International

Environment law
project

Submitted to: Submitted by:

Mr. Ajay Raj Singh Varun Solshe (5131)

Yash Tiwari (5138)
Stuti Sharma (5169)
Semester 8, Sec. E
B.A L.L.B(H)
2015-2020
 ACKNOWLEDGEMENT

It is my genuine pleasure to express our deep sense of thanks and gratitude to my mentor and
guide Mr. Ajay Raj Singh

His dedication and keen interest and above all his helping attitude has been solely
responsible for completion of my work.
SUSTAINABLE DEVELOPMENT

Sustainable development (SD) is a pattern of resource use that aims to meet human
needs while preserving the environment so that these needs can be met not only in the
present, but also for generations to come. The term was used by the Brundtland
Commission which coined what has become the most often-quoted definition of
sustainable development as development that "meets the needs of the present without
compromising the ability of future generations to meet their own needs.

Development which seeks to produce sustainable economic growth while ensuring

future generations' ability to do the same by not exceeding the regenerative capacity of the
nature. In other words, it's trying to protect the environment.

By the year 2010, our agriculture, fisheries and forestry, and indeed all forms of
development need to become sustainable. Even though we do not know what this
sustainability will precisely look like, we need to commit ourselves in realizing it.

This will require many changes, including new forms of land management, the
creation of new products, services and technology, new forms of consumer behavior and
the addressing of third world debt problems so that developing countries will be able to
afford to be part of the solution rather than part of the problem.

Schemes of Sustainable Development

Seven Dimensions of Sustainable Development

From the Philippine perspective sustainable development is a multidimensional

concept, involving no less than seven dimensions. Sustainable development is viewed as the
mutually beneficial interaction between the legitimate interests of business and the
economy, government and the polity, and civil society and culture. However, these societal
interactions do not exist in a vacuum. On the physical and material side, society is bounded
by the carrying capacity of the varied ecosystems, landscape ecology, and ultimately the
biosphere of the earth, of Nature. On the psychological and spiritual side, the threefold
functional differentiation of society is contextualized by the caring capacity of individuals.
 From this perspective, five dimensions of sustainable development are clearly visible.
These are—the human being, culture, polity, economy, and Nature. However, to this five,
we need to consider society as a separate dimension. Society can be understood as the
integrative result of interactions of the different activities in culture, polity, and the
economy. The population issue, for example, is a development issue that can only be
addressed from a societal perspective, not just from culture alone, or the economy alone, or
polity alone.

Seven Dimensions of Sustainable Development

One must not confuse the societal dimension with the individual dimension.
Ontologically, in the physical world, only individuals exist as such. Society, in effect, is an
idea. Society is a cognitive construct arising from an individual’s or several individual’s
perception of the differing patterns of interactions among human beings. It is within this
context that the whole debate between Western and Asian values, between rights versus
community and responsibility, can be understood. It is also within this context that the
harmonious integration between human and social development is to be achieved.

With society, we therefore have the six dimensions of sustainable development

before us. But these six are not enough. We need to add a seventh that pervades all the
other dimensions. This seventh is the dimension of Spirit. Unless we see and explicitly
acknowledge the spiritual in nature, human beings, and society in our framework of
development, we can never do justice to the strong sense of Philippine spirituality that
permeates Philippine Agenda 21 (PA21).

These seven dimensions of sustainable development are the keys to understand the
structure and substance of PA21. The definition, vision, principles, and parameters of the
Principles of Unity as well as the Action Agenda of PA21 are all basically drawn out from the
key concerns of these seven dimensions of sustainable development.

Philippine Council for Sustainable Development (PCSD) – National council created in 1992
to fulfill the Philippine commitments to the 1992 Earth Summit. The Philippines was the first
country to establish its national council for sustainable development (NCSD) to expand,
concretize and operationalize sustainable development at the national level. PCSD currently
has representation from government, business/labor and civil society.

The International Institute for Sustainable Development The International Institute for
Sustainable Development (IISD) is a Canadian-based, public policy research institute that
has a long history of conducting cutting-edge research into sustainable development. Vision:
Better living for all sustainably. Mission: To champion innovation, enabling societies to live
sustainably
Role: promotes the transition toward a sustainable future; we seek to demonstrate how
human ingenuity can be applied to improve the well-being of the environment, economy
and society.

The United Nations Environment Programme Division of Technology, Industry and

Economics To provide leadership and encourage partnership in caring for the environment
by inspiring, informing, and enabling nations and peoples to improve their quality of life
without compromising that of future generations.

The World Business Council for Sustainable Development is a coalition of 122 international
companies committed to the environment and to the principles of economic growth and
sustainable development. The World Business Council for Sustainable Development
(WBCSD) is a CEO-led, global association of some 200 companies dealing exclusively with
business and sustainable development. The Council provides a platform for companies to
explore sustainable development, share knowledge, experiences and best practices, and to
advocate business positions on these issues in a variety of forums, working with
governments, non-governmental and intergovernmental organizations. Members are drawn
from more than 30 countries and 20 major industrial sectors. The Council also benefits from
a global network of some 60 national and regional business councils and regional partners.
The Councils objectives are to:

 Be a leading business advocate on sustainable development;

 Participate in policy development to create the right framework conditions for
business to make an effective contribution to sustainable human progress;
 Develop and promote the business case for sustainable development;
 Demonstrate the business contribution to sustainable development solutions and
share leading edge practices among members;
 Contribute to a sustainable future for developing nations and nations in transition.
United Nations Sustainable Development.

Mission

The Division for Sustainable Development (DSD) provides leadership and is an authoritative
source of expertise within the United Nations system on sustainable development. It
promotes sustainable development as the substantive secretariat to the UN Commission on
Sustainable Development (CSD) and through technical cooperation and capacity building at
international, regional and national levels. The context for the Division's work is the
implementation of Agenda 21, the Johannesburg Plan of Implementation and the Barbados
Programme of Action for Sustainable Development of Small Island Developing States.

Goal

 Integration of the social, economic and environmental dimensions of sustainable

development in policy-making at international, regional and national levels;
 Wide-spread adoption of an integrated, cross-sectoral and broadly participatory
approach to sustainable development;
 Measurable progress in the implementation of the goals and targets of the
Johannesburg Plan of Implementation.

Priority Activities for the Division to Achieve These Goals

 Facilitate intergovernmental negotiations, consensus-building and decision-making

through the provision of substantive support to the work of the CSD and other
related bodies;
 Provide technical assistance, expert advice and capacity building to support
developing countries and countries with economies in transition in their efforts to
achieve sustainable development;
 Facilitate inter-agency and inter-organizational cooperation, exchange and sharing of
information, and catalyze joint activities and partnerships within the United Nations
system and with other international organizations, governments and civil society
groups in support of sustainable development;
 Promote and facilitate monitoring and evaluation of, and reporting on, the
implementation of sustainable development at the national, regional and
international levels;
 Undertake in-depth strategic analyses to provide policy advice to the USG/DESA, UN
system and intergovernmental fora focusing on cross-cutting and emerging
sustainable development issues.

The Earth Council is an international non-governmental organization (NGO) that was

created in September 1992 to promote and advance the implementation of the Earth
Summit agreements. Information is provided on the background, programs and structure
ofthe Earth Council.

Earth Council Alliance (ECA) supports Earth Councils and other people and organizations
committed to sustainability initiatives and preserving the world for today’s peoples and
future generations. As an international organization, we are a non-government organization
(NGO) incorporated in Switzerland. ECA supports autonomous Earth Councils founded
during the last decade in with the goal of accelerating progress in achieving sustainability
goals as they are framed in the Earth Charter, Agenda 21, and the United Nations
Millennium Development Goals. Recognizing its international character and scope, ECA is
being incorporated as a Swiss foundation in Geneva, and has established offices in San
Diego, California, and Beijing, Peoples Republic of China.

Our goal is to foster increased awareness of sustainability achievements, problems and

pragmatic solutions around the world. Our programs are designed to optimize access and
cooperation across sectors, issues, and regions to deploy best practices. We seek to provide
a platform for leaders at the grassroots and national levels to work together in solving
problems and seizing opportunities outside the confines of traditional bureaucracies. With a
clear understanding of the environmental challenges faced by present and future
generations, the ECA will foster a global culture of active communication and collaboration
among multiple constituencies and sectors.

The International Development Research Centre is a public corporation created by the

Canadian government to help communities in the developing world find solutions to social,
economic, and environmental problems through research

The International Development Research Centre (IDRC) is a Crown corporation created by

the Parliament of Canada in 1970 to help developing countries use science and technology
to find practical, long-term solutions to the social, economic, and environmental problems
they face. Our support is directed toward creating a local research community whose work
will build healthier, more equitable, and more prosperous societies.

The International Council for Local Environmental Initiatives ICLEI - Local Governments for
Sustainability is an association of over 1200 local government Members who are committed
to sustainable development. Our Members come from 70 different countries and represent
more than 569,885,000 people.

ICLEI is an international association of local governments as well as national and regional

local government organizations who have made a commitment to sustainable development.
Polluter pays principle
In environmental law, the polluter pays principle is enacted to make the party responsible
for producing pollution responsible for paying for the damage done to the natural
environment. It is regarded as a regional custom because of the strong support it has
received in most Organisation for Economic Co-operation and Development (OECD) and
European Union countries. It is a fundamental principle in US environmental law.

History

According to the French historian of the environment Jean-Baptiste Fressoz, financial

compensation (not named "polluter pays principle" at that time) is already the regulation
principle of pollution favoured by industrials in the nineteenth century. He wrote that: "This
principle, which is now offered as a new solution, actually accompanied the process of
industrialisation, and was intended by the manufacturers themselves."

Applications in environmental law

The polluter pays principle underpins environmental policy such as an eco tax, which, if
enacted by government, deters and essentially reduces greenhouse gas emissions. This
principle is based on the fact that as much as pollution is unavoidable, the person or
industry that is responsible for the pollution must pay some money for the rehabilitation of
the polluted environment.

View of the Indian Judiciary

The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of the
Environmental Law regime is evident from the judgments passed.

Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212

The Court held 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.
Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647

The Court interpreted the meaning of the Polluter Pays Principle as the absolute liability for
harm to the environment extends not only to compensate the victims of the pollution but
also the cost of restoring the environmental degradation. Remediation of 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 sufferers as well as the cost of reversing the damaged
ecology."

The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086

The Court laid down that an enterprise engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of persons working in the
factory and to those residing in the surrounding areas, owes an absolute and non-delegable
duty to the community to ensure that no harm results to any one on account of hazardous
or inherently dangerous nature of the activity which it has undertaken. The enterprise is
absolutely liable to compensate for such harm and irrespective of all reasonable care taken
on his account. The larger and more prosperous the enterprise, greater must be the amount
of the compensation payable for the harm caused on account of an accident in the carrying
on of the hazardous or inherently dangerous activity by the enterprise.

M. C. Mehta vs Kamal Nath & Ors (1997)1SCC388

The Court held that pollution is a civil wrong and is a tort committed against the community
as a whole. Thus, any person guilty of causing pollution has to pay damages (compensation)
for restoration of the environment and ecology. Under the Polluter Pays Principle, it is not
the role of Government to meet the costs involved in either prevention of such damage, or
in carrying out remedial action, because the effect of this would be to shift the financial
burden of the pollution incident to the taxpayer.

Conclusion

Although the Polluter Pays Principle has helped to mitigate the damage being caused to the
environment to some extent, the provision remains an inadequate remedy as ambiguity
persists regarding clear identification of the actual polluter. The polluter may a part of the
"production chain" and it is difficult to impose the liability on such polluter when the courts
consider the parameters of extent and contribution of causing pollution.

Moreover, under this principal, the amount of compensation to be charged for the
restoration of the damage caused to the environment remains to be inadequate in
comparison to the loss actually caused.
More effective and unambiguous provisions with regards to the implementation of the
Polluter Pays Principle would be beneficial in the longer run.

The content of this article is intended to provide a general guide to the subject matter.
Specialist advice should be sought about your specific circumstances.

Limitations of polluter pays principle

The US Environmental Protection Agency (EPA) has observed that the polluter pays principle
has typically not been fully implemented in US laws and programs. For example, drinking
water and sewage treatment services are subsidized and there are limited mechanisms in
place to fully assess polluters for treatment costs.

In international environmental law

In international environmental law it is mentioned in the principle 16 of the Rio Declaration

on Environment and Development of 1992.
DOCTRINE OF PUBLIC TRUST
INTRODUCTION

The doctrine of public trust has evolved over the years to emerge as one of the core
principles for the judiciary to substantiate the legitimacy of governmental action that
interferes with the use by the general public of natural resources. The incorporation of this
doctrine into our legal system has resulted in the imposition of a much required check upon
governmental authorities who seek to divest State control over such natural resources in
favour of private parties. Though the origin of the doctrine can be traced to ancient times
and it is of considerable vintage in the United States, its application in the Indian legal
system is a modern development.

Scope and History of Doctrine of Public Trust

The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of his
Institutes, Emperor Justinian proclaims: By the law of nature these things are common to
mankind—the air, running water, the sea, and consequently the shores of the sea. No one,
therefore, is forbidden to approach the seashore.

The public trust doctrine “is based on the notion that the public holds inviolable rights in
certain lands and resources, and that regardless of title ownership”, and that “the state
retains certain rights in such lands and resources in trust for the public. ”This conception of
public rights has two ancient bases. “First, under Roman law the air, running water, the sea,
and consequently the sea shore’ were the property of no man but rather were common to
all.” “Second, early English common law provided that title to tidelands had two
components”: “the King’s right ofjus privatum, which could be alienated, and the jus
publicum rights of navigation and fishing, which were held by the King in inalienable trust
for the public”.

Various Public properties; including rivers, the seashore, and the air, are held by the
government in trusteeship for the uninterrupted use of the public. The Sovereign could not
make clandestine transfer of public trust properties which the public had a right to enjoy to
any private parties if such transfer when effected could interfere with the interest of the
public at large.
Concerted efforts have been adopted to incorporate this doctrine to protect an array of
public properties like non traversable waters, public land, and sand parks and to relate it to
both public and private lands. The Supreme Court of California in its celebrated decision in
Illinois Central R.R. Co. v Illinois has broadened the definition of public trust by including
ecological and aesthetic considerations. It would be incorrect to say that public trusts
doctrine is not without its fair share of disapproval. However despite the staunch criticism it
is being increasingly related to sustainable development, the precautionary principle and
bio-diversity protection and a host of other new environmental law principles. The doctrine
links the right of public access to public trusts with a precondition of accountability while
making decisive decisions on such resources. Additionally, not only can the doctrine be put
to use for the protection of public from improper application of planning law but also faulty
environmental impact assessment.

Doctrine of Public Trust and United Nations

The Stockholm Declaration of United Nations on Human Environment clearly indicates this
determining proposition: “The natural resources of the earth, including the air, water, land,
flora and fauna and especially representative samples of natural system, must be
safeguarded for the benefit of present and future generations through careful planning or
management, as appropriate…“

The Doctrine can also be used to influence policy debates and public scoping sessions and
hearings. Through this influence, agencies can be forced to prove that their actions are not
harmful to the environment to that extent that they will result in the destruction of a public
resource. If the agencies fall short of providing a more environmentally benign alternative,
then a Public Trust law suit can be brought up. Such actions often lead to long and arduous
law suits but fortunately many important precedents in this regard have been established.

The doctrine of Public Trust in the Indian Legal system

The watershed as far as the doctrine of public trust in India came about after the decision of
the Supreme Court in the M.C Mehta v. Kamal Nath case.
M.C Mehta v. Kamal Nath

Justice Kuldip Singh while delivering the judgment relied extensively on the doctrine of
public trust. The case dealt with certain forest land which was given on lease to the Motel
by the state government situated at the bank of River Beas. The area which was ecologically
fragile and full of scenic beauty should not have been permitted to be converted into
private ownership and for commercial gains.

The Judge touched up the history of the doctrine of public trust. He pointed out that the
this ancient Roman Empire legal theory came about on the idea that certain common
properties such as rivers, seashore, forests and air were held by the government in
trusteeship for the free and unimpeded use of the general public. The contemporary
concern about the environment bears a very close conceptual relationship to this legal
doctrine. Under the Roman law these resources were either owned by no one (Res Nullius)
or by everyone in common. Under the English law however the sovereign could own these
resources but the ownership was limited in nature and the crown could not grant these
properties to private owners if the effect was to interfere with the public interest in
navigation or fishing.

The Supreme Court pointed out that our legal system is based on the English common law
which in turn includes the doctrine of public trust intrinsic to its jurisprudence. The State is
the trustee of all natural resources which are by nature meant for the use and enjoyment of
the general public. Public at large is the beneficiary of the seashore, running waters, airs
forests and ecologically fragile lands they have the right to access and enjoyment of such
resources. The state is the trustee to such public resources and consequently it is under a
legal duty to protect the natural resources. These resources meant for pubic use cannot be
converted into private ownership.

The court also pointed out that if there is a law made by the Parliament or the State
legislature the courts can serve as an instrument of determining the legislative intent in the
exercise of its powers of judicial review under the Constitution.

The court directed and ordered that the public trust doctrine is a part of the law of the land
and that the prior approval granted to the government to lease the forest land for the
creation of the motel is quashed and that the government of Himachal Pradesh shall take
over the areas and restore it to its original natural conditions.
Significantly the court also ordered that the motel shall pay compensation by way of cost for
the restitution of the environment and ecology of the area. The court also asked the motel
to show cause as to why pollution fine in addition be not imposed on the motel.

The second case to deal with on this subject is Th. Majra Singh v Indian Oil Corporation
where the petitioner objected to the setting of a plant for filling LPG cylinders. The court
reconfirmed that the public trust doctrine ‘has grown from article 21 of the constitution and
has become part of the Indian legal thought process for quite a long time.’

M.I Builders v. Radhey Shyam Sahu

The third case and perhaps one of the decisive case to deal with in this regard is,M.I.
Builders v Radhey Shyam Sahu, where the Supreme Court has applied the public trust
doctrine.

The appeal was directed against the judgment of a Division Bench of the High Court of
Judicature at Allahabad. By a common judgment in three writ petitions, High Court speaking
through Shobha Dixit, J. held that the decision of the Lucknow Nagar Mahapalika
(‘Mahapalika’ for short), also now called Nagar Nigam or Corporation, permitting M.I.
Builders Pvt. Ltd. (the appellant herein) to construct underground shopping complex in the
Jhandewala Park situated, Lucknow, was illegal, arbitrary and unconstitutional. Writ of
mandamus was issued to the Mahapalika to restore back the park in its original position
within a period of three months from the date of the judgment and till that was done, to
take adequate safety measures and to provide necessary safeguard and protection to the
public, users of the park. High Court had noticed that the fact that the park was of historical
importance was not denied by the Mahapalika and also the fact that perseverance or
maintenance of the park was necessary from the environmental angle and that the only
reason advanced by the Mahapalika for construction of the underground commercial
complex was to ease the congestion in area. On taking notice of the ground situations the
court said that the public purpose, which is alleged to be served by construction of the
underground commercial complex, seemed totally illusory.

On Appeal the court held that the facts and circumstances when examined point to only
one conclusion that the purpose of constructing the underground shopping complex was a
mere pretext and the dominant purpose was to favour the M.I. Builders to earn huge
profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the
congested area on the spacious plea of decongesting the area Mahapalika and its officers
forgot their duty towards the citizens and acted in a most brazen manner. By allowing the
construction Mahapalika had deprived its residents as also others of the quality of life to
which they were entitled to under the Constitution and the Act. The agreement smacks of
arbitrariness, unfairness and favourtism. The agreement was opposed to public policy. It
was not in public interest. Whole process of law was subverted to benefit the builder.
PRICAUTIONARY PRINCIPLE

The precautionary principle states that if there is risk of severe damage to humans and/or
the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a
reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional
reactive wait-and-see approach to environmental protection. When there is uncertainty
regarding the impacts of an activity, the precautionary principle advocates action to
anticipate and avert environmental harm.

Article 3 of the UN Framework Convention on Climate Change was just one in a long list of
international agreements that contained the precautionary principle, making it one of the
most popular legal concepts in international environmental law today. Whereas traditional
regulatory practices are reactive, precautionary measures are preventive and pre-emptive.
In its simplest form, the precautionary principle (also known as PP) provides that if there is a
risk of severe damage to humans and/or the environment, absence of incontrovertible,
conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-
sorry approach, in contrast with the traditional reactive wait-and-see approach to
environmental protection.

Often available scientific evidence provides us cause for concern but does not give
conclusive information. In such scenarios, risk assessment compels us to strike a balance
between the need to protect health and environment on one hand and the foregone
advantages of strict restrictions that may turn out to be unwarranted. It is in this context the
role for precautionary principle (PP) emerges. While deciding the need and timing of the
application of the PP, it is important to clearly understand the principle and its
consequences.

Origin of the Precautionary Principle

In his address to the Parliamentary Earth Summit of the UN Conference on Environment and
Development, the Dalai Lama of Tibet noted that “in the seventeenth century, [Tibetan
leadership] began enacting decrees to protect the environment and so we may have been
one of the first nations to [enforce] environmental regulations!” The Theravada scriptures of
Buddhism provide the earliest written sources which could accommodate the concept of
precaution. Theravada teaches not to commit harm, the Buddha urging his followers to
refrain from ‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’.
Undeniably, the origin of the concept of precaution may well be found in the history of
civilization. In the early stage of civilization, humans had a holistic attitude towards nature
which was regarded with sacred veneration. Nature was revered as the provider of life and
therefore exploitation of its generosity was considered unethical. Subsequently, nature’s
mystery was unravelled by the teachings of monotheistic religions and corresponding
developments in science. This elevated the status of humans above the environment. The
regard to human life became primordial and gave humans the right to exploit nature
without ethical limitation. The struggle to survive and protect human health led to the early
use of the concept of precaution.

It has been suggested that the earliest formulation of the precautionary principle in
contemporary public policy can be traced in the early 1950s under the guise of what was
then called “safe minimum standard of conservation.” Major environmental issues of the
1960s– the case of DDT (dichloro diphenyl trichloroethane) — led environmentalists and
policy makers to rethink their approach to specifically address uncertainties. This paved the
way in the 1970s for the establishment of the precautionary principle as a reaction to “the
limitations of public policies based on a notion of ‘assimilative capacity,’ i.e. that humans
and the environment can tolerate a certain amount of contamination or disturbance, and
that this amount can be calculated and controlled”.

In the mid-1970s, West Germany’s legislature enacted a national environmental policy

which provided for precautionary approach to environmental protection[v]. Termed as
Vorsorgeprinzip, the precautionary principle is considered to be the most important
principle of German environmental policy.

Concept and Definition

The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. An
alternative translation of this word would mean ‘foresight principle’ – which could have
given an active and positive impression, as against the reactive and perhaps negative
connotation attached with precaution. Though the principle had its roots in the German
environmental policy, it has entered the centre-stage of the global environmental policy in
the past two-and-half decades with several global environmental treaties invoking the PP
for decision making. In simple terms, the PP conveys the common-sense based advice – to
err on the side of caution. The principle intends to prevent harm to humans, environment,
and eco-system at large. Before looking at some of the widely used definitions of the PP, it
would be helpful to understand the context and rationale.

When the impacts of a particular activity – such as emission of hazardous substances – are
not completely clear, the general presumption is to let the activities go ahead until the
uncertainty is resolved completely. The PP counters such general presumptions. When there
is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and
avert environmental harm. Thus, the PP favours monitoring, preventing and/or mitigating
uncertain potential threats.

There two widely referred definitions of the PP – the first one, The Rio Declaration (or
Agenda 21) of 1992, states that:

“In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.”

This definition given primarily with environmental issues in focus is also extended to cover
health issues. The second definition is based on 1998 Wingspread Statement on the
Precautionary Principle and it states:

“…When an activity raises threats of harm to human health or the environment,

precautionary measures should be taken even if some cause and effect relationships are not
fully established scientifically. The process of applying the precautionary principle must be
open, informed and democratic and must include potentially affected parties. It must also
involve an examination of the full range of alternatives, including no action. In this context
the proponent of an activity, rather than the public, should bear the burden of proof.”

It is interesting to note the differences between the two definitions. The first one stresses
on ‘serious or irreversible damage’, whereas the second one states that precaution is
relevant to ‘harm’ in general. Thus the second definition is typical of the way in which the
precautionary principle is used by environmental advocacy groups. Some of the other key
features of the definition worth noting include:

Lack of full scientific certainty shall not be used as a reason for postponing: Though
scientific uncertainty may not be used for any delay in action, this leaves scope for citing
reasons such as poverty reduction priorities for postponing the actions.

Cost effective measures: Though scientific uncertainty about the likely impacts prevails,
stress on cost-effectiveness compels assessment (however accurate they may be) of costs of
proposed actions and compare it with possible alternatives.

Applied by states according to their capabilities: The capabilities of states, including

economic and technical capabilities, could guide the final adoption of the precautionary
principle.

It is worth noting the way the burden of proof is treated in these definitions. When an
activity is likely to cause harm to the environment and/or humans, the conventional
practice is that the opponents of the activity have to provide the proof of the harmful
effects caused by the activity. The precautionary principle, on the other hand, shifts the
burden of proof to the proponents of the activity – i.e., the proponents have to establish
that the proposed activity will not cause any harm to the environment and/or human-
beings. Further, it is also argued that since scientific uncertainty is inherent in the
environmental problems for which the PP is typically applied, the decision making process
based on the PP may become more inclusive, participatory and democratic.

Precautionary Principle in International Instruments

The precautionary principle appeared at the international level in the mid 1980s. The
principle was first formally acknowledged internationally in the Preamble to the 1985
Vienna Convention for the Protection of the Ozone Layer, in which the Parties
acknowledged the ‘precautionary measures’ which had already been undertaken at both
the national and international levels in relation to the protection of the ozone layer. Building
on this recognition, in 1987, the Parties to the Montreal Protocol on Substances that
Deplete the Ozone Layer agreed to take ‘precautionary measures’ to control global
emissions of ozone depleting substances and noted the ‘precautionary measures’ already
undertaken at national and regional levels in relation to the emission of
chlorofluorocarbons. The need for a ‘precautionary approach’ was also recognised in the
sequence of conferences on the North Sea. In the Second North Sea Conference Ministerial
Declaration (the London Declaration) in 1987, the principle was referred to three times:

“In in order to protect the North Sea from possibly damaging effects of the most dangerous
substances, a precautionary approach is necessary which may require action to control
inputs of such substances even before a causal link has been established by absolutely clear
scientific evidence;

…By combining…approaches based on emission standards and environmental quality

objectives, a more precautionary approach to dangerous substances will be established; The
parties therefore agree to…accept the principle of safeguarding the marine ecosystem of
the North Sea by reduction polluting emissions of substances that are persistent, toxic and
liable to bio accumulate at source by the use of the best available technology and other
appropriate measures. This applies especially when there is reason to assume that certain
damage or harmful effects on the living resources of the sea are likely to be caused by such
substances, even where there is no scientific evidence to prove a causal link between
emissions and effects (‘the principle of precautionary action’)”.

At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply
the Precautionary Principle, that is to take action to avoid potentially damaging impacts of
substances that are persistent, toxic and liable to bio accumulate even where there is no
scientific evidence to prove a causal link between emission and effects”. This process led to
the inclusion of the precautionary principle in the Convention on the Protection of the
Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992.

In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic

Commission for Europe Region was the first international instrument to treat the principle
as one of general application and linked to sustainable development. The Declaration states:

“In order to achieve sustainable development, policies must be based on the precautionary
principle. Environmental measures must anticipate, prevent, and attack the causes of
environmental degradation. Where there are threats of serious or irreversible damage, lack
of full scientific certainty should not be used as a reason for postponing measures to
prevent environmental degradation”.
In 1991, the Convention on the Ban of Import into Africa and the Control of Trans-boundary
Movement and Management of Hazardous Wastes within Africa (the Bamako Convention),
signed in Bamako on 29 January 1991, required parties to strive to adopt and implement:

“the preventative, precautionary approach to pollution problems which entails, inter alia,
preventing the release into the environment of substances which may cause harm to
humans or the environment without waiting for scientific proof regarding such harm. The
parties shall co-operate with each other in taking the appropriate measures to implement
the precautionary principle to pollution prevention through the application of clean
production methods”. In 1991, the United Nations Economic and Social Commission for Asia
and the Pacific (ESCAP) resolved that “in order to achieve sustainable development, policies
must be based on the precautionary principle”.

In 1992, the Parties to the Helsinki Convention on the Protection and Use of Trans-boundary
Watercourses and International Lakes, agreed to be guided by:

“The precautionary principle, by virtue of which action to avoid the potential trans-
boundary impact of the release of hazardous substances shall not be postponed on the
ground that scientific research has not fully proved a causal link between those substances,
on the one hand, and the potential trans-boundary impact on the other hand”.

The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to
the precautionary principle. The Rio Declaration states in Principle 15:

“In order to protect the environment, the precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used a reason for postponing cost-
effective measures to prevent environmental degradation”.

The Convention on Biological Diversity recites in the Preamble:

“Noting also that where there is a threat of significant reduction or loss of biological
diversity, lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimise such a threat”.

Article 3(3) of the Framework Convention on Climate Change provides that:

“The Parties should take precautionary measures to anticipate, prevent or minimize the
causes of climate change and mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific certainty should not be used as a reason
for postponing such measures, taking into account that policies and measures to deal with
climate change should be cost-effective so as to ensure global benefits at the lowest
possible cost. To achieve this, such policies and measures should take into account different
socio- economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs
of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address
climate change may be carried out cooperatively by interested Parties”.

Agenda 21 refers to the precautionary principle in a number of contexts. For example, in

relation to marine environmental protection, Chapter 17 calls for:

“A precautionary and anticipatory rather than a reactive approach is necessary to prevent

the degradation of the marine environment. This requires, inter alia, the adoption of
precautionary measures, environmental impact assessments, clean production techniques,
recycling, waste audits and minimization, construction and/or improvement of sewage
treatment facilities, quality management criteria for the proper handling of hazardous
substances, and a comprehensive approach to damaging impacts from air, land and water”.

In dealing with the protection of the quality and supply of freshwater resources, Chapter 18
of Agenda 21 requires Parties to implement various activities including:

“Introduction of the precautionary approach in water-quality management, where

appropriate, with a focus on pollution minimization and prevention through use of new
technologies, product and process change, pollution reduction at source and effluent reuse,
recycling and recovery, treatment and environmentally safe disposal”.
In the context of science and sustainable development, Chapter 35 of Agenda 21 states:

“In the face of threats of irreversible environmental damage, lack of full scientific
understanding should not be an excuse for postponing actions which are justified in their
own right. The precautionary approach could provide a basis for policies relating to complex
systems that are not yet fully understood and whose consequences of disturbances cannot
yet be predicted”.

Many other conventions have subsequently committed their Parties to apply the
precautionary principle.

Most importantly, 1992 paved the way for the convergence of the precautionary principle
and the climate change issue in international law. At Rio de Janeiro, the world
acknowledged the precautionary principle at the level of international law when it adopted
the United Nations Framework Convention on Climate Change. Article 3 of the Climate
Change Convention partly provides that:

“The parties should take precautionary measures to anticipate, prevent or minimize the
causes of climate change and mitigate its adverse effects. Where there are threats of
serious or irreversible damage, lack of full scientific research should not be used as a reason
for postponing such measures, taking into account the policies and measures to deal with
climate change should be cost-effective so as to ensure global benefits at the lowest
possible cost.”

A reference to the afore quoted article was provided in the Preamble of the 1997 Kyoto
Protocol and worded as follows, “Being guided by Article 3 of the Convention”. The
precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested
by some environmentalist and political analysts for being a weak precautionary formulation,
legal positivists argue that law is law and its merits has to be interpreted without going
beyond the wordings of the pertinent international agreement[xxxi].