Session 2

INTRODUCTION TO INTERNATIONAL ENVIRONMENTAL LAW

CONTENTS

1. International Environmental Law and Other disciplines

1.1. Introduction
1.2. Linkage of International Environmental Law with other disciplines of law

2. Making and application of International Environmental Law

2.1 Main Sources of International Law
Treaties (or Conventions or Agreements)
Custom
Generally recognised principles of law
Judicial decisions and the work of international jurists
Declarations
Principles
Standards

3. Fundamental Principles governing International Environmental law

3.1. Introduction
3.2. State Sovereignty
3.3. Co-operation
3.4. Preservation and Protection of environment
3.5. Prevention
3.6. Precaution
3.7. The Polluter Pays Principle
3.8. Information and assistance on environmental emergencies

3.9. The Right of Individuals: Equality of Access to Procedures and Nondiscrimination in Environmental Matters

4. Environment Impact Assessment

1. International Environmental Law and other disciplines

1.1. Introduction1
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,

Diwan Shyam (July 12, 2002), International Environmental Law.

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) 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) 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,2 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.3 Moreover, it has been accepted as a fundamental
objective of government policy to abate pollution.4
(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,5 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.
(8) Another recent norm is to invite the input of non-governmental organizations
(NGOs), especially those representing community-based grassroots environmental
2

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.

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.
4

Ministry of Environment and Forests, Government of India, Policy Statement for Abatement of
Pollution para 3.3 (26 February 1992).

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.

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 and the national
conservation policy, 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.6
(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 Court7 as well as the Indian government have recognised the
principle of sustainable development as a basis for balancing ecological
imperatives with developmental goals.
(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
6

Indian Council for Enviro-Legal Action v Union of India (CRZ Notification Case) 1996 (5) SCC
281.

Vellore Citizens' Welfare Forum v Union of India AIR 1996 SC 2715.

regenerative capacity. Do not pollute water at levels that exceed its natural
purification capacity.'
In State of Himachal Pradesh v. Ganesh Wood Products8 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 intergenerational equity. After all, the present generation has no right to deplete all the
existing forests and leave nothing for the next and future generations.'
(11) At the 1982 United Nations Conference on the Law of the Sea (UNCLOS),
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 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
8

AIR 1996 SC 149, 163.

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 19869. 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
9

S. Jagannath v Union of India (Shrimp Culture Case) AIR 1997 SC 811, 844, 846.

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.10
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.11 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 1999,12
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
10

8 1999 (6) SCC 9.

11

9 1999 (6) SCC 12.

12

0 1999 (6) SCC 14

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.
1.2. Linkage of International Environmental Law with other disciplines of
law
One of the main characteristics of environmental law is the necessity for an
interdisciplinary approach. Nowadays interdisciplinary studies are increasingly
necessary in most sciences, where progress can be made only after acquisition and
review of essential data coming from other specialties or other field. This is
especially true in environmental matters, because of the complexity of the subject.
Legislation and the creation of institutions, which are fundamental tasks of law,
require knowledge of data which can be furnished only by sciences representing
several disciplines, including life and earth sciences, as well as social sciences13.
Thus, a chain of biologists, chemists, medical doctors, ecologists, economists,
sociologists and lawyers is needed to elaborate and implement environmental
norms. The tasks will be to ascertain and further develop the knowledge of
environment itself, of its deterioration and of its impact as well as of the possible
remedies. The result of scientific investigation must then be integrated into the
economic, social and cultural context of a given situation. The final decision is
made in the political arena, but without knowing as many possible of the elements
of the problem no useful decision can be taken. The best illustration of this process
is the discovery by scientists of the depletion of the stratospheric ozone layer.
They were the only ones who could state and assess the problem, but the solution,
the building up of a regime for protecting the stratospheric ozone molecules
needed the cooperation of economists, representatives of the world public opinion
and of industry, political decision-makers and, last but not the least, legal experts.
The interdisciplinary character, involving various scientific branches as well as
scientific uncertainty, imposes frequent adaptations upon environmental law.
13

Introduction to International Environmental Law by Professor Alexander Kiss, Course 1, Programme of

training for the Application of Environmental Law, UNITAR

Changes are always a problem for law, one of the objectives of which is to ensure
stability in human relations. New legal methods and techniques have to be applied
in order to keep pace with the general evolution of environmental sciences.
Actors:
Traditional international law only recognized states as actors in international legal
relations. Called subjects of international law, states have the exclusive right to
conclude treaties, to send and receive diplomatic representatives, to give their
nationality to individuals according to rules which they determine, to protect their
nationality abroad, to adhere to international organizations and to assume
international responsibility.
After World War II, a debate began over whether individuals and non-state groups
could also become subjects of international law. The proliferation of international
conventions protecting human rights triggered such debates. According to the
present state of international law, individuals are entitled to have rights which can
be internationally enforced mostly in the framework of specific treaties
guaranteeing their fundamental rights and freedoms and creating specific
enforcement mechanisms.
While traditional rules are formally applied in international legal relations, the
need to protect the environment posed a challenge to international law, and this
has fundamentally changed the system. Most of the major environmental rules
were triggered by public awareness which then pressured governments to adopt
appropriate measures. For example, the public role has been recognized by a
growing number of international institutions which accept the presence of
representatives of certain non-governmental organizations at designated meetings
as observers who can report back to their constituency and who can be authorized
to take the floor.
Particularly important in this regard is Article 19 of the 1994 Convention to
Combat Desertification in those countries experiencing serious drought and
desertification.
Environmental decisions in the domestic field, a well as at the international level,
are not always welcomed by industrialists, farmers, foresters, transporters and
the investors who fund their activities. The beginning of the ecological era was
characterized by the strong resistance of groups representing certain economic
interests. This was starting point for a wave of green products and
advertisements praising the environmental qualities of given products, eventually
leading to environmental labeling.

At the end, one can speak, at least in a certain measure, of cooperation between
these three groups of society. Of course, given the very nature of the biosphere and
of its protection and the web of relationships between populations of the different
countries, such cooperation also appears in the international field. The preparation
of the treaty system for the protection of the stratospheric ozone layer was the best
example in this regard; the whole initiative was strongly backed by public opinion
represented by non-governmental organizations. The preparation of the Rio
Conference amplified such developments: there was a constant pressure of nongovernmental organizations on the negotiators and parallel to the governmental
conference a forum of NGOs was held with the representatives of 1400
associations sometimes helping, sometimes criticizing but taking a growing part in
the international protection of the environment.

2. Making and Application of International Environmental Law

2.1. Introduction
International law includes both the customary rules and usages to which states
have given express or tacit assent and the provisions of ratified treaties and
conventions. International law is directly and strongly influenced, although not
made, by the writings of jurists and publicists, by instructions to diplomatic
agents, by important conventions even when they are not ratified, and by arbitral
awards. The decisions of the International Court of Justice (ICJ) and of certain
national courts, such as prize courts, are considered by some theorists to be a part
of international law. In many modern states, international law is by custom or
statute regarded as part of national or municipal law.
Since there is no sovereign super national body to enforce international law, some
older theorists have denied that it is true law. Nevertheless, international law is
recognized as law in practice, and the sanctions for failing to comply, although
often less direct, are similar to those of municipal law; they include the force of
public opinion, self-help, intervention by third-party states, the sanctions of
international organizations such as the United Nations, and, in the last resort, war.
At the beginning of the ecological era and in particular in the 1970s there was a
general trend towards the development of environmental regulations, which were
considered as the remedy to pollution and to the depletion of the worlds wild flora
and fauna. In 1980s disillusion concerning the effectiveness of legal rules for the
protection of the environment increased, but this did not halt or even slow down
the legislative efforts. In the 1990s with the triumph of the market economy
system, many advanced the view that law is not the adequate tool for protecting
the environment, whether at an international or a domestic level, because of its
ineffectiveness.
Two regional instruments inspired by genuinely ecological perspectives can be
seen as precursors to our present environmental concepts. The first, the 1933
London Convention Relative to the Preservation of Fauna and Flora in their
Natural State, applicable to Africa then largely colonised. It provided for the
creation of national parks and strict protection for some species of wild animals.
The second instrument is the 1940 Washington Convention on Nature Protection
and Wildlife Preservation in Western Hemisphere; which envisages the
establishment of reserves and the protection of wild animals and plants especially
migratory birds.

The legal instruments of International Law are of two kinds, namely, Hard Laws
and Soft Laws:
Hard Law
Hard law is a binding legal instrument. Any legal rule or principle contained in
such kind of an instrument binds a state in its relations with other states. Hard
laws are Legal Instruments which are directly enforceable. They are in form of
legally binding agreements or principles which are directly enforceable by
national and international bodies.
However, hard laws are not necessarily of any relevance in deciding legal
disputes between individuals and the state, such as a judicial review action, or
as between individuals such as in nuisance law. By way of example, the 1992
Convention for the Protection of the Marine Environment of the North East
Atlantic (the OSPAR Convention) requires states to take all possible steps to
prevent and eliminate pollution and, in doing so, to apply the polluter pays
principle. These provisions matter, if at all, only as between the parties to the
Convention. They do not create general obligations of the kind that individuals
can rely on. Nor can they be used as the basis for an action against the state or
a public body.
Soft Law
Unlike Hard Laws, Soft Laws are not legally enforceable instruments of law.
However, they still hold a great significance in the application of International
law since they are Legal Instruments in form of agreements or principles that
are meant to provide a basic guideline for 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.
2.2. Main Sources of International Law
Treaties, Conventions and Agreements
The international conventions are normally concluded in a written form. Treaties
are written agreements between states and international organisations that are a
part of an International Convention. The various terms such as treaties,
conventions and agreements are normally used to denote the same meaning.

Basically, there are two types of treaties:

- Bilateral treaties which are concluded between two States only

- Multilateral treaties concluded between at least three States; the treaties
which have attracted the largest numbers of parties are called universal
treaties.
Initially, the international treaty rules were either part of customary international
law or belonged to the general principles of law. However, today the rules
governing international treaties which are concluded between States in written
form are codified. The basic rules governing codification of treaties was laid down
in the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969.
The Convention was entered into force on 27 January 1980.
Although the Vienna Convention is not applicable to treaties concluded before its
entry into force as per the provisions of Article 4 of the Convention, it is applied
de facto to those too, since it incorporates to a large extent the customary rules
which were already applicable before this date. Moreover, the Vienna Convention
applies only in the absence of other applicable agreements and is therefore of
subsidiary character.
The Fundamental Principles to govern treaties as envisaged under the Vienna
Treaty are as follows:
1. Free Consent
This international principle embodied in paragraph 3 of the Preamble of the
Vienna Convention states that the States may only be bound with their consent,
which is only fully given once the convention has been ratified. This principle is
the corollary of the prohibition of the threat and use of force contained in the
Charter of the United Nations (Article 2 (4)) which legitimates such behaviour
only in specific circumstances. The severance or absence of diplomatic (or
consular) relations between two or more States does not prevent the conclusion of
treaties between those States (Article 74).
According to the principle of free consent, international agreements are binding
upon the parties and solely upon themselves. These parties cannot create either
obligations or rights for third States without their consent. This doctrine is based
on the maxim pacta tertiis nec noncent nec prosunt as contained in Article 34. The
only explicit exception to this rule appears in Article 22 (1) is an expression of the
favor contractus principle and concerns the withdrawal of reservations.
Another important principle which can be deducted from the free consent rule is
expressed by the latin phrase lex posterior derogat legi priori. According to this
rule, a later treaty prevails over an earlier one when two treaties exist which relate

to the same subject-matter (Article 30 paragraph 3). This principle will be dealt
with in the context of treaty amendments.
It is understood that by giving its consent, a State binds itself in respect of its
entire territory and not retroactively, unless a different intention is established
(Articles 28 and 29).
2. Good faith
Good faith is of fundamental importance for the conduct of international relations
in general and is therefore recognized as an international principle according to the
very terms of the Vienna Convention. This is because, if a State does not behave
in good faith, peace and international security, the supreme goals of the Charter of
the United Nations might eventually be put in jeopardy.
Being a subjective element of behaviour, presence or absence of good faith can be
difficult to prove. In the last analysis, good or bad faith can only be found in the
minds of individuals, in particular of those who happen to have an influence on the
conduct of foreign policy and, more specifically, of those whose task it is to
negotiate and implement international conventions (Articles 26, 31 (1) and 62
(2)(b)).
3. Pacta sunt servanda
Paragraph 3 of the Preamble, as well as Article 26 of the Convention, deal with the
doctrine of pacta sunt servanda. The Doctrine implies that, "Every treaty in force
is binding upon the parties to it and must be performed by them in good faith."
4. Clausula rebus sic stantibus
According to this principle as understood in a broad sense, extraordinary
circumstances can lead to the termination of a treaty. These circumstances can
consist either in a material breach of a given treaty by one of the States Parties
(Article 60), in a permanent disappearance of an object indispensable for the
execution of the treaty (Article 61) or in a fundamental change of circumstances
(Article 62, clausula rebus sic stantibus understood in a narrow sense).
A fundamental change of circumstances can also occur in the case of the outbreak
of hostilities between the States Parties (see Article 73). However, this fact cannot
be invoked as a ground for terminating a treaty, if it has been concluded with
regard to the possible outbreak of an armed conflict as in the case of the Geneva
Conventions of 12 August 1949 (Red Cross Conventions) or the Hague
Conventions of 1899 and 1907.

A further extraordinary circumstance foreseen by the Convention is the emergence

of a new peremptory norm of general international law also known as jus cogens..
This circumstance is distinct from those enumerated above by the fact that it is of
normative and not factual nature. The rebus sic stantibus clause can be considered
as an implicit reservation generally affecting the consent expressed by a State to
be bound by a treaty. It seems worthwhile mentionning in this context that
Argentina has made a reservation to Article 62 in which it made plain that she
would not not accept the idea that a fundamental change of circumstances which
has occurred with regard to those existing at the time of the conclusion of a treaty,
and which was not foreseen by the parties, may be invoked as a ground for
terminating or withdrawing from the treaty.
5. Favor contractus
This principle expresses the preference of international treaty law for the
maintenance and the conclusion of treaties over expiry for reasons of form. Hence,
unless the treaty otherwise provides, a multilateral treaty does not terminate by
reason only of he fact that the number of the parties falls below the number
necessary for its entry into force (Article 55).
The Convention also sanctions the prohibition to denounce a treaty or to withdraw
from it, if it does not foresee itself these forms of termination, unless the parties
did not wish for a different solution. Likewise, in order to uphold the validity of
treaties, Article 68 allows parties to revoke at any time before they take effect
notifications or instruments designed to lead to invalidity, even this is done only in
relationship to one single other party.
In practice, however, the most important expression of the favor contractus
principle is contained in the provisions of the Convention concerning reservations.
A reservation has to be accepted implicitely or explicitely by at least one other
State Party, it can be withdrawn at any time without the consent of the State or
States which had accepted it in the first place (Article 22 (1)). This is the only
explicit exception to the free consent principle.
Article 74 also talks about favor contractus principle. This provision clarifies that
the severance or absence of diplomatic or consular relations does not prevent
concerned States to conclude treaties between themselves.
A Protocol also has the same legal force, although it is a sub-agreement to a
treaty, generally used to flesh out or amend the treaty (e.g. the 1997 Kyoto
Protocol contains the carbon emissions reduction that states committed themselves
to agreeing to in the 1992 Framework Convention on Climate Change).

Treaties generally come into force a specified number of days after a certain
number of states have ratified, although the 1992 Climate Change Convention and
1997 Kyoto Protocol, to give two environmental examples, specify a formula
designed to ensure that a core carbon-emitting developed world states must have
ratified. There are several factors which determine how quickly a treaty comes
into force, most importantly the strictness and clarity of the obligations under it.
Ratification usually requires the approval of the legislature. This can delay treaties
from coming into force, or from binding key states. But it does mean that treaties
will only bind a state once the body responsible for enacting legislation to make
the treaty work its approval. This is an important consideration in practice where
the executive and legislature may be controlled by different groupings. But this
may also be relevant where a convention is agreed by a government which then
loses power in an election. However, the success of a treaty will usually depend on
whether key states are parties and have ratified.
Custom
In addition to treaties and other expressed or ratified agreements that create
international law, the International Court of Justice, jurists, the United Nations and
its member states consider customary international law, coupled with general
principles of law, to be primary sources of international law.
Customary international law is created by implicit rather than explicit agreements,
and needs both the practice of states and their conviction that what is done is done
not because of usage but because of some felt legal obligation. There are problems
in ascertaining exactly what the state does, and the problems of identifying
customs in the wider global community. However, customs does offer the
potential for flexibility by its uncertainty, and scope for creative argument to
develop principles of customary international environmental law. Flexibility here
offers possibilities for the development of principles in a way that vagueness
elsewhere cannot, e.g. in more developed areas of law and policy. Many
commentators, for example, assert that a number of the central principles of
environmental law are now established international customary law, at least for
those states that are a party to a sufficient number of the many texts that now make
reference to them
Customary international law is based on natural law, in the belief that the
principles contained are universal and indisputable. The Article 38(1)(b) of the
UN charter acknowledges the existence of customary international law of the
Statute, incorporated into the Charter by article 92 thereof: "The Court, whose
function is to decide in accordance with international law such disputes as are

submitted to it, shall apply... international custom, as evidence of a general

practice accepted as law".
The customary international law must be derived from a clear consensus among
states. It is often exhibited both by widespread conduct and a discernible sense of
obligation, and is expressed through the United Nations bodies.
Customary international law can therefore not be declared by a majority of States
for their own purposes. It can be discerned only through actual widespread
practice. For example, laws of war were long a matter of customary law before
they were codified in the Geneva Conventions and other treaties.
Treaties as custom
Some treaties are the result of codifying existing customary law. While the
purpose is to establish a code of general application, its effectiveness depends
upon the number of states that ratify or accede to the particular convention.
Relatively few such instruments have a sufficient number of parties to be regarded
as international law in their own right.
Most multi-lateral treaties fall short of achieving such a near universal degree of
formal acceptance, and are dependent upon their provisions being regarded as
representing customary international law and, by this indirect route, as binding
upon non-parties.
Generally recognized principles of law
These are of limited scope, and used where no treaty provision or custom can be
utilised. They are mostly used to identify basic principles of procedure on which to
decide particular issues e.g. evidence that is admissible. They should not be
confused with the principles of international environmental law which are
contained either in treaties or which may be distilled from treaties, or principles
inferable from customary international law.
The significance of general principles has undoubtedly been lessened by the
increased intensity of treaty and institutional relations between states.
Nevertheless, certain concepts such as estoppel and equity have been employed in
the adjudication of international disputes. For example, a state that has, by its
conduct, encouraged another state to believe in the existence of a certain legal or
factual situation, and to rely upon that belief, may be estopped from asserting a
contrary situation in its dealings.

However, the principles of estoppel and equity in the international context do not
retain all the connotations as they do under common law. The reference to the
principles as "general" signify that, if rules were to be adapted from municipal
law, they should be at a sufficient level of generality to encompass similar rules
existing in many municipal systems. Principles of municipal law should be
regarded as sources of inspiration rather than as sources of rules of direct
application.
Judicial decisions and the work of international jurists
According to Article 38(1)(d) of the UN Charter, the ICJ is also to apply "judicial
decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law".
Judicial decisions include not just decisions of the International Court of Justice
(ICJ) but also those of regional bodies (e.g. the European Court of Justice) and
national courts. Previous decisions of the ICJ are binding only between the parties
and only as to the case under consideration14, hence their subsidiary nature. They
do not create precedents, although in practice they function in not too dissimilar
way. The dearth of previous case law may help explain why academic writing is
often referred to in international law. The work of jurists is often used to support
dissenting opinions where relatively new ground is being covered. A good
example of this is the Nuclear Tests II case15 where academic opinion about the
requirements of the sustainable development principles was referred to in the
dissenting opinion of Judge Weeramantry.
The decisions of international and municipal courts and the publications of
academics can also be reffered to by the ICJ not as a source of law as such, but as
a means of interpreting the law established in other sources. In practice the ICJ
does not refer to domestic decisions although it does invoke its previous case-law.
There is no rule of stare decisis in international law. This implies that the decision
of the Court has no binding force except between the parties and in respect of that
particular case. Nevertheless, often the Court would refer to its past decisions and
advisory opinions to support its explanation of a present case.
The International Court of Justice often considers the draft Articles on
international law published by the International Law Commission as authoritative
statements on international law. Often they will consider General Assembly
resolutions as indicative of customary international law.
14
15

Article 59, ICJ Statute

New Zealand v. France [1995] ICJ Rep 288

 Declarations
In law, a declaration ordinarily refers to a judement of the court or an award of an
arbitration tribunal is a binding adjudication of the rights or other legal relations of
the parties which does not provide for or order enforcement. Where the declaration
is made by a court, it is usually referred to as a declaratory judgment. Less
commonly, where declaratory relief is awarded by an arbitrartor, it is normally
called a declaratory award. However, declarations of international conferences are
different from a judement or an award.
Declarations of international law are soft laws that are adopted by the parties to a
Convention. These declarations are different from normative recommendations.
They proclaim general guidelines that the States must follow rather than giving a
specific action plan to impliment these guidelines.
Two key documents in international environmental law are the 1992 Rio
Declaration on Environment and Development and Development and its
Stockholm predecessor of 1972. Such declarations perform a number of functions
they consolidate and restate what are already rules of customary international law,
they contribute towards moving principles forward to the status of custom and
they reflect the agreed aspirations of the international community.
A key feature in relation to development of declarations as a source of
International Law have been the Brussels and Lugano Conventions on civil
jurisdiction and judgements relating to members of the Europian Economic Area.
Principles
In addition to hard, binding obligations, treaties may also contain what are
essentially principles. These include principles related to duties owed to future
generations and to the common but differentiated responsibilities and respective
capabilities of the parties. The elaboration of specific principles in the treaty
itself, as opposed to the preamble, is increasingly common. Towards the softer end
of the spectrum, recommendations may embody the germs of principles or even
treaties.
Standards
A standard is usually a formal document that establishes uniform engineering or
technical criteria, methods, processes and practices. A standard can be developed
privately or unilaterally, for example by a corporation, regulatory body, military,
etc. Standards can also be developed by groups such as trade unions, and trade
associations.

International standards can be a useful way to encourage environmentally

beneficial changes in behaviour. There are also some international standards,
however, which may be accorded the status of binding law. Perhaps most
importantly, some non-legislative international standards provide the benchmark
against which international trade restrictions may be justified
Many standards are written as voluntary standards. Interested parties may
participate in the development voluntarily and the use of the finished standard is
voluntary. The use of some standards is mandatory.
Different kinds of standards:

A standard may be written by a government. For example, defence

standard, regulatory body, building code, etc. These de jure standards have
the effect of law.
A private organization or a corporation, etc may write a standard for its
own use. The use of that standard may be mandatory within that
organization. Enforcement is by the organization.
A voluntary standard may be referenced or adopted by a government or
regulatory body. Its use becomes mandatory within the scope of its
referenced use. Enforcement of these standards is by the government.
A voluntary standard may be referenced of adopted by a private
organization or become part of a contract or an internal standard. The
voluntary standard becomes mandatory within the scope of that usage or
contract.

Standards may be in form of public documents, private documents, published

documents, closed and controlled documents, etc.
Annexure: Reference
PRINCIPLES OF INTERNATIONAL TREATY LAW16
Although it is possible to conclude international conventions orally, almost all of
them are concluded in written form.
Originally, the international treaty rules were either part of customary international
law or belonged to the general principles of law; today the rules governing
international treaties which are concluded between States in written form are
codified. The codification governing this legal area is the Vienna Convention on
the Law of Treaties (Vienna Convention) of 1969 which has entered into force on
27 January 1980. Although the Vienna Convention is not applicable to treaties
16

Web Article: http://www.walter.gehr.net/default.html

concluded before its entry into force (Article 4) it is de facto applied to those too,
since it incorporates - at least to a large extent - customary rules which were
already applicable before this date. Moreover, the Vienna Convention applies only
in the absence of other applicable agreements and is therefore of subsidiary
character.
A Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations dating from 1986 has
reproduced the provisions of the Vienna Convention. It reflects to a large extent
international customary law, too; however, it has not yet entered into force.
Finally, a Vienna Convention on Succession of States in respect of Treaties,
concluded in 1978, entered into force in 1996, but since it has been ratified by 15
States only, it cannot be considered as a source of universal international law.
Furthermore, it has hardly had any impact on state practice, the noteworthy
exception being that practice widely follows the rule according to which a
successor State can establish its status as party of a multilateral treaty to which its
predecessor State already belonged through a declaration of succession.
Generally speaking, one can say that customary international law is rather blurred
in this regard.
Basically, two types of treaties are distinguished:
- bilateral treaties which are concluded between two States only
- multilateral treaties concluded between at least three States; the treaties which
have attracted the largest numbers of parties are called universal.
Amongst multilateral treaties, one can distinguish between "open" and "restricted"
treaties. Whereas every State can become a party to the "open" ones, access to the
latter category of treaties is excluded for those States which do not belong to the
original States Parties, unless an agreement to the contrary has been entered into.
Hence, every State can accede to the Vienna Convention (open treaty), but only
the signatory States of the Convention on the Regulation of the Navigation on the
Danube River from 1948 could originally ratify this (restricted) treaty: hence the
accessions of Austria and Germany had to be approved by the original States
Parties in 1960 and 1999, respectively, by way of supplementary agreements with
these two countries.
The Vienna Convention which consists of 85 articles, eight parts and an annex
includes and materializes five fundamental legal principles.

Free consent and good faith (bona fide in Latin) are the leading principles which
ought to be always followed by States in the course of their relations with one
another.
The other major principles which also emanate from the Roman Law tradition
apply in particular:
- either to the conclusion of treaties:
- pacta sunt servanda (a treaty is binding upon the parties)
- or to the interpretation or application of treaties:
- omnia conventio intelligitur rebus sic stantibus (viz. the clausula rebus sic
stantibus according to which a fundamental change of circumstances jeopardizes
the validity of treaties)
- favor contractus (it is better to seek the maintenance rather than the termination
of a treaty)
These five principles will be subject to closer scrutiny on this website and the
application of the two major principles (free consent and good faith) will be the
object of a separate chapter. Of course, the delimitation between these principles
can be vague, but eventually they are mutually supportive of each other.

3. Fundamental Principles governing International Environmental Law

3.1. Introduction
International environmental law includes different sorts of principles. General
principles of law are applicable in all legal systems, such as the principle of good
faith in the execution of obligations imposed by legal rules. Principles of general
international law, such as state sovereignty or the duty to co-operate with other
states apply in all interstate relations. Finally principles which are only concern
international environmental issues, for example the duty to cooperate, while parts
of general international law, are specific to international environmental law.
3.2.

State Sovereignty

State sovereignty is one of the oldest principles of general international law. Its
meaning is that a State has exclusive jurisdiction on its territory. In other terms,
State is the only authority which can adopt obligatory legal rules for its territory,
has the executive power and its tribunals are the only ones competent to judge
litigation.
State territories include not only land but also inland waters within the boundary
of the State, whether there are surface waters- rivers including estuaries and lakesor subsurface waters-underground watersheds. It also includes determined portions
of the sea. Finally, the domain of the states exclusive jurisdiction also included
the atmosphere above its territory and its territorial waters, but the upper limit is
not determined with precision. It is generally accepted that space activities are not
under the jurisdiction of territorial states. The consequence of the exclusive power
of States on their territory is that no other public authority, be it another state or an
intergovernmental organisation, has the right to incentive in the realm of its
exclusive competence.
Some components of the environment raise serious problems for the application of
state sovereignty, since the environment knows no frontier. Migratory species of
wild animals, fish stocks crossing the limits of the territorial sea or of the
exclusive economic zone, but also pollution of the sea, of rivers and lakes and of
the air are not stopped by the limits of territorial jurisdiction. Such situations; lead
to conflicts between sovereign rights which can only b solved by international law.
Treaties to which a state becomes a contracting party also limits its freedom of
action, but such limitations flow from its acceptance of the concerned treaty. At a
general level, every state is now involved in a large web of international treaty
obligations including thousands of treaties, several thousand of which contain
obligations concerning environmental protection. Most of the obligations must be
executed on the territory of the contracting parties: the protection of determined

species of wild fauna and flora, the prohibition of the dumping of certain
substances into rivers, lakes or the sea, the prevention of atmospheric pollution by
adequate constraints imposed upon industries, etc.
3.3. Co-operation
Albeit each sovereign state is free to conduct its external relations according to
what it considers to be its interest, modern international law has developed a
general obligation to cooperate with other in order to resolve problems which
concern the international community. Such obligations results from the very
essence of general international law. The thousands of international treaties are
also based on the recognition of the need to cooperate with other states at different
levels: bilateral, regional or world-wide. The creation of numerous international
institutions also corresponds to the necessity of cooperation. In the field of
environmental protection, international cooperation is necessary to conserve the
environment in its totality, as much for states within their territorial jurisdiction as
for space outside all territorial limits, such as the high seas, Antarctica or the outer
space.
At the regional level cooperation is particularly important for the rational use of
shared resources. In this regard most progress has been made concerning the
protection and use of transboundary watercourses and international lakes. The
contracting parties cooperate on the basis of equality and the reciprocity in order
to develop harmonized policies, programmes and strategies covering the relevant
catchment area or parts thereof.
Finally, the funding of international actions and financial assistance to countries in
the order to allow them to comply with their obligations is an essential part of
cooperation, especially in the relations between industrialised and developing
countries.
3.4.

Preservation and Protection of Environment

The principles of preservation and protection and protection of the environment is

another essential basis of international environmental law. It designates a specific
objective in the framework of an overriding obligation of states to cooperate.
However, although all the international instruments concerning the protection and
the preservation of the environment aim at this objective in specific fields, the
formulation of a general principle creating an overall obligation is exceptional.
The term conservation has a narrower scope, but falls under the heading of
protection. It is generally used in the field of living resources and is based upon
the status quo, mainly demanding maintenance of the conditions necessary doe

continued resource existence. When applied to flora and fauna, conservation was
often carried out establishing optimal sustainable yield, which signifies
exploitation of the resource without exceeding the limits which guarantee the
renewal and thus the sustainability of the stock. A relatively recent concept which
is increasingly used in this field is the favorable state of conservation, based not
on the idea of exploitation and of yield but on that of ensuring conservation of
living resources.
3.5.

Prevention

Experience as well as scientific expertise demonstrates that prevention must be the

Golden Rule for the environment, both for ecological and economic reasons. It is
frequently impossible to remedy environmental injury: the extinction of a species
of flora or fauna, erosion, or even the dumping of long-life pollutants into the sea
create irreversible situations. Even if the damage is reparable, the costs of
rehabilitation are often prohibitive.
The objective of almost all international environmental law instruments is to
prevent environmental deterioration, whether they concern pollution of the sea, of
inland waters, of the atmosphere or the protection of living resourcesThe
preventive approach requires each state to exercise due diligence, which means
to act reasonably and in good faith and to regulate public and private activities
subject to its jurisdiction or control that are possibly harmful to any part of the
environment. The principle does not impose an absolute duty to prevent all harm,
but rather an obligation on each state to prohibit activities that could cause
significant harm to the environment.
3.6.

Precaution

While prevention still remains the general basis for environmental protection
measures, the precautionary principle can be considered as its most developed
form. Like prevention, precaution seeks to avoid environmental harm, but it is to
be applied when the consequences of non-action can be particularly serious or
irreversible, such as large-scale degradation of the environment or the extinction
of a species. However, such concepts are difficult to define and so is scientific
uncertainty, which means that the majority for adopting certain conclusions. Thus,
the policymakers must consider the circumstances of a given situation and decide
which scientific approach is based upon the most credible evidence and most
reliable scientific methodology.
Such development could be seen as a challenge to the important role of scientists
in the protection of the environment. In reality, it is an expansion of the role:
decision-makers must adopt measures based upon a general knowledge of the

environment and the problems its protection raises. As in all environmental

matters, the public must support the decision makers on a particular problem, but
also a general environmental education of the public and of those who take the
formal decision.
3.7. The Polluter Pays Principle
The polluter pays principle holds the polluter who creates an environmental harm
liable to pay compensation and the costs to remedy that harm. This principle was
set out by the OECD as an economic principle and as the most efficient way of
allocating costs of pollution prevention and control measures introduced by the
public authorities in member countries to encourage rational use of scarce
environmental resources and to avoid distortions in international trade and
investment.
The principle obliges the polluter to incorporate the costs of pollution control in its
own costs to internalise then. However, in most cases the polluter will not pay
such costs from its own pocket, he will incorporate them in the price of his
products. This can raise problems in the international trade, since the producers of
countries which have no effective legislation in order to control pollution have a
competitive advantage.
Thus the polluter pays principle can be really applied in a geographic area where
the constraints imposed on the economic actors by environmental legislation-for
instance standards limiting polluting discharges into the water or into the
atmosphere-are the same for everybody, whether there are political frontiers inside
the area or not. Unless the globalisation of free trade leads to the approximation of
national environmental legislation, it is doubtful whether the polluter pays
principle can be considered as a rule of international environmental law and not an
economic objective, the more so, since financial assistance to developing countries
in order to help them to control pollution could also be considered contrary to this
principle.
3.8. Information and Assistance on Environmental Emergencies
The customary duty to notify the environmental crises has developed in a general
fashion as is spelled out more concretely in numerous international treaties. This
obligation derives from certain general and well-known principles, including
elementary considerations of humanity.17 On the basis of analogous
considerations, a duty is imposed to alert states which could be affected of any risk
to their environment.

17

International Court of Justice, Reports, 1949, at. 22.

The duty to give relevant information is particularly important in the case of

nuclear accidents. The Chernobyl catastrophe of April 26, 1986 underlined the
importance of such notification. Each state on whose territory a nuclear accident
occurs must notify other states which are or could be physically affected, of the
accident, its nature, the moment when it occurred and its exact location. The
response to environmental emergencies must be organised to ensure prompt and
effective action, in which notification is only the first step.
3.9. The Rights of Individuals: Equality of Access to Procedures and Non
discrimination in Environmental Matters
States are not only entities to be informed of environmental emergencies and of
planned activities which may have adverse transfrontier effects. In general
framework of the rights of individuals in the field of environmental protection,
rules admitting public participation have developed.
The principle of equality of access contains four elements: informing nonresidents, allowing their participation in decision-making procedures, permitting
the possibility of appeal in case of inadequate application of relevant rules during
the procedures, and providing remedies in case of damage.
One of the main problems of public participation is the definition of those who
should receive information. A distinction should be made between two aspects of
this problem. On the other hand, the question arises which is geographical area in
which residents should be informed, on the other, who should be informed, on the
other, who should be informed in that area. The general rule in this field is that all
those whose interests might be affected should be informed.

4. Environmental Impact Assessment

4.1. Introduction
Environmental Impact Assessment (EIA) is a process that seeks to assess the
environmental consequences of a development project even prior to the setting up
of such a project. EIA is conducted before the practical implementation of a
proposed project.
The International Association for Impact Assesment defines EIA as, it is the
process of identifying, predicting, evaluating and mitigating the biophysical,
social, and other relevant effects of development proposals prior to major
decisions being taken or commitments made.
The purpose of the assessment is to ensure that decision-makers consider
environmental impacts before deciding whether to proceed with new projects. EIA
procedure requires that a developer or a business owner to submit a written
document to a designated agency or a decision making body, describing the
probable future environmental impact of the intended project. The procedure is
normally integrated into the lisencing schemes or land use planning.
Impact implies to the effects caused by a proposed activity on the environment.
The environment here includes flora, fauna, soil, air, water, climate, landscape and
historical monuments or other physical structures or the interaction between these
factors. It also includes the assessment of the impact of the proposed project on the
human health and safety, as well as the effects on the socio-economic conditions
and the cultural heritage resulting from the alterations of these factors.
The process of EIA involves an analysis of the likely effects on the environment,
recording those effects in a report, undertaking a public consultation exercise on
the report, taking into account the comments and the report when making the final
decision and informing the public about that decision afterwards.
In principle, environmental assessment can be undertaken for individual projects
such as a dam, motorway, airport or factory ('Environmental Impact Assessment')
or for plans, programmes and policies ('Strategic Environmental Assessment').
This website provides information on the European Community's laws on
Environmental Impact Assessment of projects and the Environmental Assessment
of certain plans and programmes together with other related information.

4.2. Purpose of EIA

EIA serves several purposes. Apart from assessment of the impact of the proposed
project on the environment, the process of EIA also serves certain other purposes,
a few of which are stated below:
1. It informs the decision makers of the environmental consequences of their
decisions
2. It provides information and possibility of participation for the interested
public
3. It serves to integrate environmental matters into other spheres of decision
making
4. It forms a part of States obligation not to knowingly cause damage to the
environment.
The EIA predicts what a specific action can do to the environment. After an EIA
analysis, the Precautionary Principle and polluter Pays Principle may be applied to
prevent, limit, or require strict liability or insurance coverage to a project, based on
its likely harms.
4.3. EIA in Transboundary Context
The Convention on Environmental Impact Assessmant in a
Transboundry Context
Environmental threats do not respect national borders. Governments having
realized this danger have made several attempts to avert this danger. The primary
step towards achieving this goal is that the governments must notify and consult
each other on all major projects under consideration that might have adverse
environmental impact across borders.
The Convention on Environmental Impact Assessmant in a Transboundry
Context also known as the Espoo Convention is a key step to bringing together
all stakeholders to prevent environmental damage before it occurs. The
Convention was adopted in 1991 and entered into force on 10 September 1997.
The Espoo Convention sets out the obligations of Parties to assess the
environmental impact of certain activities at an early stage of planning. It also lays
down the general obligation of States to notify and consult each other on all major
projects under consideration that are likely to have a significant adverse
environmental impact across boundaries.

The Espoo Convention has till date had three Conference of Parties (COPs).
1. COP 1 Oslo, March 18 to 20, 1998
2. COP 2 Sofia, February 26 to 27, 2001
3. Ex COP (Extraordinary meeting) Kiev, May 21, 2003. - This meeting led
to adoption of the Protocol on Strategic Environmental Assessment.
4. COP 3 Cavtat (Croatia), June 1 to 4, 2004
5. COP 4 Bucharest, from May 19 to 21, 2008
(Refer to the text of the Convention and Protocol annexed to the end.)
EIA in other Conventions
Many provisions of EIA were written into various conventions. Some such
Conventions are listed below:
1. Many provisions of EIA were incorporated in the regional seas
agreement, beginning with the Kuwait Regional Convention for
Cooperation on Protection of Marine Environment from Pollution.
2. United Nations Convention on Law of Seas (UNCLOS) contains an
obligation to assess activities risking significant harm in case of any
marine environment, including marine waters under national
jurisdiction under Article 206.( Annexure 1)
3. Chapter 22 of Agenda 21 provides for conducting EIA in case of
certain planned activity. (Annexure 2)
4. Article 8 (h) of the Statement on Forests proclaims the necessity to
assess environmental impact. (Annexure 3)
5. Article 14 (1) (a) of the Convention on Biological Diversity provides for
EIA in case of both national and international activities. (Annexure 4)

Annexure 1

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

SECTION 4
MONITORING AND ENVIRONMENTAL ASSESSMENT (Article 204 -206)

Article 204 - Monitoring of the risks or effects of pollution

1. States shall, consistent with the rights of other States, endeavor, as far as
practicable, directly or through the competent international organizations, to
observe, measure, evaluate and analyze, by recognized scientific methods, the
risks or effects of pollution of the marine environment.
2. In particular, States shall keep under surveillance the effects of any activities
which they permit or in which they engage in order to determine whether these
activities are likely to pollute the marine environment.
Article 205 - Publication of reports
States shall publish reports of the results obtained pursuant to article 204 or
provide such reports at appropriate intervals to the competent international
organizations, which should make them available to all States.
Article 206 - Assessment of potential effects of activities
When States have reasonable grounds for believing that planned activities
under their jurisdiction or control may cause substantial pollution of or
significant and harmful changes to the marine environment, they shall, as far
as practicable, assess the potential effects of such activities on the marine
environment and shall communicate reports of the results of such assessments
in the manner provided in article 205.

Annexure 2
Agenda 21
Chapter 22:
Safe And Environmentally Sound Management Of Radioactive Wastes

Programme Area
Promoting the safe and environmentally sound management of radioactive
wastes
Basis for action
1. Radioactive wastes are generated in the nuclear fuel cycle as well as in nuclear
applications (the use of radionuclides in medicine, research and industry). The
radiological and safety risk from radioactive wastes varies from very low in shortlived, low-level wastes up to very large for high-level wastes. Annually about
200,000 m3 of low-level and intermediate-level waste and 10,000 m3 of highlevel waste (as well as spent nuclear fuel destined for final disposal) is generated
world wide from nuclear power production. These volumes are increasing as more
nuclear power units are taken into operation, nuclear facilities are decommissioned
and the use of radionuclides increases. The high-level waste contains about 99 per
cent of the radionuclides and thus represents the largest radiological risk. The
waste volumes from nuclear applications are generally much smaller, typically
some tens of cubic metres or less per year and country. However, the activity
concentration, especially in sealed radiation sources, might be high, thus justifying
very stringent radiological protection measures. The growth of waste volumes
should continue to be kept under close review.
2.
The safe and environmentally sound management of radioactive wastes,
including their minimization, transportation and disposal, is important, given their
characteristics. In most countries with a substantial nuclear power programme,
technical and administrative measures have been taken to implement a waste
management system. In many other countries still only in preparation for a
national nuclear programme or having only nuclear applications, such systems are
still needed.

Objective
3. The objective of this programme area is to ensure that radioactive wastes are
safely managed, transported, stored and disposed of, with a view to protecting
human health and the environment, within a wider framework of an interactive
and integrated approach to radioactive waste management and safety.
Activities
(a) Management-related activities
4.States, in cooperation with relevant international organizations, where
appropriate, should:
a. Promote policies and practical measures to minimize and limit, where
appropriate, the generation of radioactive wastes and provide for their safe
processing, conditioning, transportation and disposal;
b. Support efforts within IAEA to develop and promulgate radioactive waste
safety standards or guidelines and codes of practice as an internationally accepted
basis for the safe and environmentally sound management and disposal of
radioactive wastes;
c. Promote safe storage, transportation and disposal of radioactive wastes, as well
as spent radiation sources and spent fuel from nuclear reactors destined for final
disposal, in all countries, in particular in developing countries, by facilitating the
transfer of relevant technologies to those countries and/or the return to the supplier
of radiation sources after their use, in accordance with relevant international
regulations or guidelines;
d. Promote proper planning, including environmental impact assessment where
appropriate, of safe and environmentally sound management of radioactive waste,
including emergency procedures, storage, transportation and disposal, prior to and
after activities that generate such waste.
(b) International and regional cooperation and coordination
5. States, in cooperation with relevant international organizations, where
appropriate, should:
a. Strengthen their efforts to implement the Code of Practice on the Transboundary
Movements of Radioactive Waste and, under the auspices of IAEA, in cooperation
with relevant international organizations dealing with different modes of transport,
keep the question of such movements under active review, including the
desirability of concluding a legally binding instrument;

b. Encourage the London Dumping Convention to expedite work to complete

studies on replacing the current voluntary moratorium on disposal of low-level
radioactive wastes at sea by a ban, taking into account the precautionary approach,
with a view to taking a well informed and timely decision on the issue;
c. Not promote or allow the storage or disposal of high-level, intermediate-level
and low-level radioactive wastes near the marine environment unless they
determine that scientific evidence, consistent with the applicable internationally
agreed principles and guidelines, shows that such storage or disposal poses no
unacceptable risk to people and the marine environment or does not interfere with
other legitimate uses of the sea, making, in the process of consideration,
appropriate use of the concept of the precautionary approach;
d. Not export radioactive wastes to countries that, individually or through
international agreements, prohibit the import of such wastes, such as the
contracting parties to the Bamako Convention on the Ban of the Import into Africa
and the Control of Transboundary Movement of Hazardous Wastes within Africa,
the fourth Lom Convention or other relevant conventions, where such
prohibition is provided for;
e. Respect, in accordance with international law, the decisions, as far as applicable
to them, taken by parties to other relevant regional environmental conventions
dealing with other aspects of safe and environmentally sound management of
radioactive wastes.

Means of implementation
(a) Financing and cost evaluation
6. The costs at the national level of managing and disposing of radioactive wastes
are considerable and will vary, depending on the technology used for disposal.
7. The Conference secretariat has estimated the average total annual cost (19932000) to international organizations to implement the activities of this programme
to be about $8 million. Actual costs and financial terms, including any that are
non-concessional, will depend upon, inter alia, the specific strategies and
programmes Governments decide upon for implementation.
(b) Scientific and technological means
8. States, in cooperation with international organizations, where appropriate,
should:

a. Promote research and development of methods for the safe and environmentally
sound treatment, processing and disposal, including deep geological disposal, of
high-level radioactive waste;
b. Conduct research and assessment programmes concerned with evaluating the
health and environmental impact of radioactive waste disposal.
(c) Capacity-building, including human resource development
9. States, in cooperation with relevant international organizations, should provide,
as appropriate, assistance to developing countries to establish and/or strengthen
radioactive waste management infrastructures, including legislation, organizations,
trained manpower and facilities for the handling, processing, storage and disposal
of wastes generated from nuclear applications.

Annexure 3
Article 8 (h) of the Statement on Forests
8.(a)Efforts should be undertaken towards the greening of the world. All countries,
notably developed countries, should take positive and transparent action towards
reforestation, afforestation and forest conservation, as appropriate.
(b)Efforts to maintain and increase forest cover and forest productivity should be
undertaken in ecologically, economically and socially sound ways through the
rehabilitation, reforestation and re-establishment of trees and forests on
unproductive, degraded and deforested lands, as well as through the management
of existing forest resources.
(c)The implementation of national policies and programmes aimed at forest
management, conservation and sustainable development, particularly in
developing countries, should be supported by international financial and technical
cooperation, including through the private sector, where appropriate.
(d)Sustainable forest management and use should be carried out in accordance
with national development policies and priorities and on the basis of
environmentally sound national guidelines. In the formulation of such guidelines,
account should be taken, as appropriate and if applicable, of relevant
internationally agreed methodologies and criteria.
(e)Forest management should be integrated with management of adjacent areas so
as to maintain ecological balance and sustainable productivity.
(f)National policies and/or legislation aimed at management, conservation and
sustainable development of forests should include the protection of ecologically
viable representative or unique examples of forests, including primary/old-growth
forests, cultural, spiritual, historical, religious and other unique and valued forests
of national importance.
(g)Access to biological resources, including genetic material, shall be with due
regard to the sovereign rights of the countries where the forests are located and to
the sharing on mutually agreed terms of technology and profits from
biotechnology products that are derived from these resources.
(h)National policies should ensure that environmental impact assessments
should be carried out where actions are likely to have significant adverse
impacts on important forest resources, and where such actions are subject to
a decision of a competent national authority.

Annexure 4
Article 14(1): Convention on Biological Diversity
Article 14. Impact Assessment and Minimizing Adverse Impacts
1. Each Contracting Party, as far as possible and as appropriate, shall:
(a) Introduce appropriate procedures requiring environmental impact assessment
of its proposed projects that are likely to have significant adverse effects on
biological diversity with a view to avoiding or minimizing such effects and, where
appropriate, allow for public participation in such procedures;
(b) Introduce appropriate arrangements to ensure that the environmental
consequences of its programmes and policies that are likely to have significant
adverse impacts on biological diversity are duly taken into account;
(c) Promote, on the basis of reciprocity, notification, exchange of information and
consultation on activities under their jurisdiction or control which are likely to
significantly affect adversely the biological diversity of other States or areas
beyond the limits of national jurisdiction, by encouraging the conclusion of
bilateral, regional or multilateral arrangements, as appropriate;
(d) In the case of imminent or grave danger or damage, originating under its
jurisdiction or control, to biological diversity within the area under jurisdiction of
other States or in areas beyond the limits of national jurisdiction, notify
immediately the potentially affected States of such danger or damage, as well as
initiate action to prevent or minimize such danger or damage; and
(e) Promote national arrangements for emergency responses to activities or events,
whether caused naturally or otherwise, which present a grave and imminent danger
to biological diversity and encourage international cooperation to supplement such
national efforts and, where appropriate and agreed by the States or regional
economic integration organizations concerned, to establish joint contingency
plans.
2. The Conference of the Parties shall examine, on the basis of studies to be
carried out, the issue of liability and redress, including restoration and
compensation, for damage to biological diversity, except where such liability is a
purely internal matter.