the two rights carry when the concept of intergenerational equity is introduced? When considering moral ideals such as the principles of a common heritage and intergenerational equity, what incentives do countries have to try to mould their practices to achieve these ideals? How can countries be better motivated? Is saving the environment for its own sake going to appeal to the majority of people, or does there have to be a more direct benefit, like the idea that we may, by destroying an ecosystem, inadvertently destroy the cure for cancer? What exactly is 'sustainable development'? What is 'sustainable'? Could not intelligent and informed people differ over whether producing more minerals or preserving a landscape is sustainable. If so, which is more important? And what is 'development'? Factories that employ thousands, give a country more industry with which to compete in the world market, but discharge effluents into the water and produce piles of hazardous waste. Do some countries have more of a right to development and less of an obligation to ensure sustainability and vice versa? How much more do industrialised nations need to develop? Have they not gone far enough? Who is to judge? F. EXTRACTS FROM VELLORE CASE At the end of a judicial career, Justice Kuldip Singh of the Supreme Court issued comprehensive directions to clean up the mess created by the leather tanneries of Tamil Nadu. In the following excerpt from this leading case, Justice Singh borrowed international law norms and applied them to the local milieu. VELLORE CITIZENS' WELFARE FORUM v. UNION OF INDIA AIR 1996 SC 2715 KULDIP SINGH, J.: * * * The traditional concept that development and ecology are opposed to each other, is no longer acceptable. 'Sustainable Development' is the answer. In the International sphere 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway Ms.G.H.Brundtland and as such the report is popularly known as "Brundtland Report". In 1991 the World Conservation Union, United Nations Environment Programme and World Wide Fund for Nature, jointly came out with a document called 'Caring for the Earth' which is a strategy for sustainable living. Finally, came the Earth Summit held in June, 1992 at Rio which saw the largest gathering of world leaders ever in the history -- deliberating and chalking out a blue print for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two conventions, one on biological diversity and another on climate change. These conventions was signed by 153 nations. The delegates also approved by consensus three non-binding documents namely, a Statement on Forestry Principles, a declaration of principles on environmental policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution. During the two decades from Stockholm to Rio 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. 'Sustainable Development' as defined by the Brundtland Report means 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalized by the International Law Jurists. Some of the salient principles of 'Sustainable Development', culled- out from Brundtland Report and other international documents, are inter-generational equity; use and conservation of natural resources; environmental protection; the precautionary principle; polluter pays principle; obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries. We are, however, of the view that 'the precautionary principle' and 'the polluter pays' principle are essential features of 'Sustainable Development'. The 'precautionary principle'-- in the context of the municipal law - means: (i) Environmental measures -- by the State Government and the statutory authorities -- must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The 'Onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign. 'The polluter pays' principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action vs. Union of India (The Bichhri Case), 1996 (3) SCC 212. The Court observed, 'We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country'. The Court ruled that 'Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on'. Consequently the polluting industries are 'Absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas'. The 'polluter pays' principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. [Remedying] the damaged environment is part of the process of 'Sustainable Development' and as such [the] polluter is liable to pay the cost to the individual [who] suffers as well as the cost of reversing the damaged ecology. [The court then set out the provision of the Constitution as well as the Water Act, Air Act and Environment (Protection) Act]. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. For support we may refer to Justice H.R.Khanna's opinion in Addl. Distt. Magistrate Jabalpur vs. Shivakant Shukla (AIR 1976 SC 1207), Jolly George Verghese's case (AIR 1980 SC 470) and Gramophone Company's case (AIR 1984 SC 667). The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. [The court proceeded to quote a paragraph from Blackstone's commentaries on the Laws of England (1876) in respect of 'nuisance']. Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land. G. CONSTITUTIONAL PROVISIONS RELATING TO INDIA'S INTERNATIONAL OBLIGATIONS Article 51(c) of the Constitution sets out a Directive Principle requiring the state to foster respect for international law and treaty obligations. Article 253 of the Constitution empowers Parliament to make laws implementing India's international obligations as well as any decision made at an international conference, association or other body. Article 253 states : 'Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body'. Entry 13 of the Union List covers : 'Participation in international conferences, associations and other bodies and implementing of decisions made thereat.' In view of the broad range of issues addressed by international conventions, conferences, treaties and agreements, Article 253 read with Entry 13 apparently gives Parliament the power to enact laws on virtually any entry contained in the State List. Parliament has used its power under Article 253 read with Entry 13 of the Union List to enact the Air (Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986.(17)7 The preambles to both laws state that these Acts were passed to implement the decisions reached at the United Nations Conference on the Human Environment held at Stockholm in 1972. At the conference, members of the United Nations agreed to work to preserve the world's natural resources, and called on each country to carry out this goal. The broad language of Article 253 suggests that in the wake of the Stockholm Conference in 1972, Parliament has the power to legislate on all matters linked to the preservation of natural resources. Parliament's use of Article 253 to enact the Air Act and Environment Act confirms this view. H. ADOPTING OVERSEAS NORMS The Supreme Court has occasionally looked at pollution standards abroad to strengthen local environmental regulation. This is illustrated by the Motor Vehicle Pollution case filed by Mr. M.C. Mehta in the Supreme Court. On April 16, 1999, the Supreme Court targetted diesel vehicles, which were blamed for more than 90 per cent of the Nitrogen Oxide and respirable particulate matter (RSPM) in Delhi's air. Noting that the California Air Resource Board had on 27 August 1998 formally designated diesel particulate as a toxic air contaminant, and the amicus curiae's request to suspend the registration of diesel vehicles in Delhi, the court adjourned the case to April 29, 1999 to consider submissions on the issue.(18)8 On the adjourned date a bench headed by Chief Justice A. S. Anand imposed super norms for vehicles registered in the National Capital Region (NCR), which 'appeared appropriate' to the bench.(19)9 The court required all private vehicles registered after 1 June 1999 to conform to Euro I norms and those registered after 1 April 2000 to meet the Euro II norms. Diesel taxi's were prohibited in the NCR unless they conformed to Euro II norms. The Euro norms are European Community standards that have been enforced across Europe. On 13 May 1999,(20)0 the court clarified that what it meant by the 'Euro I norms' were the India 2000 norms, notified by the Central Government on 28 August 1997. In other words, the court advanced the statutory emission norms that were to come into effect on 1 April 2000 to 1 June 1999; and introduced more stringent emission standards (Euro II) with effect from 1 April 2000. The Euro II norms were re-christened 'Bharat Stage II' standards by the Central Government and were notified through the Central Motor Vehicles (Third Amendment) Rules of 2000. I. GLOBAL ENVIRONMENTAL GROUPS An emerging trend in India is the impact of Global NGOs in influencing domestic environmental law and policy. This is not an entirely new development, since the assistance of say IUCN in helping the local groups campaigning against the Silent Valley project is well documented. Greenpeace reports played a role in prompting the Supreme Court of India to clamp down on the import of hazardous waste into the country for recycling. It was only pursuant to directions issued by the Supreme Court in the public interest litigation, Research Foundation for Science, Technology and Natural Resource Policy v. Union of India that the import of hazardous waste was banned. Likewise, a petition has been recently filed in the Calcutta High Court relating to the adverse environmental impact of PVC. This petition too relies heavily on a report prepared by Greenpeace. Global NGOs are attempting to spur governments into adopting local regulations on the basis of environmental standards and norms that have been invoked in jurisdictions elsewhere. 1. 1 Reprinted in 31 I.L.M. 818 (1992) and P.Birnie and A.Boyle, Basic Documents on International Law and Environment 390 (1995). 2. 2 Emphasis supplied. Reprinted in P.Birnie and A.Boyle, id. at 1. 3. 3 The fundamental right to life guaranteed under Article 21 of the Indian Constitution has been interpreted by the Supreme Court to include the right to a wholesome environment. Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 424. 4. 4 The Bichhri Case (Indian Council for Enviro-Legal Action v. Union of India), AIR 1996 SC 1446; and Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715. 5. 5 Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of Pollution para 3.3 (26 February 1992). 6. 6 Supra note 4. In A.P. Pollution Control Board v Prof. M.V. Nayudu AIR 1999 SC 812 the Supreme Court traced the development of the precautionary principle. 7. 7 The EIA regulations are extensively dealt with in the Large Projects chapter. 8. 8 Supra note 5, at para 11.1. 9. 9 Ministry of Environment and Forests, Government of India, National Conservation Strategy and Policy Statement on Environment and Development para 8.7 (June, 1992). 10. 10 Indian Council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC 281. 11. 11 Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC 2715. 12. 12 Supra note 9, at paras 1.1, 1.3. 13. 13 AIR 1996 SC 149, 163. Also see CRZ Notification Case, Supra note 10, where the court expressed its concern at the adverse ecological effects which will have to be borne by future generations. 14. 14 Id. 15. 15 Reprinted in 21 I.L.M. 1261 (1982). 16. 16 Reprinted in 8 I.L.M. 679 (1969). 17. 1 7 S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997 SC 811, 844, 846. 18. 18 1999 (6) SCC 9. 19. 19 1999 (6) SCC 12. 20. 20 1999 (6) SCC 14.