STOCKHOLM CONVENTION AND BRUNDTLAND REPORT

Global inter-governmental action on environmental issues began with the United Nations
Conference on the Human Environment in Stockholm (Sweden) from 5th to 16th June 1972.
This led to the Stockholm Declaration (Declaration on the Human Environment) and an Action
Plan with 109 recommendations on environment assessment, management and support
measures. The Stockholm slogan was “Only One Earth.

The 1972 United Nations Conference on the Environment in Stockholm was the first world
conference to make the environment a major issue. The participants adopted a series of
principles for sound management of the environment including the Stockholm Declaration and
Action Plan for the Human Environment and several resolutions.

The Stockholm Declaration, which contained 26 principles, placed environmental issues at the
forefront of international concerns and marked the start of a dialogue between industrialized
and developing countries on the link between economic growth, the pollution of the air, water,
and oceans and the well-being of people around the world.
OBJECTIVES OF THE CONFERENCE

Stockholm represented a first taking stock of the global human impact on the environment, a
basic common outlook on how to address the challenge of preserving and enhancing the human
environment. As a result, the Stockholm Declaration espouses mostly broad environmental
policy goals and objectives rather than detailed normative positions. However, following
Stockholm, global awareness of environmental issues increased dramatically, as did
international environmental law-making proper. At the same time, the focus of international
environmental activism progressively expanded beyond transboundary and global commons
issues to media-specific and cross-sectoral regulation and the synthesizing of economic and
development considerations in environmental decision-making. By the time of the Rio
Conference, therefore, the task for the international community became one of systematizing
and restating existing normative expectations regarding the environment, as well as of boldly
positing the legal and political underpinnings of sustainable development.

HISTORICAL BACKGROUND

In 1968-69, by resolutions 2398 (XXIII) and 2581 (XXIV), the General Assembly decided to
convene, in 1972, a global conference in Stockholm, whose principal purpose was “to serve as
a practical means to encourage, and to provide guidelines to protect and improve the human
environment and to remedy and prevent its impairment” (General Assembly resolution 2581
(XXVI). One of the essential conference objectives thus was a declaration on the human
environment, a “document of basic principles,” whose basic idea originated with a proposal by
the United Nations Educational, Scientific and Cultural Organization (UNESCO) that the
conference draft a “Universal Declaration on the Protection and Preservation of the Human
Environment”.

The roots of the Stockholm Conference lie in a 1968 proposal from Sweden that the UN hold
an international conference to examine environmental problems and identify those that required
international cooperation to solve. The 1972 conference was attended by delegations from 114
governments. (It was boycotted by Soviet-bloc countries because of the exclusion of the
German Democratic Republic [East Germany], which did not hold a UN seat at the time.)
Documents created during the conference influenced international environmental law; one
notable example was the final declaration, which elucidated 26 principles concerning the
environment. The conference also produced the “Framework for Environmental Action,” an
action plan containing 109 specific recommendations related to human settlements, natural
resource management, pollution, educational and social aspects of the environment,
development, and international organizations.
ISSUES UNDER DISCUSSION AT STOCKHOLM CONFERENCE

• Problems and Management of Human Settlements

• Natural Resources Management
• Pollution Control Measures
• Social and cultural aspects of environmental issues
• Development and its relation with the environment
DECLARATION OF THE CONFERENCE

The Stockholm Declaration on Environment comprises a proclamation of 26 principles and

submission of recommendations. Some of the important principles relating to environment
protection in the Stockholm declaration are as follows:

• Principle 01: Right to Protect Environment

• The man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and future generations.

Principle 02: Management of Natural Resources

• The natural resources of the earth, including the air, water, land, flora and fauna and especially
representative samples of natural ecosystems, must be safeguarded for the benefit of present
and future.

• Principle 03: Management of Renewable Resources

• The capacity of the earth to produce vital renewable resources must be maintained and,
wherever practicable, restored or improved.

Principle 04: Conservation of Wildlife

Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and
its habitat, which are now gravely imperilled by a combination of adverse factors.

Principle 05: Management of Non-Renewable Resources

The non-renewable resources must be employed in a way as to guard against the danger of their
future exhaustion and to ensure that benefits from such employment are shared by all.
Principle 06: Pollution Control

The discharge of toxic substances or other substances and the release of heat, in such quantities
or concentrations as to exceed the capacity of the environment to render them harmless, must
be halted.

Principle 07: Prevention of Pollution of Seas States shall take all possible steps to prevent
pollution of the seas.

Principle 08: Economic and Social Development

• Economic and social development is essential for ensuring a favourable living and working
environment for man and for creating conditions necessary for the improvement of the quality
of life.

• Principle 09: Underdevelopment and Natural Disaster

• Environmental deficiencies generated by the conditions of underdevelopment and natural

disasters can best be remedied by the transfer of substantial quantities of financial and
technological assistance.
Principle 10: Stability of Prices of Primary Commodities

• For the developing countries, stability of prices and adequate earnings for primary
commodities and raw materials are essential to environmental management.

• Principle 11: Environmental Policies

• The environmental policies should enhance and not adversely affect the present or future
development potential of developing countries.

• Principle 12: Environment Protection Education

• Resources should be made available to preserve and improve the environment

Principle 13: Rational Management of Resources

• In order to achieve rational management of resources, States should adopt an integrated and
coordinated approach to their development planning.

• Principle 14: Rational Planning

• Rational planning constitutes an essential tool for reconciling any conflict between the needs
of development and the need to protect and improve the environment.

• Principle 15: Human Settlements

• Planning must be applied to human settlements and urbanization with a view to avoiding
adverse effects on the environment.

• Principle 16: Human Population

• Demographic policies which are without prejudice to basic human rights, and which are
deemed appropriate by Governments concerned should be applied in those regions where the
rate of population growth is likely to have adverse effects on the environment.

Principle 17: Setting of Environmental Pollution Control Agencies at National Level

• Appropriate national institutions must be entrusted with the task of planning, managing or
controlling the environmental resources.

• Principle 18: Use of Science and Technology

• Science and technology must be applied to the identification, avoidance and control of
environmental risks and the solution of environmental problems.

• Principle 19: Education in Environmental Matters

• Education in environmental matters is essential in order to broaden the basis for an

enlightened opinion and responsible conduct by individuals, enterprises and communities in
protecting and improving the environment in its full human dimension.
• Principle 20: Further Scientific Research

• Scientific research and development in the context of environmental problems must be

promoted in all countries, especially the developing countries.

Principle 21: Rights and Responsibility of Sovereign Nations

• States have the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States or of areas beyond the limits
of national jurisdiction. - Precautionary Principle for International Resources
• Principle 22: Development of International Laws
• States shall cooperate to develop further the international law regarding liability and
compensation for the victims of pollution and other environmental damage.
THE PREVENTION OF ENVIRONMENTAL HARM

Probably the most significant provision common to the two declarations relates to the
prevention of environmental harm. In identical language, the second part of both Stockholm
Principle 21 and Rio Principle 2 establishes a state’s responsibility to ensure that activities
within its activity or control do not cause damage to the environment of other States or to areas
beyond national jurisdiction or control. This obligation is balanced by the declarations’
recognition, in the first part of the respective principles, of a state’s sovereign right to “exploit”
its natural resources according to its “environmental” (Stockholm) and “environmental and
developmental” policies (Rio). While at Stockholm some countries still questioned the
customary legal nature of the obligation concerned, today there is no doubt that this obligation
is part of general international law. Thus, in its Advisory Opinion on the Legality of the Threat
or Use of nuclear weapons first, and again more recently in the Case concerning Pulp Mills on
the River Uruguay, the International Court of Justice expressly endorsed the obligation as a
rule of international customary law. Moreover, the Pulp Mills decision clearly confirms that
the State’s obligation of prevention is one of due diligence.

• Trail smelter case (United States, Canada), 194

PRECAUTIONARY PRINCIPLE

The role of the Supreme Court of India in recognizing the precautionary principle as an
essential feature of sustainable development and a part of customary international law
promoted its derivative application from constitutional mandates namely Articles 21, 48A and
51A(g)
• In 1996, Kuldip Singh J in Vellore Citizen Welfare Forum v Union of India (1996) 5 SCC
647 at 658. declared that the principle involves three conditions:

• State government and statutory authorities must anticipate, prevent and attack the causes of
environmental degradation;

• Where there are threats of serious and irreversible damage, lack of scientific certainty should
not be used as a reason for postponing measures to prevent environmental degradation;

• The ‘onus of proof’ is on the actor or developer or industrialist to show the actions are
environmentally benign.

Principle 23: Implementation of Agenda by Every Country

• Without prejudice to such criteria as may be agreed upon by the international community, or
to standards which will have to be determined nationally, it will be essential in all cases to
consider the systems of values prevailing in each country, and the extent of the applicability of
standards which are valid for the most advanced countries, but which may be inappropriate and
of unwarranted social cost for the developing countries.
• Principle 24: International Cooperation

• International matters concerning the protection and improvement of the environment should
be handled in a cooperative spirit by all countries, big and small, on an equal footing.

Principle 25: Coordinated and Dynamic Role

• States shall ensure that international organizations play a coordinated, efficient and dynamic
role for the protection and improvement of the environment.

• Principle 26: Ban on Nuclear Weapons

• Man, and his environment must be spared the effects of nuclear weapons and all other means
of mass destruction

.• NOTE: The two principles 21 and 22 represent, “the most significant consensus that has been
reached in the field of international cooperation among states respecting environmental
protection.
ACHIEVEMENTS OF THE CONFERENCE

• The most important result of the conference was the Declaration on the Human Environment,
often referred to as the Stockholm Declaration.

• The Declaration includes 26 principles, of which Principle 21 has become the most well-
known. This Principle expresses the right of every State to sovereignty over its own natural
resources, but balances this with the duty to ensure that activities under its jurisdiction or
control do not cause any damage to the environment of other States or of areas outside the
borders of national jurisdiction.

• Principle 21 relates exclusively to the transboundary effects and not (or at best cursorily) to
the management of natural resources at a national level. Careful and rational national
management of natural resources is addressed, however, in the less well-known Principles 2 to
5 and 13 and 14. Thus Principle 3 demands that the capacity of the earth to produce vital
renewable raw materials must be maintained and, where practicable, should be restored or
improved.
• Non-renewable raw materials should be exploited in such a manner “as to guard against the
danger of their future exhaustion and to ensure that benefits from such employment are shared
by all mankind” (Principle 5).

• The relationship between development and environment is comprehensively covered in

Principles 6 to 12.

Another important result of the Stockholm Conference was the foundation in December 1972
of the United Nations Environment Programme (UNEP) as a subsidiary organ of the UNGA.
UNEP became the first UN organ whose headquarters were situated in a developing country:
in Nairobi, Kenya.

• Originally, UNEP’s role was supposed to be that of a coordinator and catalyst in the field of
environmental policy within the UN system. However, in the course of time UNEP has also
undertaken a variety of operational activities. Although criticism of UNEP has often been harsh
— like that faced by the United Nations Conference on Trade and Development (UNCTAD),
which was founded in 1964 — it has been able to achieve many results, particularly in the first
decades of its existence when it had a modest budget and a relatively small staff. Important
examples include the Regional Seas Programme (which now involves 13 regions and 140
countries), integrated environment and development programmes for the catchment areas of
large river systems (such as the Zambezi and Mekong) and the groundwork for various
multilateral and regional environment treaties and agreement.

ACTION PLAN OF THE STOCKHOLM CONFERENCE

The Stockholm Declaration also drafted the action plan for the human environment and its
development which required:

• 1. The global environmental assessment program called “earth watch”

• 2. Environmental Management Activities and
• 3. International measures to support the national actions of assessment and management.

ONLY ONE EARTH, THE STOCKHOLM CONFERENCE (HIGHLIGHTS)

The Stockholm Conference produced:

• A Declaration of 26 Principles and an An Action Plan of 109 recommendations.

• Resolution on International and Financial Agreement, which recommended the establishment
of following institutions:

• Governing Council for UNEP, Environment Secretariat

• Environment Coordination Board

• Environment Fund

• Resolution on designation of a World Environment Day.(5 June)

• Resolution on Nuclear Weapons tests which condemned nuclear tests especially those carried
out in the atmosphere and called upon states to refrain from conducting such tests.

1972: UN Conference on Human Environment, held in Stockholm-United Nations

Environment Programme established

• Earth Watch: UNEP keeps constant surveillance on environment.

• Global Environment Outlook (GEO): UNEP publishes its report. 5th Report (GEO-5) released
in 2012

• 1983, World Commission on Environment and Development led by Gro Harlem Brundtland
of Norway – Sustainable Development

• 1987: Brundtland Report (Our Common Future)- UN General Assembly called for UNCED
with primary goals of socio-economic development and prevent continued environmental
deterioration.

BRUNDTLAND COMMISSION

Formally known as the World Commission on Environment and Development (WCED), the
mission of Brundtland Commission was to unite countries to pursue sustainable development
together and was therefore established in 1983.
• The UN general assembly realized that there was a heavy deterioration of the human
environment and natural resources. To rally countries to work and pursue sustainable
development together, the UN decided to establish the Brundtland commission.

• The Chairperson of the Commission was Gro Harlem Brundtland.

• The Brundtland Commission officially dissolved in December 1987 after releasing Our
Common Future, also known as the Brundtland Report, in October 1987, a document which
coined, and defined the meaning of the term "Sustainable Development".
Our Common Future, the influential 1987 Brundtland Report, sought for solutions to parallel
problems of global environmental degradation and global lack of social and economic
development, by asking for these challenges to be addressed in an integrated way, for the
interests of present and future generations.
At the United Nations Conference on Environment and Development, in the 1992 Rio
Declaration, States committed to “the further development of international law in the field of
sustainable development” (Principle 27). In the 1992 Agenda 21 States elaborated that this
involved the “further development of international law on sustainable development, giving
special attention to the delicate balance between environmental and developmental concerns”.

HISTORY

• Ten years after the 1972 United Nations Conference on the Human Environment, most of the
global environmental challenges had clearly not been adequately addressed. In several ways,
these challenges had grown.

• The 1980 World Conservation Strategy of the International Union for the Conservation of
Nature, was the first report that included a very brief chapter on a concept called "sustainable
development". It focused on global structural changes and was not widely read. The UN
initiated an independent commission, which was asked to provide an analysis of existing
problems and ideas for their solution, similar to earlier commissions such as the Independent
Commission on International Development Issues (Brandt Commission) and the Independent
Commission on Disarmament and Security Issues.

In December 1983, the Secretary-General of the United Nations, asked the Prime Minister of
Norway, Gro Harlem Brundtland, to create an organization independent of the UN to focus on
environmental and developmental problems and solutions after an affirmation by the General
Assembly resolution in the fall of [Link] new organization was World Commission on
Environment and Development (WCED) commonly referred to as the Brundtland
Commission.

• The organization aimed to create a united international community with shared sustainability
goals by identifying sustainability problems worldwide, raising awareness about them, and
suggesting the implementation of solutions.
• In 1987, the Brundtland Commission published the first volume of “Our Common Future,”
the organization’s main report. “Our Common Future” strongly influenced the Earth Summit
in Rio de Janeiro, Brazil, in 1992 and the third UN Conference on Environment and
Development in Johannesburg, South Africa, in 2002. Also, it is credited with crafting the most
prevalent definition of sustainability.

FOCUS OF THE ORGANIZATION

(a) To propose long-term environmental strategies for achieving sustainable development to

the year 2000 and beyond;
 • (b) To recommend ways in which concern for the environment may be translated into greater
co-operation among developing countries and between countries at different stages of
economic and social development and lead to the achievement of common and mutually
supportive objectives which take account of the interrelationships between people, resources,
environment and development;

• (c) To consider ways and means by which the international community can deal more
effectively with environmental concerns, in the light of the other recommendations in its report.

• (d) To help to define shared perceptions of long-term environmental issues and of the
appropriate efforts needed to deal successfully with the problems of protecting and enhancing
the environment, a long-term agenda for action during the coming decades, and aspirational
goals for the world community, taking into account the relevant resolutions of the session of a
special character of the Governing Council in 1982. The 1983 General Assembly passed
Resolution 38/161 "Process of preparation of the Environmental Perspective to the Year 2000
and Beyond", establishing the Commission, in the General Assembly.

MANDATE OF BRUNDTLAND COMMISSION

The Brundtland Commission's mandate was to:

• 1. re-examine the critical issues of environment and development and to formulate innovative,
concrete, and realistic action proposals to deal with them;

•2. .Strengthen international cooperation on environment and development and to assess and
propose new forms of cooperation that can break out of existing patterns and influence policies
and events in the direction of needed change; and

•3. raise the level of understanding and commitment to action on the part of individuals,
voluntary organizations, businesses, institutes, and governments” (1987: 347). “The
Commission focused its attention in the areas of population, food security, the loss of species
and genetic resources, energy, industry, and human settlements - realizing that all of these are
connected and cannot be treated in isolation one from another”.
OUR COMMON FUTURE

“Sustainable development is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.’’ -Brundtland report,
1987

• The Brundtland Report was published in October 1989.

• Described sustainability as a three-legged stool with social, environment and economy taking
equal importance in the equation.

• It has been successful in forming international ties between governments and multinational
corporations.
ACHIVEMENT OF BRUNDTLAND COMMISSION

• The report led the production of Agenda 21, an action plan of the UN with regard to
SUSTAINABLE DEVELOPMENT.

• Agenda 21 entailed actions to be taken globally, nationally, and locally in order to make life
on Earth more sustainable

• SCOPE OF SUSTAINABLE DEVELOPMENT ENVIRONMENT

• We should conserve and enhance our resource base, by gradually changing the ways in which
we develop and use technologies. We should have the primary motive of protection of
environment.

• SOCIAL EQUITY Developing nations must be allowed to meet their basic needs of
employment, food, energy, water and sanitation. If this is to be done in a sustainable manner,
then there is a definite need for a sustainable level of population.
• ECONOMIC GROWTH Economic growth should be revived and developing nations
should be allowed a growth of equal quality to the developed nations.
The Stockholm Conference recognized the links between environment and development. But
little was done to integrate this concept for international action until 1987 when the Brundtland
Report, `Our Common Future' was presented to the United Nations General Assembly. The
Brundtland Report stimulated debate on development policies and practices in developing and
industrialized countries alike and called for an integration of our understanding of the
environment and development into practical measures of action.

• Armed with three years of testimony from people at hearings on five continents, the
Commission came to one central conclusion:

• i) The present development trends leave, increasing numbers of people poor and vulnerable,
while at the same time degrading the environment;
• ii) Poverty is a major cause and effect of global environmental problems and, therefore, it is
futile to attempt to deal with environmental problems without a broader perspective that
encompasses the factors underlying world poverty and international inequality; and;

• iii) A new development was required, one that sustained human progress for the entire planet
into the distant future and that sustainable development becomes a goal not just for the
developing nations but for the industrialized ones as well.

ELEMENTS OF SUSTAINABLE DEVELOPMENT

• Political • Economic • Institutional • Technological • Socio-cultural • Ecological

ECONOMIC

• Maintaining a sustainable population.

• Maintaining productivity and profitability of environment and natural resources.

ECOLOGICAL

• Adopting environmental management methods in policy and decision making.

• Protecting the environment and conserving natural resources.

TECHNOLOGICAL

• Promoting proper management of wastes and residuals.

• Adopting environment-friendly technologies.

• Not having technological development at the cost of environment.

POLITICAL

• Empowering the people.

• Maintaining peace and order.

• Maintaining world peace through various organizations.

SOCIO-CULTURE
• Promoting resource access and upholding property rights.

• Promoting environmental awareness, inculcating environment ethics and supporting

environment management action.

INSTITUTIONAL

• Improving institutional capacity/ capability to manage sustainable development.

• Teaching youth about the importance of sustainable development

INDIAN JUDICIARY AND SUSTAINABLE DEVELOPMENT

Vellore Citizen Welfare Forum vs. Union of India, AIR 1996 SC 2715- The doctrine of
Sustainable Development was implemented by the Supreme Court of India

• In Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664- observed that
"Sustainable Development means what type or extent of development can take place, which
can be sustained by nature or ecology with or without mitigation".

• In T.N. Godavaraman Thirumulpad vs. Union of India, (2008) 2 SCC 222, the Hon'ble
Supreme Court said "as a matter of preface, we may state that adherence to the principle of
Sustainable Development is now a constitutional requirement. How much damage to the
environment and ecology has got to be decided on the facts of each case"?

• In Indian Council of Enviro-Legal Action vs. Union of India, 1996 (5) SCC 281 the Apex
Court held: "while economic development should not be allowed to take place at the cost of
ecology or by causing widespread environment destruction and violation; at the same time, the
necessity to preserve ecology and environment should not hamper economic and other
developments".

In the case of M.C. Mehta v. Kamal Nath, [1997] 1 SCC 388, the Supreme Court dealt with
the Public Trust Doctrine in great detail: The Court observed: as under:

• "35. We are fully aware, that the issues presented in this case illustrate the classic struggle
between those members of the public who would preserve our rivers, forests, parks and open
lands in their pristine purity and those charged with administrative responsibilities, who, under
the pressures of the changing needs of an increasingly complex society, find it necessary to
encroach to some extent upon open lands heretofore considered inviolate to change. The
resolution of this conflict in any given case is for the legislature and not the court. If there is a
law made by Parliament or the State Legislatures the courts can serve as an instrument of
determining legislative intent in the exercise of its powers of judicial review under the
Constitution. But in the absence of any legislation, the executive acting under the doctrine of
public trust cannot abdicate the natural resources and convert them into private ownership, or
for commercial use. The aesthetic use and the pristine glory of the natural resources, the
environment and the ecosystems of our country cannot be permitted to be eroded for private,
commercial or any other use unless the courts find it necessary, in good faith, for the public
good and in public interest to encroach upon the said resources:"

• The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea,
waters and the forests have such a great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private ownership. The, said resources being a
gift of nature, they should be made freely available to everyone irrespective of the status in life.
The doctrine enjoins upon the Government to protect the resources for the enjoyment of the
general public rather than to permit their use for private ownership or commercial purposes.
Precautionary Principle
An Ounce of Prevention is Worth A Pound of Cure

▪ The precautionary principle originated in Germany were it formed part of its environmental
policies since the mid 1970's. The German equivalent of the precautionary principle, the
Vorsorgeprinzip.

▪ The principle is evolved to provide a legal basis for environmental regulation in the face of
scientific uncertainties.

▪ The precautionary principle emphasized by the United Nations Conference on Environment

and Development (UNCED), held in Rio de Janerio in the year 1992, signifies a preventive
approach:

▪ “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.” (Rio
Declaration 1992, Principle 15).

A stitch in time saves nine

▪ A stronger definition can be found in an EU communication:

The precautionary principle applies where scientific evidence is insufficient, inconclusive or

uncertain and preliminary scientific evaluation indicates that there are reasonable grounds for
concern that the potentially dangerous effects on the environment, human, animal or plant
health may be inconsistent with the high level of protection chosen by the EU (EU, 2000).

Content of the Precautionary Principle in International Treaties

Preamble to the Vienna Convention for the Protection of the Ozone Layer.

▪ The Montreal Protocol was introduced in 1987 where the signatories agreed to undertake
precautionary measures to control the emission of substances which depleted the ozone layer.
▪ The need to adopt which were precautionary in nature was also recognized in the Second
North Sea Conference Ministerial Declaration (the London Declaration) in 1987.
▪ At the Third Sea Conference, the parties came to a decision that they would continue applying
preventive measures to prevent damage, even there is no scientific evidence. The precautionary
principle was also included in the Convention on the Protection of the Marine Environment of
the North-East Atlantic, which was introduced in the year 1992.

▪ In the year 1992, the signatories of the Helsinki Convention on the Protection and Use of
Transboundary Watercourses and International Lakes were introduced. The signatories to this
Convention decided to be guided by the Precautionary Principle. -Helsinki Convention on the
Protection and Use of Transboundary Watercourses and International Lakes: Article 2(5) (a).

Prevention Precaution
▪ Preventive Measures - Premised on risks that were certain to eventuate. It is based on the
concept of certain risk.

▪ Precautionary Measures - Taken in circumstances where damage has not yet occurred, and
indeed where there is no irrefutable proof that it will occur. It is premised on a perfect
understanding of any given risk, rather it is sufficient that a risk be suspected, conjectured, or
feared. Precaution is triggered by risk potential, and it often requires a risk analysis.

Prevention Precaution: Paradigm Shift

In International Law, precaution and prevention are considered two distinct principles.
▪ The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS),
in its Advisory Opinion, held that precaution and prevention form part of the obligation of due
diligence:
“The due diligence obligation of the sponsoring States requires them to take all appropriate
measures to prevent damage that might result from the activities of contractors that they
sponsor. This obligation applies in situations where scientific evidence concerning the scope
and potential negative impact of the activity in question is insufficient but where there are
plausible indications of potential risks.” (Advisory Opinion, order dated February 1, 2011)

▪ Precaution, it seems cannot be limited to activities that are recognised as involving a

significant risk of harm. Rather it extends to taking appropriate measures to identify activities
that involve.

Interpretation
▪ Weaker Version: Application to instances of “threats of serious or irreversible damage” or
impose duty on states to take “cost effective measures” as per their capabilities.
▪ Stronger Version: Reversal of Onus of Proof:

▪ The potentially risky activity is banned until the proponent of the activity demonstrates that
it poses no risk. The burden of proof shifts to the proponent of the activity to demonstrate that
the activity is benign, and a standard of proof – acceptable risk, or no risk is set.

▪ Unless an activity is proved to be environmentally benign in real and practical terms, it is

presumed to be environmentally harmful.

▪ Industrialists are required to discharge their burden by showing the absence of a ‘reasonable
ecological or medical concern ‘. ‘If insufficient evidence is presented by them the presumption
should operate in favour of environmental protection.’- (APPCB v. MV Nayudu).

Legal Status

International legal status of this principle is still in evolution. International courts and tribunals
have remained cautious about declaring that the principle has acquired customary status, only
going so far as to suggest that there is a trend towards making precaution part of custom.
▪ In 2011 Advisory Opinion, the Seabed Disputes Chamber of ITLOS noted that ‘the
precautionary approach has been incorporated into a growing number of international treaties
and other instruments, many of which reflect the formulation of Principle 15 of the Rio
Declaration. In the view of this chamber, this has initiated a trend towards making the approach
part of customary international law.

Precautionary Principle as a General Principle of Law Recognised by Civilised Nations

General principles of law recognised by civilised nations are a source of international law as
per Article 38(1)(c) of the Statute of the ICJ.

▪ As the precautionary principle has been formulated and applied in domestic law of various
states, it is worthwhile to explore whether the argument to recognise the precautionary principle
as a norm of international law can be supported.

▪ The Precautionary Principle has been a part of Germany’s domestic policies since the 1970’s.
The UK incorporated precaution in White Papers, dating back to the 1990 and in its
environmental strategy. The United States, too has the principle incorporated in its National
Environmental Policy Act (NEPA), 1969.

Precautionary Principle in International Judicial Decisions

Judicial decisions are a subsidiary means for the determination of international law as per
Article 38(1)(d) of the ICJ statute.

The International Court of Justice Pulp Mills on the River Uruguay (Argentina v. Uruguay
2010)- the International Court of Justice noted that, while a precautionary approach may be
relevant in the interpretation and application of the treaty agreed between both states, it does
not follow that it operates as a reversal of the burden of proof.
In a significant section of the judgment, the ICJ noted that the obligation to undertake an
environmental impact assessment where there is a risk that the proposed activity may have a
significant adverse impact in a trans-boundary context, has gained so much acceptance among
States that it may now be considered “a requirement under general international law.

Second Nuclear Tests Case, Advisory Opinion, (1996) ICJ Rep 226- The ICJ came close to
giving a decision on the precautionary principle. New Zealand contended on the basis of the
precautionary principle being a norm of international law and even sought a reversal of burden
of proof. The ICJ did not decide the merits and the case was dismissed on technical grounds.
However, Judge Weeramantary, in his dissenting opinion, concluded that the precautionary
principle is already a norm of international law and a sine qua non for human survival and held
that reversal burden of proof is an essential element of the principle.

In GabcÃkovo-Nagymaros case, Hungary v. Slovakia, (1997) ICJ Rep 7:- the ICJ The Court
acknowledged that prevention was fundamental feature of environmental protection, due to the
often-irreversible nature of the possible damage but its view on precautionary principle
remained vague.
▪ The Law of the Sea Tribunal

▪ The Southern Bluefin Tuna (SBT) Case, (New Zealand v. Japan; Australia v Japan)- is a
landmark judgment of the tribunal on the application of the precautionary principle. Applying
the principle, the tribunal, Japan was enjoined from further fishing of SBT to ensure effective
preservation of SBT resources, to prevent its permanent depletion. The Tribunal stated that
scientific uncertainty was not a ground for failing to protect the future depletion of the resource.

This is a deviation from the traditional notion embedded in Article 61(2) of the Law of the Sea
Convention where conservation measures should be based on scientific evidence available.

▪ This case was a ground breaking because it used the precautionary principle as a standard,
giving it a normative value and implemented the principle as a remedy.

▪ As the decision was only for provisional measures, the tribunal applied the principle to play
a neutral role by preserving the situation, avoiding deterioration of the resource while awaiting
the final decision on the substantive issues of the case.
The Judiciary and the Precautionary Principle in India

Precautionary Principle and its judicial application in India

•In Vellore Citizen Welfare Forum v Union of India (1996) 5 SCC 647 at 658, the Supreme
Court identified three elements to the precautionary principle:

1. ‘[e]nvironmental measures- by the State government and the statutory authorities - must
anticipate, prevent and attack the causes of environmental degradation; (Principle of
Prevention)

2. ‘[w]here there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental degradation;
(a step beyond mere prevention)

[Link] ‘onus of proof’ is on the actor or developer or industrialist to show the actions are
environmentally benign (as conceived by the Court, as the strong version.)
Vellore, the Patriarch
▪ Sustainable development was substantially introduced into Indian environmental
jurisprudence in Vellore Citizens’ Welfare Forum v. Union of India and Others, (1996) 5 SCC
647, wherein a suit brought against the State of Tamil Nadu in response to reports that tanneries
in the State were discharging effluents into the river Palar, a major source of drinking water. In
response, the Supreme Court used the frame of Sustainable Development to conclude that the
economic benefits of the leather industry notwithstanding economic interests could not be
allowed to, ‘destroy the ecology, degrade the environment and pose as a health hazard’ to the
public at large. – Vellore Para 09
▪ Vellore endorsed the Brundtland Commission’s definition of sustainable development and
listed some ‘salient principles sustainable development ‘culled out’ from the Brundtland
Report, ‘and other international documents. The Court noted that polluter pays principle and
the precautionary principle were ‘essential features’ of sustainable development, and extended
customary –norm status to these principles.

A.P. Pollution Control Board v. Prof. M.V. Nayadu (Retd.) and others AIR 1999 SC 812
the court in this case had clarified the meaning of the principle for application by Indian Courts.
The Supreme Court has for the first time in this decision referred to scientific uncertainty as
the basis for the precautionary principle. The Court proceeded with the assumption that the
precautionary principle is a customary norm of international law. The Court elaborated the
"reverse onus of proof" principle upheld in the Vellore Case and justified it, though not
commenting on the dispute of whether it is an integral part of the precautionary principle.
Therefore, apart from mentioning scientific uncertainty as the basis for the precautionary
principle, this decision has merely reiterated the Vellore position on the content of the
precautionary principle.

MC Mehta versus Union of India and others (1997) 2 SCC 353 (Taj Trapezium Case) -
the Court precluded industries located in the proximity of Taj Mahal from burning coal for their
operations, by applying the precautionary principle. Once again, it acknowledged that the
adverse impacts of coal burning on Taj were “established beyond doubt”, i.e., there was no
evident scientific uncertainty in that regard. Regardless, the Court relied on the precautionary
principle to support its decision.
THE TAJ TRAPEZIUM ZONE

▪ The Supreme Court took cognizance of this matter in January 19 9 3 a n d adopting the
continuous mandamus procedure, has passed a spate of orders over the years to protect the
monument.

▪ An area of 10, 400 sq. km. around the monument has been declared as the Taj Trapezium
Zone.

DIRECTIONS –

▪ In 1995- 292 industries were directed to be run on natural gas.

▪ In 1996- Expert Committee constituted to inspect the progress of the green belt around Taj
Mahal.
▪ In 1997 – Agra Mission Management Board was constituted.

▪ In 1998- a number of antipollution measurers were ordered including a complete ban on

vehicular traffic in the immediate vicinity.

TAJ TRAPEZIUM AUTHORITY

▪ The Taj Trapezium Zone Pollution (Prevention & Control) Authority was set up in 1999.

▪ The authority has been tasked with monitoring and implementing various schemes for the
protection of Taj Mahal.
▪ It has also been tasked with improving the environment in the area and ensuring that emission
standards are complied with by motor vehicles in the area.

▪ Directions ▪ 2000- 4 Ambient Air Quality Monitoring Station were installed in the Agra region
to monitor the air quality. The reports are submitted regularly to the Supreme Court for
Monitoring.
▪ 2010- A major restoration of the Taj Mahal Complex was undertaken on the directions of the
Supreme Court as cracks had started to appear in parts of the tomb and the surrounding minarets
caused by tilting due to a decline in the groundwater level in the Yamuna River basin.

TTZ: Further Directions

The Uttar Pradesh government has been directed o submit a comprehensive vision document
and to protect and preserve Taj Mahal and its environment.

▪ A “No-Construction” zone has been declared with a 500-meter radius of the Taj.
 ▪ The Central Pollution Control Board has directed the State Government to shut down or
relocate a crematorium which is falling within the TTZ as it is adversely impacting the
environment.

TTZ Case- MONITORING BY THE SUPREME COURT T

The Court has been directly monitoring the following issues relating to the pollution problems
of Agra City:

1. Industries located in Agra including foundry units;

2. Compliance of the directions of the Supreme Court by the Mission Management Board;

3. Traffic management & encroachments within the 500-metre zone of the Taj Mahal;

4. Agra Heritage Fund;

5. Opening of Taj Mahal in the night

6. Unauthorized construction within 100 meters from the southern gate of the Taj Mahal;
7. Supply of gas to the industries located in Firozabad;

8. Brick Kilns located 20 km away from Taj Mahal or any other significant monument in the
TTZ area, including the Bharatpur Bird Sanctuary;

9. Promotion of non-Conventional Energy Source; and

[Link] up the security of Taj Mahal.

Precautionary Principle position in India

In Narmada Bachao Andalon v Union of India (2000) 10 SCC 664,

"In the present case what is being established is a large dam the dam is neither a nuclear
establishment nor a polluting industry....“ The judgment presents the most bizarre and
problematic application of the principle. In the majority judgement, the Court negated its
application on the assertion that, environmental impacts of dams were neither uncertain, nor
catastrophic for the environment. The Court omitted to consider two pivotal facts highlighted
in Justice Barucha’s dissenting opinion. First, at the time of issuing the environmental clearance
in 1986, contemporaneous Notes prepared by the two Union Ministries explicitly admitted that
the impacts of the Sardar Sarovar dam on the surrounding region were unclear. Second, even
after the environmental clearance was issued, no environmental impact assessment was carried
out to ascertain such impacts. In 1993, an independent review committee, the Morse
Commission indicated that the project posed a threat to environment and human health.
However, its findings were contested.

Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338

Okhla Bird Sanctury v. Anand Arya, (2011) 7 SCC 74

Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338- The case
concerns with limestone mining in Meghalaya by Lafarge. The limestone has to be transported
by a conveyor belt to the cement plant in Bangladesh. The state government under a
misconception that the mine was not situated in a forest land, and therefore Lafarge did not
seek the permission of the central government. However later when it was realised that the land
was situated in forest area, permission was granted with retrospective effect. The retrospective
grant of permission was challenged before the Supreme Court. The petitioner alleged that
Lafarge deliberately hid the facts that the mine was in forest land. As the mining had already
begun in the mine because of misrepresentation, clearance had to be given. The allegation was
that Lafarge was taking advantage of its own wrong. The court addressed the problem on a
different note. The Court began with the relativity of the concept of sustainable development.
The Court observed that environmental conflicts are eradicable and environmental protection
is always a matter of degree, inescapably requiring choices as to appropriate level of
environmental protection and the risks which are to be regulated. In effect the court meant the
concept of sustainable development is flexible and the court would prefer to go with the
governmental retrospective approval.
Beautification even at the cost of environment is considered necessary for the development of
industrial society and efficient capitalism.

▪ In Okhla Bird Sanctury v. Anand Arya, (2011) 7 SCC 74: For the construction of Park at
NOIDA, the Supreme Court approved the construction of a Park, which required the axing of
6186 live trees, subject to the supervision of an expert body, on the technical grounds that
according to the revenue records of 1952, the land over which the forest was developed was
uncultivable, though it was alleged that the Park would adversely affect the nearby Bird
Sanctuary.

Research Foundation for Science (18) v Union of India (2005) 13 SCC 186,(Ship breaking
industry at Alang) Court observed that ‘order to achieve sustainable development
environmental protection shall constitute an integral part of the development process and
cannot be considered in isolation from it,…the ship breaking operation cannot be permitted to
be continued without strictly adhering to all precautionary principles’. The Court ordered that
‘before a ship arrives at port, it should have proper consent from the concerned authority or the
State Maritime Board, stating that it does not contain any hazardous waste or radioactive
substances onboard’. The Court obliged that all ships ‘should be properly decontaminated by
the ship owner prior to the breaking’

▪ Research Foundation for Science Technology and Natural Resources Policy v Union of
India (2007) 15 SCC 193 (Blue Lady Case)- The court noted that ‘while applying the concept
of “sustainable development” one has to keep in mind the “principle of proportionality” based
on the concept of balance.

Section 20 of the National Green Tribunal Act, 2010 declared the precautionary principle to
be an integral part of national environmental law:
“Section 20. Tribunal to apply certain principles-The Tribunal shall, while passing any order
or decision or award, apply the principles of sustainable development, the precautionary
principle and the polluter pays principle.”

NGT Decisions

▪ In Jeet Singh Kanwar v. MoEF and Others, Appeal No. 10/2011 judgment dated 16 April
2013- NGT (Principal Bench) quashed an environmental clearance for a coal-based thermal
power plant on the grounds that MoEF had not properly considered the precautionary principle.
▪ In Sarang Yadwadkar and Ors v. The Commissioner, Pune Municipal Corporation and
Ors, Application No. 2/2013 judgment dated 11 July 2013 NGT (Principal Bench)- the NGT
defines the precautionary principle as the principle of prevention. The NGT notes that the
principle of precaution involves anticipation of environmental harm and taking measures to
avoid it or to choose the least environmentally harmful activity.

In S.P. Muthuraman and Ors v. Union of India, OA No. 37/2015, judgment dated 7 July 2015,
NGT (Principal Bench), para 158, NGT notes that the ‘precautionary principle is proactive
method of dealing with the likely environmental damage. And the purpose should be to avert
major environmental problem before the most serious consequences and side effects would
become obvious.

▪ In M/s Sterlite Industries (India) Ltd. Thoothukudi v. The Chairman, Tamil Nadu Pollution
Control Board, Chennai, Appeal No. 22/2013, judgment dated 8 August 2013, NGT (Principal
Bench), the NGT identified the essentials for the invocation of the precautionary principle as,
(a) there should be an imminent environmental or ecological threat in regard to carrying out of
an activity or development; (b) such a threat should be supported by reasonable scientific data;
and c) taking precautionary, preventive or prohibitory steps would serve the larger public and
environmental interest.
In Goa Foundation and Anr v. Union of India and Others, judgement dated February 6, 2013,
the NGT noted that ‘an anticipated or likely injury to environment can be sufficient cause of
action partially or wholly for invoking the jurisdiction of the Tribunal. And ‘inaction in the
facts and circumstances of a given case could itself be a violation of the precautionary principle
therefore bring it within the ambit of jurisdiction of the Tribunal as defined under the NGT
Act.”

Hospitality Association of Mudumali v. In defence of Environment and animals and others

, (2020) 10 SCC 589

▪ It was held that State Government is empowered to take measures to protect forests and
wildlife falling within its territory in light of entries 17-A "forest" and 17-B "Protection of wild
animals and birds" in the concurrent list of the Constitution and the power of the State
Government under the Wildlife (Protection) Act, 1972 to notify sanctuaries and other protected
areas in regard to private forest land, the State Government is empowered to protect the habitats
situated on the land in dispute by notifying an elephant corridor thereupon. Article 21, 47, 48-
A and 51-A(g) give a clear mandate to the State to protect and improve the environment and to
safeguard the forests and wildlife of the country.

The "precautionary principle" which is a part of the law of the land makes it mandatory for the
State Government to anticipate, prevent and attack the causes of environmental degradation. In
view of this matter, it was held that in order to protect the elephant population in the region in
dispute it was necessary and appropriate for the State Government to limit commercial activity
in the areas falling within the elephant corridor.

Amarnath Shrine. In Re v Union of India, (2013) 3 SCC 247

▪ Dealing with religious tourism and the impact on environment. It was observed by the court
that inter-generational equity is treated to be an integral part of Article 21 of the Constitution.
The Courts have applied this doctrine of Sustainable Development and Precautionary Principle
to the cases where development is necessary, but certainly not at the cost of environment. The
Courts are expected to drive balance between the two. In other words, the onerous duty lies
upon the State to ensure protection of environment and forests on the one hand as well as to
undertake necessary development with due regard to the fundamental rights and values. Thus,
appropriate balance between different activities of the State is the very foundation of the socio-
economic security and proper enjoyment of the right to life.

In Hanuman LaxmanAroskar v. Union of India (2019) 15 SCC 401 the Supreme Court had
imposed an embargo on Environmental Clearance for the development of International Airport
at Mopa, Goa.

▪ In a case challenging the grant of an Environmental Clearance (EC) for the development of a
greenfield international airport at Mopa in Goa, the Division Bench of the Apex Court directed
Expert Appraisal Committee (EAC) to revisit the conditions subject to which it granted its EC
within a month.
Court observed “There can be ‘no gambles with the environment: a ‘heads I win, tails you lose’
approach is simply unacceptable if we are to preserve environmental governance under the rule
of law.”

▪ Health of Environment is the key to preserve the right to life under Article 21.

▪ We cannot gloss over the patent and abject failure of the State of Goa as the project proponent
in failing to disclose wet lands, water sources, water bodies, biosphere, mountains and forests
within an aerial distance of 15 kms as requird by Form 1. The disclosure in Form 1 constitutes
the very foundation of the.

…. There is considerable implementation gap between the requirements of environmental laws

and their implementation and enforcement- both in developed and developing countries alike.
The environmental rule of law seeks to address this gap. The environmental rule of law
provides an essential platform underpinning the four pillars of sustainable
developmenteconomic, social, environmental, and peace. It imbues environmental objectives
with the essentials of rule of law and underpins the reform of environmental law and
governance. The environmental rule of law becomes a priority particularly when we
acknowledge that the benefits of environmental rule of law extend far beyond the
environmental sector.

While the most direct effects are on protection of the environment, it also strengthens rule of
law more broadly, supports sustainable economic and social development, protects public
health, contributes to peace and security by avoiding and defusing conflict, and protects human
and constitutional rights.

▪ Amartya Sen argued for a broadening of the notion of sustainable development which is the
most dominant theme of environmental literature, from a need-based standard to a standard
based on freedoms. Thus recharacterized, it encompasses the preservation, and when possible
even the expansion of the substantive freedoms and capabilities of people today without
compromising the capability of future generations to have similar or more freedoms. The
intertwined concepts of environmental rule of law thus further intragenerational as well as
intergenerational equity.