Abstract
Amidst the serene backdrop of Rio de Janeiro, in the year 1992, world leaders gathered to discuss the most pressing issue of our times - the environment. What emerged from the United Nations Conference on Environment and Development, more commonly known as the Rio Conference, was not just a roadmap for the future, but a clarion call to humanity to take action before it was too late. This paper delves into the three transformative phases of progress in International Environmental Law, and how the Rio Conference was a crucial turning point, setting the stage for a new era of environmental consciousness. In the paper, the researcher explores the pivotal role played by the Rio Summit in shaping the principles and policies that followed, and the repercussions that continue to reverberate today.
I. Introduction
By the end of the 1960s, environmental concerns had emerged due to deteriorating air and water quality and a lack of environmental legislation. And the International legal trends during this time laid the genesis of the present International Environmental Law. The subject’s current form and structure began in the mid-1980s, although to understand the modern principles and laws, the knowledge of prior scientific, political, and legal advancements, which led to these principles is needed. International Environmental Law may be studied in three separate eras: 1900-1945, 1945-1972, and 1972-1992. The Stockholm Conference was the second stage. The UN Conference on the Human Environment helped design the modern IEL. In an attempt to create international environmental responsibility, the declaration’s preamble identified environmental conservation as a “serious concern” and the “urgent desire of the world’s people and the obligation of all governments.” It cleared the stage for the Earth Summit and sustainable development implementation.
The focus of this paper is the 1992 Rio Conference and the developments that followed. The paper alludes to the three phases of progress in International Environmental Law and how its second phase set the ground for its third. This research also evaluates the importance of the Rio Conference for the development of international environmental law, in terms of the principles and policies that followed. The study concludes with an analysis of the aftermaths of the Rio Summit and the present position.
II. En Dubio Pro Natura
“En Dubio Pro Natura”, meaning when there exists an uncertainty with regards to activity as to whether the same shall deteriorate the environment or not, then it should be avoided.[i] This principle has been enshrined in the laws of various nations, like Australia, France, etc. and even in the text of International Treaties as well, like the CPB 2000. Furthermore, various other legislations and soft laws also have included the said principle in their objectives. The precautionary principle advocates for precautionary measures to be taken in advance of conclusive scientific evidence, implying that deferring protective actions due to a lack of full scientific justification is not appropriate. Some subject experts suggest it was originally employed in the Hippocratic Oath, “primum non nocere”, i.e., first, do no harm.[ii]
The jurisprudential growth of this principle is such that it is widely recognized. It grants the “power to execute public policy decisions addressing environmental protection in the face of ambiguity”, allowing for action to be taken to prevent risks of substantial or permanent damage to the environment or human health even when such harm cannot be proven scientifically.[iii]
III. Precautionary Principle as Customary International Law
The international adaption of the precautionary principle fathoms the concept that the same is a fundamental principle of international law and is geared at avoiding undesired human intervention with a legitimate environmental interest. The notion exemplifies a more eco-centric approach but it doesn’t indicate that the harm to the environment may not be sanctioned.[iv]
According to the International Court of Justice,[v] customary international law develops when a widespread and almost consistent practice is adopted by states in the firm belief that doing so is required by international law (opinio juris). So, the fact that certain governments are opposed to the establishment of a customary norm is of little consequence.[vi] The principle of precaution had been relied upon by Hungary, in its conflict with Slovakia, in the Danube Dams Case, concerning the Gabcikovo-Nagymaros Project.[vii]
In its application to the ICJ Hungary had directly referred to the Precautionary Principle stating, “States shall take precautionary measures to anticipate, prevent or minimise damage to their transboundary resources and mitigate adverse effects”. The assertion made by Hungary, concerning the principle of State responsibility for transboundary environmental damage, is grounded in a well-established customary international norm. Principle 2 of the Rio Declaration and Principle 21 of the Stockholm Declaration, which both show widespread agreement on the importance of the norm, serve as the cornerstone for this concept.[viii] Moreover, in the Nuclear Tests Case, Judge Palmer had also ruled that the precautionary principle is, in fact, a principle of customary international law and that a more detailed environmental impact assessment must be conducted whenever there is concern that activity will cause severe environmental damage.[ix]
IV. Precautionary Principle: The Indian Judicial Perspective
With regards to the Precautionary Principle in India, the case of Vellore Citizen Welfare Forum v Union of India[x] has been a landmark one for the same, as in this case, Kuldip Singh J. had pronounced three conditions inculcated in the said principle, i.e.,
(a) Environmental degradation is a challenge that state governments and regulatory authorities must foresee, mitigate, and confront.
(b) Lack of scientific assurance should not be used as a pretext for delaying efforts to minimize environmental deterioration when there are possibilities of catastrophic and irreparable damage.
(c) The “onus of proof” lies with the actor or developer or industrialist to prove their acts will not harm the environment.
In 2018 the Supreme Court again had elaborated upon the precautionary principle in the case of Arjun Gopal and Ors. v. Union of India & Ors.[xi]. The Supreme Court in this case held that, for the application of Precautionary Principle it isn’t necessary that there should exist certain studies/materials. The court was of the view that the mere word “precautionary” implies that this form of action is being done to avoid potential harm, and that it may be used even in the absence of definitive studies.
The importance of the implementation of the Precautionary Principle was again very recently highlighted in the case of State of Uttar Pradesh v. Uday Education and Welfare Trust & Ors.,[xii] wherein the bench of B.R. Gavai and B.V. Nagarathna, JJ. held under paragraph 86 that it is undisputedly the duty of the society to preserve the environment, and hence the precautionary principle has to be consistently followed, as the same had also been held by the Supreme Court previously in various cases. Then recently in the case of State of Rajasthan and Anr. v. Ultratech Cement Ltd.[xiii] the Supreme Court again upheld its stance from previous cases thus holding that Precautionary Principle is an essential element of the Environmental Law in India.
V. Earth Summit: A Turning Point or a Missed Opportunity for International Environmental Cooperation?
On observing the Indian scenario with regards to the Earth Summit, one can definitely come to a conclusion that Earth summit did have a major impact which helped in the furtherance of the objective of attaining India’s sustainable development goals. But the concern regarding the international framework still remains. The UN Framework Convention on Climate Change, with its legally enforceable objectives for industrialized countries, must indeed be considered as a major achievement, leading to the creation of subsequent accords such as the Kyoto Protocol, the Paris Agreement, and the Glasgow Climate Pact.[xiv]
However, concerns arise when statistics reveal the truth as to how half of the flourishing nations failed to return their climate emissions to 1990 levels by 2000, because even after almost 30 years of discussions, global emissions have still not held their horses and that the air today has almost 15% more Co2 as that in 1992,[xv] depicting that the emission genie is still not back in the bottle. Even the 2016 Living Planet Report by the WWF, which analyses abundance of life on earth, fell by 50% between 1992-2016.[xvi] So, it still remains unclear as to whether Earth Summit actually stood out as the winner in attaining its objectives. However, to the question as to whether the same was able to lead a new era in International Environmental Cooperation, the answer would be affirmative, but not just yet. As Mr. Maurice Strong mentioned in his speech, “No place on the planet could remain an island of affluence in a sea of misery”, hence reflecting the idea that the summit has much to negotiate before it can be considered a success in its entirety.[xvii]The ultimate success of the same shall be hinge on how well it is followed up on.
VI. Conclusion
The precautionary principle in India calls for the use of sound judgment in favour of monitoring, preventing, and reducing the effects of probable hazards on the ecological balance. In point of fact, the current risk factors are more complicated, have a wider scope, and have a detrimental effect on both public health and the environment. In order to encourage more responsible decisions regarding health and the environment, the principle is constructively being used as an effective mechanism within the Indian environmental governance system.
Since, there is no universally accepted formulation or interpretation of the principle, despite broad support as an approach in several cases, the problem lies in the question that whether the principle is supposed to be a philosophical concept following the idea of ‘prevention is better than cure’ or whether it is an enforceable rule. And if the principle is taken as a binding rule, it has to be more concrete or else the same will lose flexibility. Therefore, not only the principle is not well-defined but the notion itself is unstable. For instance, in India, the National Environment Policy embraced the precautionary principle as its guiding concept as a direct result of the recognition of the need to implement sustainable development. However, more work has to be done before the principle is properly integrated into the Indian environmental legislation and, more crucially, the principle is actually put into practice.
However, the Earth Summit is not a final destination, but rather the start of something new as the initiatives being proposed here will be the outset of a road yet to be travelled towards our common future. The journey beyond Rio will be long and challenging, but it will also be one filled with excitement, challenge, and opportunity as we usher in the 21st century and a new world in which the aspirations of all the children of the world for a safer, friendlier tomorrow can come true.
[i] Marko Ahteensuu & Per Sandin, Handbook of Risk Theory 961-978 (Springer Dordrecht 2012). [ii] Marko Ahteensuu & Per Sandin supra note i. [iii] Frank B. Cross, Paradoxical Perils of the Precautionary Principle, 53 Wash. & Lee L. Rev. 851, 854 (1996). [iv] Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law, 9 J. Envtl. L. 221, 240 (1997). [v] Nicaragua v. United States of America, I.C.J. Reports 1986, p. 14. [vi] Ole W. Pedersen, From Abundance to Indeterminacy: The Precautionary Principle and its Two Camps of Custom, 3 Transnat'l Envtl. L. 323, 329 (2014). [vii] Gabcikovo-Nagymaros Project (Hungary/Slovakia) Judgment, I.C.J. Reports 1997, p. 7. [viii]McIntyre & Mosedale, supra note 13, at 232. [ix] Nuclear Tests [New Zealand v. France], I.C.J. Report [1995] 288. [x] Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647. [xi] Arjun Gopal and Ors. v. Union of India & Ors. (2019) 13 SCC 523. [xii] State of Uttar Pradesh v. Uday Education and Welfare Trust & Ors. (2022) SCC OnLine SC 1469. [xiii] State of Rajasthan and Anr. v. Ultratech Cement Ltd. (2022) SCC OnLine SC 1102. [xiv] Richard Dixon, Climate Change: 30 Years on from Rio Earth Summit, Did It Actually Achieve Anything?, Scotsman (June 7, 2022), https://www.scotsman.com/news/opinion/columnists/climate-change-30-years-on-from-rio-earth-summit-did-it-actually-achieve-anything-dr-richard-dixon-3716466. [xv] Supra Note xiv. [xvi]Living Planet Report 2016 (World Wildlife Fund, 2016), https://www.worldwildlife.org/pages/living-planet-report-2016. [xvii]Paul Brown & Jan Rocha, Earth Summit: Rio Opens with plea for proof of global brotherhood, The Guardian, https://www.theguardian.com/environment/1992/jun/04/worldsummit20021.
This post is authored by Shreya Bajpai, a 5th Year student at MNLU Nagpura nd Aaditya Bajpai a 4th Year student at MNLU Nagpur.
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