JOURNAL ON ENVIRONMENTAL LAW POLICY AND DEVELOPMENT

Transcription

1 NATIONAL LAW SCHOOL OF INDIA UNIVERSITY ISSN(O) Issue JOURNAL ON ENVIRONMENTAL LAW POLICY AND DEVELOPMENT ejelpd 2 (2015) Centre for Environmental Law Education Research and Advocacy (CEERA) Bangalore

2 For Subscription Contact: Centre for Environmental Law Education, Research and Advocacy (CEERA) National Law School of India University, P O Box 7201, Nagarbhavi, Bangalore Ph: ceera@nls.ac.in Price: India 500/- ISSN (O) Abroad US $ 20 / 10 Copyright: CEERA, NLSIU, Mode of Citation: ejelpd 2 (2015) Disclaimer: The views expressed by the author/s in the journal are their personal and do not reflect the views of the National Law School of India University. Online hosting at Printed at Sri Vidya Printers, Bangalore-20 ii

3 Patron-in-Chief Prof. [Dr.] R Venkata Rao Vice Chancellor, NLSIU Patron Prof. [Dr.] M K Ramesh Professor of Law, NLSIU Chief Editor Dr. Sairam Bhat Associate Professor of Law, Co-ordinator, CEERA Editors Mr. Manjeri Subin Sunder Raj Assistant Professor of Law, CEERA, Commons Cell Mr. Chiradeep Basak Assistant Professor of Law, CEERA, Commons Cell Editorial Advisory Board 1. Prof. Armin Rosencranz Consulting Professor, Stanford University, California, United States of America 2. Prof. Ishwara Bhat Vice Chancellor, WB National University of Juridical Sciences, Kolkata. 3. Prof. Robert Lee Director, Centre for Legal Education and Research, Birmingham Law School, Birmingham, United Kingdom. 4. Prof. T R Subramanya Vice Chancellor, Karnataka State Law University, Hubli, Karnataka. 5. Prof. Avinash Govindjee Professor of Law and Head of Dept of Public Law, Nelson Mandela Metropolitan University, South Africa. 6. Dr. Kalyani Robbins Associate Professor of Law, Florida International University College of Law, United States of America iii

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5 MESSAGE FROM THE PATRON-IN CHIEF FROM THINK GLOBALLY TO ACT LOCALLY we have moved to CONNECT GLOBALLY AND ENGAGE LOCALLY. The focus is on sustainable life style to save the planet. It delights me to note that the latest issue of Journal on Environmental Law, Policy and Development is being released at a time when the United Nations has declared 21 st June as International Day of Yoga. This adds to my delight particularly, because, as Mr.Himanshu Gupta says, By improving our ability to deal with temperature changes, yoga reduces our dependence on artificial airconditioning and helps cut back harmful refrigerant-based emissions. The small incremental changes will always lead to greater change which ultimately will result in global change. This is an earnest attempt in that direction. I congratulate the team for its praiseworthy collective efforts. Prof. (Dr.) R. Venkata Rao Vice-Chancellor, NLSIU v

6 MESSAGE FROM THE PATRON Law, in the formal sense of the term, to be of contemporary relevance, should be in dynamic ferment. Review, revision and reform is an integral aspect of such a process. Juristic opinion, on different aspects of law and its working, gives the required gravitas to this effort of the law-maker. The long felt need is the dearth of serious writing and commentaries, juristic opinions- on environmental regulations and their application. I feel proud that the Journal on Environmental Law, Policy and Development, is an earnest attempt in bridging such a gap, to guide, influence and illuminate the path to better environmental governance and well-being. Prof.(Dr.) M K Ramesh Professor of Law vi

7 EDITORIAL The editorial team s thought goes back to a gruesome accident which happened three decades ago [ years of Bhopal disaster], but the effects of which are present even now. Bhopal, the tragedy that has struck many a life and continues to do so, even to this day, evokes a flood of emotions in all alike. We hope that environmental justice is never defeated. We pay homage to the departed souls and those who are directly as well as indirectly affected by this ghastly incident. Justice? Three decades and counting! Centre for Environmental Law Education, Research and Advocacy [CEERA] and the Commons Cell, NLSIU is elated to publish the second edition of the Journal on Environmental Law, Policy and Development, an interdisciplinary journal. The continued effort in publishing the Journal has been possible solely because of the unstinted support, encouragement and guidance of Prof. R Venkata Rao, our honorable Vice Chancellor. The Journal is further dedicated to the eco-conscious spirit of the Environmental Law Mission of the law school ably led under the leadership of Prof. M K Ramesh, Professor of Law, NLSIU. The environmental law programmes and activities at NLSIU have received international and national recognition, support and sponsorship, and that credit must belong to the immense contributions of Prof. R Venkata Rao and Prof. M K Ramesh. On behalf of the editorial board, it is my privilege to thank our Patrons and the members of the Advisory Board for their continued support and contributions in publication of the journal. We also express our sincere and heartfelt gratitude to Prof. O V Nandimath, Registrar, NLSIU. The journal commences with a contribution from Ukraine. Sergiy Bilotsky, Associate Professor, Institute of International Relations KNU, Kyiv, analyzes the international legal regulation of environmentally oriented energy in international law and its contribution to the progress of Ukraine. Environmentally oriented energy, in the framework of international law refers to the legal regulation of the use of renewable energy, energy efficiency, the use of new sources of energy (nuclear fusion), as well as environmentally safe use of traditional fossil energy sources (uranium, oil, gas). A key role in this process is played by the international organizations (ITER IRENA), as well as bilateral and multilateral agreements [the Energy Charter Treaty (ECT), the Kyoto Protocol]. Ukraine is a party to several international organizations, a party to the ECT, member of the European Energy Community, adapting its vii

8 National Law School of India University Journal on Environmental Law Policy and Development legislation to EU law. In addition, she participates in international theoretical developments on nuclear fusion. Accordingly, Ukraine has sufficient quantitative, but unfortunately fragmented legal basis for international cooperation on EOE. Thus, the establishment of using the alternative energy under the Kyoto Protocol, as the way to cut greenhouse gas emissions, will not require Ukraine to introduce the alternative energy, because Ukraine does not exceed standards on CO2 emissions, but ECT is an incentive in this process, with a special protocol on energy efficiency and attributing many types of alternative energy sources to its object of regulation. Participation in EEC imposed a general obligation on Ukraine to adapt its legislation to the two EU directives to support renewables. Unfortunately, while there was convergence of Ukrainian legislation to the EU directive 2001/77/EC and 2003/30/EC, the EU has replaced them on another (Directive 2009/28/EC), but some progress has been made and carried out within the framework of adaptation. Bilateral interdepartmental memoranda devoted mainly to the objectives of reaching a certain level of technical cooperation and monitoring the implementation of the financial aid allocated to Ukraine for the development of projects on alternative energy. The author states that the most successful amongst all is an agreement with Brazil, which is aimed to strengthen Ukrainian capacities of creating ethanol. Uday Shankar and Arindam Basu in their article, Conservation of Nature en route Religion analyzes the role of religion in furthering the cause of protection of environment. Supreme Court of India has been found undertaking the voyage of protecting environment through religious faith of the community in a recent judgment, the Vedanta mining case. If we consider the Vedanta judgment given by the Indian Supreme Court as an effort of de-establishment of environmentalism then there is a need to examine whether the idea of religion in Indian Constitution actually has such broader corollary. In other words, we need to understand that some forms of religious practice actually qualify as environmentalism within the meaning of the Constitution. The paper explores the interaction between faith, religion and environment and also examines the position on environmental protection in India and its relationship inter se different provisions of the Constitution. Then, the constitutional debate on religion and environment has been eloquently presented in the research. Next, we have a short article from Deva Prasad in which the author analyses environmental concerns of Outer Space. Outer space is subjected to various viii

9 Issue 2 Editorial 2015 explorations and use which inter alia include telecommunication, remote sensing and broadcasting. Emerging areas such as space tourism and outer space mining of natural resources are activities which would take predominance in outer space exploration in the near future. Due to the increased exploration and use of outer space, there is a clear adverse impact upon the outer space environment, which is understood as the province of mankind by the Outer Space Treaty, 1967 and also understood as global commons.there is an increasing resource stress upon the outer space commons leading to a host of environmental issues and raising sustainability concerns regarding long term usage of outer space. Outer space environment sustainability concerns would also have important legal and policy perspectives. This paper highlights the adverse impact that would be caused by increasing use and exploration of outer space. Further, this article highlights how the present international space law and policy lacks focused attention on the environmental protection and preservation aspect of outer space. In this regard the paper exposes a gap in the law and policy regarding imperative issues of concern for space environment sustainability. The issues highlighted in the paper are: a) lack of effective legal framework regarding space debris leading to space pollution, and b) lack of effective legal framework regarding the exploitation of the natural resources in outer space. Further this paper emphasises the need for having pro-active outer space law and policy which would ensure that the space environment is being protected and made sustainable for the future peaceful and beneficial use of the outer space. The paper also discuss about the possibility of developing a legal instrument for the purpose of space environment sustainability. Saurabh Sharma s contribution is on Corporate Social Responsibility and Environmental Protection. The author states that the goal is to achieve nothingness of environmental inequities whereby the poor tends to encounter more environmental problems than the rich since the rich has more choices about his existence. More than the poor, who are environmentally uneducated, the rich takes bigger steps towards environmental degradation despite being much environmentally educated. Does a poor unfazed man hardly give two straws whether the polythene which he is disposing would actually effect the environment? The human race consumes resources faster than they can replenish, thereby compromising the ability of the future generations to meet their needs and demands. Can we actually obtain a perfectly-just society in terms of intergenerational and environmental equity, as coined by Professor John Rawls? Can we enlarge Locke s, Hobbes and Rousseau s Social Contract Theory to ix

10 National Law School of India University Journal on Environmental Law Policy and Development include environment as an associate? Do we conserve environment because of reciprocity or because of our own existence? Why do corporations owe any responsibility to anyone else besides their stakeholders? Can the environment be considered as one of the corporation s stakeholders? In view of these Corporate Social Responsibilities, environmental ethics is expected to be practiced by the corporations not only in words but in true spirit. The approach has to be changed from interest-centric to effect-centric. The author raises questions as follows: You cut trees; you pollute atmosphere; you develop more and more; but still growth would not be possible. Can the resources be considered as a trust? Are we trustees? What rights do the present generations have as trustees? What duties do the present generations owe towards the future generations as trustees? Why is it that despite having innumerable regulations for environmental concerns, both at national and global level, we still witness environmental inequities and injustice? Can the environmental law be considered as soft law, as coined by McNair, for that matter? Devarshi Mukhopadhyay and Rahul Mohanty in their article bring out the issue of GM crops with IP and environmental concerns.amidst long lasting argumentative discourse surrounding the usage of genetically modified crops and its related legal and bio-centric contentions at multiple levels in India, the agricultural industry and its ancillary policy makers continue to a significant degree, to advocate the use of genetically engineered crops in the country. Seen as a significant step forward in the apparently promising path of technological advancement and its subsequent promise of a rise in productivity levels and national agricultural output, the process of policy experimentation of such an initiative has spanned over a few decades now, with legislators and critics engaging in extensive debate over the use of genetically modified Brinjal, Potato, Cotton and Maize, amongst several others. The authors seek to adopt a weighing balancing method of analysis, in order to deconstruct the possible legal reasons as to whether or not India is in a position to welcome the usage of genetically modified crops. The first section of the paper links issues relating to patent violations and farmer liability for GM contamination, followed by an examination of the manner in which the typically inadvertent Indian farming community is likely to be tangled in a web of liability. The second section of this paper examines the possible international repercussions for India, (with particular reference to the Nagoya and Cartagena Protocols) which stem from the violation of internationally agreed environmental standards, through treaties, conventions as well as customary international law. The third and final section x

11 Issue 2 Editorial 2015 of the paper contains a concise analysis, which tries to attain a reasonable inference point, at least at the level of principle based policy making. This particular section analyzes the regulatory inabilities of the Indian policy framework at the backdrop of the current Indian legal position on GM Crops. In reaching this inference, heavy reliance has also been placed on the pertinent discussion of the precautionary principle in GM food safety viz. the substantive equivalence principle as applicable in this country. In the next section we have two case comments dealing with Animal rights. Firstly, Manjeri Subin Sunder Raj and Febin A K, have submitted a case comment on Ramesh Kumar v. State of H P. The Himachal Pradesh High Court has made the most out of the opportunity presented before it. Having being asked to consider a Public Interest Litigation, which aimed to do away with animal sacrifices prevalent in various temples in the state, the Court treads highly unstable ground. Successfully looking into various aspects of religion and whether religious practises as such, form an integral part of the religion or not, the court relying on a lot of precedents, comes to a conclusion that animal sacrifice need be done away with. Delving into the rights of animals as well, it firmly puts across that they too are a life form and need be protected the same way as humans are. While laws made by man, necessarily were, in most situations if not all, for the benefit of himself, somewhere down the line one can see a definitive change from anthropocentrism to eco centrism. One may however doubt, and presumably so, that such a change was necessitated not only because man cared for other forms of life, but due to the fact that he cared for himself more! Dispelling such doubts courts have time and again come forward to pronounce judgments that have been successful in furthering a just cause, albeit in a small way. Following the above, we have a case comment from Shravanthi Suresh which deals with Animal Welfare Board of India v. A. Nagaraja and Ors., a case which analyzed whether the activities that take place during the event of Jalikattu and other such bull fighting events, amount to animal cruelty in the light of the Prevention of Cruelty to Animals Act in and questions the constitutionality of the Tamil Nadu Regulation of Jalikattu Act, 2009 and the Central Government notification issued under section 22(ii) of The Prevention of Cruelty to Animals Act, 1960, dated 11/7/2011. The petitioners in this case are the Animal Welfare Board of India (AWBI) and People for Ethical Treatment of Animals (PETA) who claimed that bulls, in certain events such as Jalikattu, xi

12 National Law School of India University Journal on Environmental Law Policy and Development were subjected to various acts of cruelty and torture, clearly violating Section 11 (1) of The Prevention of Cruelty to Animals Act, On the other side, the respondents, the organizers of the bull fighting events and the owners of the bulls respectively, denied all allegations of cruelty to animals, and submitted that banning these races is against public interest and would hurt the sentiments of the local people as these events have been in practice for a few hundred years and forms part of the local customs and tradition. The Court found that the bull fighting events amount to animal cruelty and are in clear violation of Sections 3 and 11 of PCA Act. The Bench dismissed the claims of the respondent that these events have religious significance, on grounds that the Statement of Objects and Reasons of the TNRJ Act did not mention any religious significance. The Court further noted that the PCA Act, being a welfare legislation, will override all claims of tradition and culture of the people and specified that the main purpose of the Act is to promote welfare of the animals and to check for violations. The analysis includes a brief introduction to the facts of the case, the contentions raised by both the parties, an explanation to the judgment and the author s concluding remarks. In the last section, we have a book review by Chiradeep Basak of the book titled Foreign Investment and the Environment in International Law. Prof. Jorge E. Viñuales in his book has ornately brought the nexus between environment and investment. In a world, where the countries are divided on the basis of their socio-economic interests; drawing a nexus between environment and investment needs an intricate study. The review has attempted to scrutinize the study in a concise manner, highlighting the major principles, techniques, tools that has been discussed by Prof. Viñuales. The Journal is our humble attempt in contributing to the field of environmental law research and we hope to continue the good work with our team at CEERA and Commons Cell. Special thanks to Ms. Baba, Secretary, Commons Cell and Sri Vidya Printers for co-ordinating the whole effort and bringing out this issue on time. Dr. Sairam Bhat xii

13 ARTICLES CONTENTS 1. International Legal Regulation of Environmentally Oriented Energy and Ukrainian Practice... 1 Sergiy Bilotsky 2. Conservation of Nature en route Religion: A New Paradigm Emerging in India Uday Shankar and Arindam Basu 3. Analysing Sustainability Concerns of Outer Space Environment- Law and Policy Perspective Deva Prasad M 4. Environmental Justice: Inter-generational Equity and Corporate Social Responsibility Saurabh Sharma 5. The Introduction of Genetically Modified Crops in India: Examining the Need for an Effective Legal and Policy Regime Devarshi Mukhopadhyay and Rahul Mohanty CASE COMMENTS 1. Does God Need a Sacrifice? An Appraisal of Ramesh Sharma v. State of Himachal Pradesh Manjeri Subin Sunder Raj and Febin A K 2. Animal Welfare Board of India v. A. Nagaraja and Ors Shravanthi Suresh BOOK REVIEW 1. Foreign Investment and the Environment in International Law by Jorge E. Viñuales Chiradeep Basak xiii