Evolution of Environmental Law

Introduction

The last few decades witnessed a mammoth change in the structure of environmental law, clearly the risks have become expanded and jostled the environment traversing boundaries. Awareness and assessment with regard to climate have garnered a lot of attention, discussion, leading to various multilateral agreements among countries to look towards a more comprehensive environmental law. However, if we trace back at the beginning of 1972, there were not much awareness with regards to environment which meant fewer countries were looking at environmental issues more significantly, thus devising either poor legislations or no legislations at all. This has taken a massive change post 2011 and many countries have taken part in both multilateral and bilateral agreements in order to frame a more expansive legislation, a statute that is wide and detailed enough to cover all aspects of environment with a futuristic approach. Today, environment is no different from the economic aspect of a country and functions in an integrated form with trade between countries, issues of human rights and the gross violation in terms of environmental law and most important of all the issues of national security. Addressing these aspects of environmental law has also allowed conversation around the problems that the legislation fails to suffice, in countries beyond and within territories.

The challenges that arise in the international environment law relates largely to the transboundary nature of the state, therefore the need to have a strong legal foundation that allows cooperative actions disregarding the concept of isolation was the need of the hour. The International Court of Justice also focuses highly on the preservation and protection of the environment and through the application of several legislation. The international law has its sources in the customary practices which have now been moulded into treaties which are functional at global arena through the execution of the multilateral treaties. About 500 instruments drive the international environmental law that challenges individually at different aspects of the environment which has further allowed the creating of legislation that is fragmented in nature. This has been the primary result of the multilateral decision making at the highest.

State Sovereignty and State Responsibility

The concept of state sovereignty has been found in the 1628 treaties “Peace of Westphalia”. Even though the notion of state sovereignty has gone through a plethora of changes, it has still been fundamentally strong and carries a lenient interpretation as it fundamentally upholds the elements of cooperation and peaceful coexistence. The transboundary impacts have also seen a change, which was primarily concerned with waterways and disputes that arose from that but today such a scope has seen a broadened to the quality of air and the climate change in general. Earlier States had the “full” and “absolute” sovereignty as supported by the Harmon doctrine wherein the states had complete liberty to utilize their resources within the territorial boundaries as they required without taking into account the effect it might have on the neighbouring states, however, even though the concept of territorial sovereignty allows unlimited use of the concept but as Oppenheim had stated that even though the state has its territorial supremacy, a state should not function in a way that puts the neighbouring state in a disadvantaged position. It has been noted in many previously decided cases like the Island of Palmas Case where the rights of the state along with the duties and obligations was acknowledged. In the case of United States v. Canada also known as the Trial Smelter Case where Canada was held liable for the causing air pollution that affected due to the use of zinc and sulphur dioxide along with the damages it caused to the plants and crops in Washington, US. It was upheld by the Arbitral Tribunal that such an act detrimental to the environment of the neighbouring State must be held liable and directed to pay damages for the same. The decisions taken in the Corfu Channel Case in 1949 has reflected similar stance which has been used in cases like Spain v. France or the Lax Lanoux case in 1957.

State sovereignty can be identified in either an active sense through the concept of “Territorial sovereignty” relying on the power of the state to act to its strength and omit to act in situations having both a sense of “national independence” having control over external decisions as well as “internal autonomy” having complete control over internal decisions. However, the cases above shows the responsibility that the state has towards the neighbouring states reflect the territorial integrity.

State Responsibility –

State responsibility has seen to exist from 1928 decided in the Chorzov case where the Permanent court had stated that the responsibility to repair any damage that may have caused due to the breach of international obligation lies on the state. The idea of responsibility arising from state had been one of the first principles of codification, given the intent of international law to cater to the public interest at large and multilateralism, the entire global community is functioning on the reciprocity of rights as well as duties among states. The incorporation of this has been reflected on many documents that have been adopted by the General Assembly primarily to develop a unified idea of state responsibility. The State responsibility arises and becomes functional especially when a state commits a crime at the international front, that goes to restricts the state sovereignty. The ultimate condition attached for the responsibility of the state to arise is largely connected to the notions of the state and the inter relationship between the two has been mentioned in Resolution 56/83. Essentially, an audit of the state as a subject of the worldwide law at that point deciding global duty of state would occur, just as a survey of the illegitimacy of the demonstrations, their belongings and season of execution. The UN charter has reserved place for the sovereign equality of nation under Article 2.1 and Article 2.4 prevents the member states to utilize their sovereignty as a threat against any other state which have been taken from the customary international law.

Limitation

The ‘no Harm’ principle has been a longstanding agenda upheld by the Stockholm Declaration retrieved from customary law acting as a warrant for the states in order to restrict the from acting in a way that has potential risks and could be detrimental to the environment. The risk assessment of any action becomes primary allowing to create a sense of due diligence for the states.

‘Obligationes erga omnes’

The Barcelona Traction case upheld the difference between the duties of a state and obligationes erga omnes keeping in mind the global international community on the whole which is entailed in Responsibility of States for internationally wrongful acts (Article 48). This allows states to bring cases that is a result of violation before the court and has space for cases that are a result of transboundary damages. It is understood that the threat to the environment cannot be contained within boundaries thus, it is evident that the impact of transboundary damages has grown and taken a larger shape. Along with that, the issues that the international community is fighting at large is unavoidable and multiple issues like the dangerous threat to the climate change, ozone layer depletion or biodiversity An overall detrimental effect on the environment is affecting people beyond boundaries. Thus, the threat that has accumulated and challenged the being of the world at large can be overcome if there is sufficient cooperation in between nation states and naturally such expansion of numerous territorial or nearby ecological issues entails an expensive and extensive global repercussion. The states that are at a weaker position either financially or geo-politically might entail conflicts which may have a spill over effect and produce or intensify between or intra-state clashes and strains. Thus, ecological issues can influence political, financial, social, and security interests in different parts of the creating or even the industrialized world. Therefore, the state sovereignty enjoyed is also going through a series of modification especially with newer challenges faced by the environment but abiding by the privileges ascertained by the principle of state sovereignty, it allows the states to address such regulations in a way that is designed to avoid any homegrown conflicts as such. From that perspective, the state has been considered as the essential wellspring of worldwide ecological debasement and acts as the core hindrance from allowing the implementation of effective protection of the environment. Thus, it can be established that this privilege of enjoyed by the state could comprehensively threatens the global environmental security. The only way to combat environmental degradation can only be achieved through cooperation between state players and this could go on to build a different power play in between weaker and stronger states. Transboundary natural issues effectively play on the idea of sovereignty and bring about substantial changes since harms have an overreaching impact on air sheds, streams, oceans, woods, and creature and vegetation regularly rises above public limits, arrangements require the participation of state actors in numerous states. It is significant that active participation among different states has demonstrated to be critical in addressing multiple transboundary issues therefore, the regulations and policies that are formulated shall be coherent enough to be applicable at the extremely low levels. The state actors remain the only existing hope in tackling the issues There is no one cohesive global way to implement laws and regulations rather the participation of individual states and actors with the governance play a significant role in addressing the issues. Enforcement of international environment laws can be approached either domestically or internationally but the enforcement mechanisms are not typically strong and therefore may have difficulty in imposing restrictions given the non-binding nature of regulations followed and the installation of soft laws. It has been considered that not only the states are failing to procure effective mechanisms but the rules that govern the subject is failing at its core. The intervention of government in financial outlays also is an active measure in controlling enforcement mechanism. The domestic courts also have a substantial effort in implementing enforcement mechanisms as it focuses more on the conduct of individuals by implementing international law largely. However, it cannot be assumed that domestic courts will directly enforce international law, especially with the doctrine of sovereign immunity making such enforcements harder as was upheld in the case of Schooner Exchange v. M’Faddon. However, the Paquette Habana case reflects shows that the domestic courts have directly implemented international law. Even though, this doctrine has seen to remove biasness and allowed a fair play yet its up to various arguments.

Conclusion

Thus, in order to execute fair enforcement mechanisms with the various doctrines favouring states and taking into account the various transboundary damages that impact the environment on a global front, eluding any form of individual state play, the appropriate and most fitting approach would be to develop and strengthen the power of domestic courts. Individual actions as well as corporations can be held accountable from a ground level and the domestic courts will have sufficient control over their activities and take actions keeping the lower levels of such actors in mind, targeting the foundational structure and holding them accountable shall allow a better and more effective enforcement mechanism.

BIBLIOGRAPHY

Thilo Marauhn, ‘Changing Role of the State’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008) 729

Island of Palmas Case, 2 RIAA (1949), pp.829–90. See also Lagoni (1981: 223–24)

Duncan A French, ‘A reappraisal of sovereignty in the light of global environmental concerns’ [2001] 21 TOC 376, 378

Milka Dimitrovska, “THE CONCEPT OF INTERNATIONAL RESPONSIBILITY OF STATE IN THE INTERNATIONAL PUBLIC LAW SYSTEM”, Journal of Liberty and International Affairs | Vol. 1, No. 2, 2015 | UDC 327 | ISSN 1857-9760

Duncan A French, ‘A reappraisal of sovereignty in the light of global environmental concerns’ [2001] 21 TOC 376, 378

Chinthaka Mendis, ‘Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project’ (2006) < United Nations/Nippon Foundation Fellow Paper 14 > accessed on 21st April, 2021

Marian A.L. Miller, “Sovereignty Reconfigured: Environmental Regimes in Third World States”, in Karen T. Liftin, The Greening of Sovereignty in World Politics,